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ALSO BY MORTIMER
ADLER
J.
Dialectic
What Man Has Made of Man
How How
to
Read a Book
Think About
to
War and
Peace
The Capitalist Manifesto (with Louis
C).
Kelso)
The Idea of Freedom The Conditions of Philosophy The Difference of Man and
the Difference It
Makes
The Time of Our Lives The
Common
Sense of Politics
The American Testament (with William
Some Questions
A bout
Gorman)
Language
Philosopher at Large
Reforming Education Great Treasury of Western Thought (with Charles Aristotle for Everybody
How
to
Think About God
Six Great Ideas
The Angels and Us The Paideia Proposal
How
to
Speak! How to Listen
Paideia Problems and Possibilities
A
Vision of the Future
The Paideia Program l
en Philosophical Mistakes
.4
Guidebook
to
Learning
Van Doren)
WE
H )LD T H ES E TRUTHS (
UNDERSTANDING THE IDEAS AND IDEALS OF THE CONSTITUTION Mortimer J. Adler Foreword by
Harry
A.
Blackmun
Associate Justice of the United States
With Annotated Appendices by
Supreme Court
Wayne Moquin
COLLIER BOOKS
MACMILLAN PUBLISHING COMPANY NEW YORK COLLIER MACMILLAN PUBLISHERS
LONDON
©
Copyright All rights reserved.
1987 by Mortimer J. Adler
No part of this
book may be reproduced or
transmitted in any form or bv any means, electronic or mechanical,
including photocopying, recording, or by any information
storage and retrieval system, without permission in writing from the Publisher.
Collier Books
Macmillan Publishing Company 866 Third Avenue, Collier
New
York, N.Y. 10022
Macmillan Canada,
Inc.
Library of Congress Cataloging-in-Publication Data Adler,
Mortimer Jerome, 1902-
We
hold these truths. Includes index.
1.
United States
KF4550.A725
— Constitutional
1987b
ISBN
law.
I.
4 2.73'o29 0-02-064130-3 (pbk.)
at special
itle.
87-9365
3
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9
8
7
Books Edition 1988
6
5
4
3
2
1
Printed in the United States of America
We Hold
These Truths
is
also published in a hardcover edition
by Macmillan Publishing Company.
To
W
I
the
Memory
LL AM I
of
GORMAN
1
Contents
Foreword by
Harry A. Blackmun,
Associate Justice
,
United States Supreme Court
ix
PART ONE Important Prefatory Considerations 1.
The Two
2.
A More
3.
Every Citizen, Both Young and Old
4.
Should
5.
The
Bicentennials
Perfect
Know
3
Union
10 18
and Understand
23
Ideas and Ideals of the Constitution
28
PART TWO The Underlying Ideas
in the Declaration
Whole
6.
Introduction: Understanding the Declaration as
7.
Human
8.
Inalienable Rights
47
9.
The
5
Equality
Human
Securing
1
The Consent
1
.
12.
The
35
42
Pursuit of Happiness
10.
a
Rights: Civil Rights
of the Governed
69
Dissent of the Governed [
62
76 vii
]
Contents
viii
P
A R
T
I
HREE
The Preamble's Ideals 13.
We,
14.
To
15.
To Ensure Domestic
16.
To
17.
To Promote
18.
To
the People: Citizen-Constituents
Establish Justice
Provide for the
94 Tranquility
Common
103
Defense
107
the General Welfare
1
Secure the Blessings of Liberty
l'he
19.
83
123
Defects of the Eighteenth-Century Constitution
PART
F
()
15
U
131
R
The Emergent Ideal of Democracy 20.
From Liberty
21.
From
22.
What Remains
to Equality
Political to
to
137
Economic Rights
145
Be Done?
156
PARI' FIVE Three Documents That Comprise the American Testament I.
II.
III.
l'he Declaration of
The
Independence
165
Constitution of the United States of America
The Gettysburg Address
A
P P
170 194
E
NDIC E S
Annotated Excerpts from Historical Documents A.
The
Constitutional Convention of 1787
B.
The
Federalist
C.
Commentaries on the Constitution from 1796
1
).
197
and Anti-Federalist Papers
205 to 1923
229
Judicial Interpretations of the Constitution
238
Index
272
—
Foreword
When Mortimer Adler
writes, his observations are always de-
The reader will inevitably learn But when Dr. Adler writes about the
serving of the fullest consideration.
and
from that writing.
profit
Constitution of the United States
may
erly
at this
be said that one has nothing
bicentennial time,
less
it
prop-
than a duty to read and
to learn.
This book
sets forth
bedrock knowledge about the government
which we have structured and which has existed on the Atlantic
now
for
two hundred
this side of
years. Familiarity with
and un-
derstanding of the Constitution, our “blueprint” for government,
and the amendments thereto
— the
and
are in terms of mandate,
in
most important ones of which
language that
and that bends but does not break
ible,
in the
hot
is
fire
broad and
of experience
are basic to an understanding of ourselves as a people.
tution little
is
about
While and
what we
is
by
live
in this nation.
Too many
The
of us
Consti-
know
too
it.
this
book
is
written by a most distinguished philosopher,
naturally and admittedly philosophical in approach,
able and uncomplicated.
has attained his goal. ideals of
flex-
That was the author’s
There
is
no excuse
for not
it is
intention,
read-
and he
understanding the
our Constitution.
Dr. Adler stresses the important,
obvious but so often
is
much
of which ought to be
not, as, for example, that “citizenship
[ix]
is
the
Foreword
X
primary
political office
under
a constitutional
Declaration of Independence, with
its
all
government,” that the
magnificent pronounce-
ments, did not bring this nation into existence happiness, the pursuit of which
“depends
in part
is
among
1776, and that
in
the “unalienable” rights,
on our possession of moral
virtue.”
I
could go on,
but one should make such exciting discoveries on his own. Dr. Adler reminds us that, despite our proper reverence for the Constitution as
amended
to date,
it is
not perfect and thus
of attaining the ideal of democracy for which is
among
strive
rights in the
and which
He stresses the protection of inalienable
economic sphere,
as well as in the political
arena, as a condition for the equal enjoyment of liberty
There
short
the promises of the Declaration of Independence and of
the Constitution’s Preamble.
human
we
falls
may be
those
who
disagree.
And
by
all.
there will be those
who
disagree, at least in part, with his observations in the final chapter as to
what “remains
to be done.”
acknowledges that he does not know
But all
in this
chapter Dr. Adler
the answers and so proceeds
interrogatively rather than declarativelv.
This think.
is
good
That
The book
is is
and Dr. Adler makes us
grist for serious thinking,
usually
what he wants
w
his
ritings to accomplish.
needed and timely.
I
larry A.
Blackmun
Associate Justice
United States Supreme Court
W ashington
,
August u)H 6
D.C.
PART ONE Important Prefatory Considerations
CHAPTER
The Two
1
Bicentennials
we celebrated what we called the bicentennial of the United States of America. But that is not what it was. The United States of America did not come into existence in 1776. What existed then were thirteen colonies of King George III who were at war with British troops on this continent. The fighting had begun almost a In 1976
year before, but
it
was not
until July 4,
1776, that the colonies
declared their independence of Great Britain and gave their reasons for
doing
so.
What we
celebrated on July 4,
1976,
was the two hundredth
anniversary of the promulgation of the Declaration of Independence. It
was
a bicentennial,
ica, a single,
The
indeed, but not of the United States of
sovereign nation,
Amer-
a federal republic.
closing paragraph of the Declaration of Independence opens
with these words: “We, therefore, the representatives of the United States of America, in general Congress assembled.
...” The rep-
resentatives assembled in the Continental Congress at Philadelphia
did not represent a single nation which could then be designated by the proper
name “The United
States of America.”
thirteen sovereign states. United they fight together for their
were
They
represented
in their resolution to
independence, but they were united
in
no
other way.
Seven years from
a military
later, in
1783, the thirteen colonies,
now emerging
victory as independent, sovereign states, entered into
[3]
W e Hold
4
an agreement or contract w in
ith
one another
These Truths remain loosely united
to
The army
peace as they had been in war.
that
had successfully
fought that war was called “the continental army,” not the
army of
the United States.
The loose union
was expounded
w hich
into
they entered for peaceful relationships of Confederation.”
in the “Articles
The subheading
of this document reveals that these articles did not form or constitute a single,
sovereign nation, for
it
reads: “Articles of Confederation
and Perpetual Union Between the States ...”
after
which follows
an enumeration of the names of the thirteen colonies in an order dictated
bv
their geographical location
In 1787, after the loose union states
state
from north
to south.
formed by these thirteen sovereign
gave signs of ceasing to be perpetual, representatives of each
met once again
Philadelphia to form a
in
more
perfect union,
one that had more likelihood of becoming perpetual and
also of
preserving peace on this continent.
The document framing and formulating that more was entitled “The Constitution of the United States It
was properly
called a “constitution” for
it
perfect union
of America.”
did two things that a
constitution should do. In the first place,
did constitute a single, sovereign state, unlike
it
the Articles of Confederation (and also unlike the Charter of the
United Nations), which did no more than establish an alliance of
number of independent relation to to
become In the
all
a
states,
each of which remained sovereign
the others, as sovereign as each
member
was before
it
its
several branches of that
power vested
When we
how
in
purposes, limited
shall
filled
established a
scope, indicated the offices of
each
and how the authority and
be related to one another.
today use the words “United States of America,”
are referring to the nation that
that comprise the
ration of
its
it
government, and defined the
they shall be
each
agreed
did w hat the Articles of Confederation (or
the Charter of the United Nations) could not do:
branch, saying
in
of the confederacy.
second place,
government, outlined
it
a
is
one of the many sovereign
United Nations. But w hen,
Independence,
in
its
in
we
states
1776, the Decla-
concluding paragraph, introduced
Two
The
who
those
Bicentennials
5
signed the Declaration by referring to them as “the rep-
resentatives of the United States of America, in general Congress
assembled” those same words
— “United States of America” — had
a
different meaning.
The
thirteen colonies of Great Britain
on the North American
continent were united in their determination to be independent of British rule. If they
won
their
war
for
independence, they wished
As they were auspices of their Con-
to establish themselves as thirteen sovereign states.
cooperatively engaged in that war under the
tinental Congress, they could properly refer to themselves as the
united states of America, but not as the United States of America in the sense in
How,
which we now understand those words.
then, shall
tysburg Address
we
interpret the opening lines of Lincoln’s Get-
— “Four
score and seven years ago our fathers brought
new nation”? What came into existence in that is, a new national state 1776 was certainly not a new nation comparable to Great Britain, France, or Spain. What came into existence then w as a new people who, through the Declaration, sought forth
on
this continent a
—
to justify in the eyes of the
world their separation from the people
of Great Britain and their right “to assume, the earth, the separate and equal station to
and of nature’s In order to right, this
won
God
entitle
assume the
new
w hich
the powers of
the laws of nature
them.”
station to
people had,
among
first
of
which they thought they had
all,
to
win
a
war.
If
they had not
that war, they could not have tried to perpetuate their inde-
pendent status under the Articles of Confederation. Four years these
form
a
two things having been accomplished, they could then a
more
perfect union
later,
try to
bv drafting and adopting the Constitution
of the United States, in the Preamble to which they refer to themselves as
“We, the people of the United
The words “United that
States.
...”
States” occurs tw ice in the Preamble,
opening phrase, then
in the closing,
which says
that
first in
we, the
people “do ordain and establish this Constitution for the United States of America.” In
its
first
occurrence, “United States” would have been more
accurately written “united states,” for the
same reason
that
it
should
We Hold These Truths
6
have been written that way
in the last
of Independence, because the nation
paragraph ot the Declaration
now known as
of America did not exist in 1787 any more than In as
its
the United States
it
did in 1776.
second occurrence, “United States” should be interpreted
having
state that
a
prospective reference.
would come
refers to the nation or national
It
into existence only after the
document drafted
by the Constitutional Convention during the summer of 1787 was ratified or adopted by three-quarters of the thirteen states to be united. That did not occur until August of 1788. fell
in line
somewhat
take office as the
first
than
later
that.
The remaining
George Washington did not
President of the United States until
1789; not until that year did the
first
states
March of
Congress of the United States
assemble; and not until then were there ambassadors from the United States to the courts of the
European
In political as in biological
conception and birth.
life
there
What we
nations. is
a
period of gestation between
are celebrating in the year 1987
the bicentennial of the conception, not the birth, of the
from 1789 on could be properly referred States of America.
that only
The
Constitution that was drafted
in
new
to as the
is
nation
United
Philadelphia in 1787 and
then sent to the Confederation Congress, meeting
in
New
York, for
transmittal to the thirteen states presented the conception of a gov-
ernment
that
was both
failed to
win
a sufficient
national and federal. If that conception had
number of
republic, thus conceived,
ratifying adoptions, the federal
would not have come
into existence in
789Since the Constitution established state,
make war and
states
still
retained
peace, to enter into alliances with one another or with
foreign nations, to
measure of
The
union, not a unitary
some measure of surrendered only their power to
each state entering the union
individual sovereignty.
a federal
make
treaties,
and so on.
local or internal sovereignty
They retained some
over the citizens residing
within their borders.
A
dual sovereignty was thus established: one that was national,
the sovereignty of the federal government; and thirteen local sovereignties, the sovereignty of each of the states adopting the
Con-
Two
The
stitution.
also
had
Bicentennials
The
citizens
1
who made up
a dual citizenship.
the people of the United States
They became
citizens of the
States but also remained citizens of Massachusetts,
new United
New York,
Penn-
sylvania, Virginia, and the other states.
While the Declaration of Independence,
as
promulgated on July
1776, did not bring this nation into existence or establish the
4,
government of the United States of America,
it
magnificently enun-
ciated the fundamental principles of republican or constitutional
government tution
— principles
that are not stated explicitly in the Consti-
itself.
The
Declaration was, therefore, in the most profound sense,
more fundamental politically than Constitution’s own Preamble. Since the word “preface” lacks preface to the Constitution,
a
the the
dignity and weight that should be accorded the Declaration in relation to the Constitution,
we
architectural blueprint for the
should perhaps think of
government of the United
it
as the
States.
This understanding of the relationship between the Declaration
and the Constitution (and their related bicentennials) was expressed in a
book published
in
1976, written by
William Gorman, an associate search.
That book,
three parts.
The
at
me
in collaboration
the Institute for Philosophical Re-
entitled The American Testament
first
with
,
was divided
into
dealt with the Declaration; the second with
the Preamble to the Constitution; and the third with Lincoln’s Get-
tysburg Address.
To
call
these three
that, together
and
documents “the American testament”
in relation to
one another, they are
like
is
to say
the sacred
scriptures of this nation.
From
the
first
critical exegesis,
document, by the most careful interpretation and
we
can derive the nation’s basic
articles
of political
faith.
From ble
and
the second, together with the articles that follow the Preamtheir
subsequent amendments, we can come to understand
the elaboration of those articles of political faith in terms of govern-
mental aims, governmental structures, and governmental policies.
An coln’s
equally careful reading of the third gives us, in spite of Lin-
incomparable brevity,
a full, rich
confirmation of our faith in
— We Hold These Truths
8
government of the people, bv the people, and people union,
for the
people
— the
who declared their independence, who formed a more perfect who resolved that that union would be perpetuated and that would not perish from the
this nation
we are
heirs of those people, in celebrating
We
earth.
those people, and
we
are not only the
are today engaged
our heritage.
Flag-waving, however sincere; public convocations, however well designed; and political oratory, however thoughtfully delivered, will not by themselves suffice to celebrate the event of this nation’s conception and birth, it
its
two centuries of development, the
civil crisis
survived 125 years ago, and the long, prosperous, and progressive
we
future for which
As
all
hope.
individual celebrants of this occasion, the personal obligation
of everv citizen of the United States J
is
understand
to
as well as
that are our
American testament
words
that should be piously revered even
though they are not
a strict
sense this country’s holv scriptures.
possible the three
To
serve that purpose,
same ground
the
documents
Testament
that Willian
which was the
,
Institute for
I
propose
Gorman and
I
1975.*
in
some of
to cover
covered
in The
week-long seminar
basis of a
Humanistic Studies
book
in this
Though
at
in
American
the
Aspen
published in the
year of the bicentennial celebration, the volume was not widely read or given
much
attention amidst
the flag-waving, fireworks, and
all
pulpit-thumping. But understanding occurs as
ment, not
public event.
a
own mind,
It is
something done
with the solemnity of sober
While covering the same ground *
1
he participants
in the drafting
in the
of The American Testament
of
Thomas
and,
Jefferson;
Edward
1
,
private accomplishin the quiet
of one’s
reflection.
as The
American Testament
Aspen Seminar, which served
Malone, Professor Emeritus of
a
as a
,
this
preparatory exercise
included the following persons:
listorv at the University of Virginia
Dumas
and biographer
Levi, former President of the University of Chicago
the time, Attorney General of the United States;
James F. loge, then Editor of the Chicago Sun Times; Seymour Topping, then Assistant Managing Editor of The Sew York Times; Bill Moyers of WNET-TY’, New York; Douglass Cater, Senior Fellow of the Aspen Institute for lumanistic Studies; Phillips Talbot, then President of the Asia Society; Bethuel M. Webster of Webster and Sheffield, of New York City; and Elizabeth Paepcke, Trustee of the Aspen Institute for lumanistic Studies. at
I
I
1
— Two
The
Bicentennials
work goes much further
9
helping readers understand the unique-
in
ness of the United States of America, and encourages to
its
future as well as to
The dedication him
to
its
of this book to William
Gorman
It
might have been
a better
that
it
does not
fail
my
my debt
hope
that,
book had he participated
production, but with such shortcomings as
its
expresses
he would gladly add his signature to mine as
alive today,
co-author.
to look
origin and development.
as collaborator in the earlier effort as well as
were he
them
to
do
for
its
it
may
readers what he and
I
have, set
1
in
trust
out to do
to celebrate the first bicentennial. I
wish
also to
acknowledge
mv debt to two friends and associates
Theodore H. White and Father John Courtney Murray. Just before he died, Theodore White wrote a brief essay entitled “The American Idea.” It was published posthumously in 'The New York Times Magazine (July 5, 1986). a
book
entitled
insights that I
I
Many
We Hold
Murray wrote Both anticipated some of the
years ago, in i960, Father
These Truths.
have sought to elaborate
was tempted
to
adopt
Teddy
in this
White’s
book.
title for it,
but
I
finally
decided on Father Murray’s because the truths in the Declaration of Independence, not
all
of which are self-evident, provide us with
the overarching principles for understanding the ideals of the stitution.
Con-
CHAPTER
2
A More Perfect Union
The novelty
of the American Constitution does not consist in
being the
first
constitution ever proposed to a people for adoption,
nor even
in its
stitutional
regimes,
The
being the
government,
is
line
first
as radically contrasted
as old as ancient
drawn by
ever to be drafted.
The
its
idea of con-
with royal or despotic
Greece.
Plato to divide
forms of government into
all
the legitimate and the illegitimate separated governments in which
laws are supreme from governments
with
men
which the supremacy
in
rests
of power, ruling bv might rather than by right. Following
Plato, Aristotle defined a constitution as the
fundamental law that
conferred rightful authority, not just power or force, upon those
who
held the offices of government that the constitution established.
In addition, in
who
one remarkable passage, Aristotle referred
first
founded
a state
Who did We do
he have
in
that he
not
vative
and called them the greatest of benefactors.
mind?
know with
certitude, but
is
it
was thinking of Solon, who framed
and Lycurgus,
who
to those
set
one up
accomplishments are
their personal histories
a
for Sparta.
to be
found
a
reasonable conjecture
constitution for Athens,
Accounts of
their inno-
in Plutarch’s Lives,
and achievements,
where
as well as the states
they
— Solon
and
constituted, are described.
W hat
did Aristotle
mean when he
[
i
o
]
said these
men
1
A More Lycurgus said
we
Perfect
—
first
Union
1
founded
a state?
And what
did he
mean when he
should regard them as the greatest of benefactors?
Egypt antedated Athens and Sparta by centuries. The kingdom of Persia existed at roughly the same time as Athens and Sparta.
Why,
then, did Aristotle assert that states did not exist before con-
stitutions
came
The answer political
into existence? lies in Aristotle’s
government;
in
between domestic and
distinction
other words, between the government of
family and the government of
or
a city,
a
polls.
In a family, the parents rule their children absolutely, without
They do so by virtue
the children having any voice in the matter.
of their superiority as mature persons in relation to the immaturity of their offspring. Tribal rule,
w here
of the elders of the tribe,
the extension of parental rule to the
larger
group formed by the association of
village or tribal
Even of a
is
the government
larger
a
is
number of
in the
hands
families in a
community.
communities come into existence by the amalgamation
number of
The
tribes in a given locality.
communities do not do so by virtue of
kings
who
rule such
their superiority in age or
wisdom, but rather by the superiority of the power they somehow
manage
to wield over others
The
in the matter.
without giving those others any voice
despotic kind of rule that
is
exercised
over very young children and by elders over the tribe to a
still
to Aristotle, the
community thus populated and gov-
erned should not be regarded as
a state in
term because that kind of government
States
thus extended
larger population.
According
despotic
is
by parents
—
is
—
the strict sense of that
call
it
absolute, royal, or
appropriate for families and tribes but not for states.
do not come
until constitutions
into existence until
come
governments are constituted,
into existence
and communities larger
their populations than families or tribes are
in
governed constitution-
ally.
That in
is
why
Aristotle thought that Solon in Athens and
Sparta can rightly be said to have
first
of having given constitutions to those
founded
slates
Lycurgus
by virtue
two communities. And
his
i
Hold These Truths
VV e
2
reason for saving that they should be regarded as the greatest of
we
benefactors emerges as soon as
with the coming into
realize that,
existence of constitutions and constitutional governments, citizen-
comes
ship also
into existence.
who
Before that, those
lived
under the rule of the Pharaohs of
ancient Egypt or under the dominion of the great kings of Persia
were subjects, not
citizens.
When
the Pharaohs or kings governed
tyrannically as well as despotically, the people were no better than slaves
under
a
who
master
ruled to serve his
own
interests,
not
benevolently, as good parents govern their children.
The
invention of constitutions by the ancient Greeks stands out
one of the greatest advances
as
as great as the invention of the in the history
wheel or the domestication of animals
of technology. Until that invention occurred,
munities consisted of
human
fence
their
it
work
invent the
is
clear that
anvw our Founding
a
few years
however remarkable
Fathers,
constitution and, with
French revolutionists
com-
here.
in drafting the Constitution of the first
all
beings governed either as subjects or
slaves. Citizenship did not exist 1
of societies, certainly
in the history
it,
later
United States, did not
citizenship.
when
Nor
did the
they overthrew the
despotism of their Bourbon kings and created the hrst French public, thereby giving the it
word
“citizen” the revolutionary
re-
meaning
so rightly deserves.
The Constitution of the United States was not the hrst constitution ever to have been drafted by a group of
themselves called
had
as
its
explicitly
1
1
what they
Constitutional Convention, an assemblage that
a
the Constitution of the United States the hrst
formulated constitution. In
tions Aristotle described
them.
in
express purpose the putting on paper of a written consti-
Nor was
tution.*
men assembled
is
a treatise
on Greek constitu-
and discussed more than one hundred of
account of only one
— the constitution of Athens — has
survived.
Republics existed
*
in the ancient
world,
in
Rome
as well as in
Between 1776 and 17S0, Virginia, Pennsylvania, Maryland, North Carolina, and
Massachusetts held constitutional conventions.
A More
Union
Perfect
'3
Greece. In the modern world, constitutional government did not begin with in
establishment in the United States in 1787.
its
England
with the
in 1215
Carta, which
was the
step
first
long series of enactments that limited the power of English
in the
power of representative parliaments, and made
kings, increased the
those
Magna
began
It
who
voted for
members of parliament
self-governing citizens
as well as subjects of the kings.
Constitutional government began on this continent as the result
of a single political action. Isles.
There
It
developed over centuries
it
in
Parliament turned a government that was or despotic into one that finally, into
one that
way
did not begin that
in the British
which successive at first
was both royal and
acts of
completely royal
constitutional and,
republican or completely constitutional in
is
every thing except the vestigial symbols that surround the throne.
Though
the legislative enactments that, cumulatively, comprise Brit-
ish constitutional
as
having
law are
cannot be found in at
it is
a single
The is
first
is
unique about
a constitutional
form
a
more
it.
The American
federal republic in the history of the
objective or aim mentioned in
first
“to
constitution
one of the unique things about the
not the only thing that
pose distinctly different from tioned,
is
its
in 1787.
Constitution created the
world.
document formulated by
one time. That
American event But
we do not speak of England
written constitution, probably because
a
convention
written laws,
all
all
its
Preamble,
a
the other objectives thereafter
perfect union.”
pur-
men-
Union of what? Of the
thirteen sovereign states that, in the preceding five years, had been
united under the Articles of Confederation.
as
What was more
perfect about their union under the Constitution
compared with
their union
The answer
lies in
one
under the Articles of Confederation?
fact alone:
Under
ation, each of the thirteen states retained
diminished not one whit bv other twelve.
surrendered
Under
all
its
relation to other
its
the Articles of Confederits
individual sovereignty,
entering into a confederacy with the
the Constitution, each of the thirteen states
external sovereignty
American
—
that
is,
its
sovereignty in
states as well as to foreign states in the
arena of international affairs.
They
did,
however, retain their
in-
W e Hold These
H
Each remained
ternal sovereignty.
sovereign state in relation to
who
the citizens of the United States state, for
a
Truths
lived within that particular
those people were not only citizens of the United States,
they were also citizens of the state
in
which they voted
for the
governors and for the representatives to the legislative assemblies.
A
federal republic
is
thus seen to involve a plurality of sovereign-
on the one hand, the sovereignty of one national or
ties:
federal
government, and on the other hand, the sovereignty of each of the several federated states, be is
it
thirteen as
was
it
1787 or
in
it
in 1987.
Under
the Articles of Confederation, the citizens of
were
or Virginia
just that
and nothing more.
replaced the Articles, the citizens of in addition, citizens
New
When
of the
which they
Now
as citizens of
the point
where
it is
now
become ever more
one
almost universal.
has spread to
The more
perfect union
what makes the union more perfect answer the question completely re-
far as to
To why that more
correct but incomplete.
quires us to understand
perfect union
pensable condition of peace on this continent If
it
solidly perfect.
The response given so
war.
as
This change in attitude began several decades after
fifty states.
civil
as citizens of
most of us regard ourselves primarily
War, and, since the turn of the century,
with
as citizens of
and second
lived,
the Civil
has
the Constitution
first
United States and only secondarily
citizens of the
York
of the United States. In the period before the
the particular state in the United States.
New
York or Virginia became,
War, most of them regarded themselves
Civil
is
fifty as
we do
—
not understand this,
civil
is
the indis-
peace as contrasted
we do
not understand
the prime motivation that brought the representatives of the thirteen
sovereign states to Philadelphia to draft first
and foremost, unite them
engaging
in
As long
in a
a
manner
constitution that would, that
would prevent
their
war with one another.
as they retained their external sovereignty vis-a-vis
one
another, they could also enter into treaties with each other, and
group of them could form an as against the
W hen
common
treaties
alliance to serve their
common
a
interests
interests of the other states.
were violated or
interests
were infringed, one
state
A More
Union
Perfect
•5
or group of allied states could,
their conflict of interests
if
became
by military means. The Articles of Confederation could not prevent this from happening; it could not serious enough, resort to force
prevent the state of war that always exists
among
states fully sov-
ereign in their external as well as internal relations from turning into actual warfare.
What is properly
between any two sovereigns
exists states
called a state of war, as
— when,
in serious conflict
opposed
to actual warfare,
— sovereign princes or sovereign
with one another, they cannot
settle
amicably by negotiation. They have no way to
their differences
by resort to force; and when that recourse of war easily turns into actual warfare.
resolve their conflict except is
available, the state
The record of events for the period evidence of the fact that
a state
1
78 3 to
Hudson
787 provides sufficient
of war did exist between states, and
could have erupted into actual warfare. divided by the
1
New
York and
New Jersey,
River, had serious conflicts of interest with
respect to trade and other commercial matters, and similar conflicts
of interest existed between other adjoining states. If diplomacy be-
tween the feuding
was
but for them to engage
left
We
states failed to resolve the conflict, in
what recourse
bloody warfare with one another?
have additional evidence on the point under consideration.
consists in the explicit testimony to be found in the Federalist papers.
first
It
nine of the
Written by Alexander Hamilton, James Madison,
and John Jay, these papers, published in the Independent Journal, a New York periodical, attempted to persuade the citizens of New
York State
to vote for the adoption of the federal constitution.
The writers of those nine papers called but incessant warfare
of Europe.
among
What could
the separate unfederated sovereign states
prevent the same thing from happening
the separate unfederated states on the eastern seaboard of
this continent?
Nothing, they answered, nothing except the more
perfect union that stitution
would come
into existence
was adopted and the separate
by surrendering other as well as
The
among
attention to the intermittent
all
when
the federal con-
states ceased to
be unfederated
their external sovereignty in relation to
in relation to
one an-
other states abroad.
overarching purpose of the
men who assembled
in Philadel-
— We Hold These Truths
i6
That motivation was
phia was to preserve peace on this continent.
expressed in the opening words of the Constitution’s Preamble: “We,
more
the people of the United States, in order to form a
union.
.
.”
.
The underlying reason
for
forming
was, however, explicitly expressed in the 7
a
more
perfect
perfect union
nine Federalist papers:
first
peace on this continent.
The tensions that
later
developed between the northern and the
southern states with regard to the institution of slavery gave early signs of threatening that peace
war
civil
but
war of secession
1
lad the
brought on the Civil
finally
War
Oliver Cromwell’s war against King Charles
not a a
and
like
that sought to dissolve the federal union.
amendments
to the Constitution that followed the victory
of the northern states been an integral part of the Constitution the Civil
War might have been
prevented; but
that an attempt to include the provisions
it is
made bv
work
in
itself,
also almost certain
amendments
those
would have disrupted the Convention and prevented its
I,
it
from finishing
concord.
In later chapters
I
shall return to a consideration of federal
for the sake of civil peace,
which
Constitution. Equally unique
is
is
union
one of the unique aspects of our
the Civil
War
or
War
of Secession,
which the Constitution could not prevent and which attempted
to
dissolve the Union.
As Lincoln saw
it,
the
North fought the South not
to abolish
slavery, but to preserve the Union. Nevertheless, the abolition of slavery, not
post-Civil
by Lincoln’s Emancipation Proclamation but by the
War amendments, removed
the most serious conflict of
interest that could threaten the Union’s existence.
Other amend-
ments
to the
in
subsequent years removed other obstacles
preservation by strengthening the
power of
Union’s
the federal
government
the United Nations and the Articles of Confederation.
The former
vis-a-vis the rights of the federated states.
does not, as the preserve peace
latter
among
War between
does not, create
a
union perfect enough
to
the states involved.
states thus united or confederated
would be
national war, not civil war. Strictly speaking, they could not be
inter-
w ars
7
A
More
Perfect
Union
of secession (which
is
1
name
the accurate
War between
for the
the
1861-1865), because neither the Charter of the United
States in
Nations nor the Articles of Confederation created a federal union that can be dissolved
When
by the secession of some of
international tensions in the
its
members.
contemporary world reach the
breaking point and diplomatic conversations completely break down, the Charter of the United Nations will
to prevent a third
fail
world
war, just as the Articles of Confederation would have failed to prevent warfare between
New
lersev, or
between other
propinquity and with conflicting interests, had not the
states in
federal constitution replaced
This
New
York and
is
it
with
a
more
perfect union.
the lesson that a book published by Carl
Van Doren
in
1948 tried to teach. T hat was the year in which the (Tarter of the
United Nations was being drafted
in
San Francisco. Van Doren’s
book was about the Constitutional Convention 1787.
The
title
Philadelphia to
of his book attempted to relate what happened in
what was then happening
called The Great Rehearsal.
heeded.
The
in Philadelphia in
But the lesson
in
it
San Francisco.
tried to teach
It
was
went un-
rehearsal in Philadelphia did not produce the perfor-
mance he had hoped
it
would produce on the
stage in
San Francisco.
CHAPTER
3
Every Citizen, Both
Young and Old
The aim of this book
is
what every
to set forth
citizen,
both young
know about the ideas and ideals of the Constitution. By “every citizen” mean not only persons who are of an age to
ind old, should
I
them
exercise the franchise that enables political life.
on the
include also those individuals
I
future citizens
to participate actively in
who
will
— the young, who, when they come of
become our
age, will take
on
responsibilities that the high office of citizenship puts
their
shoulders.
Most Americans, citizenship
is
ernment. In
I
fear,
do not know or appreciate the
fact that
the primary political office under a constitutional gova
republic, the citizens are the ruling class.
They
the permanent and principal rulers. All other offices that are set
are
up
by the constitution are secondary.
The in
first
and indispensable qualification
any of the branches of government
is
for holding political office
to be a citizen. Officeholders,
moreover, whether elected or selected, are citizens
in office for a
period of time, but
Officeholders,
all
citizens are citizens for
life.
from the President down, are transient and instrumental unlike citizens in general l
who
are
permanent and principal
rulers, rulers.
he distinction between the permanent status of citizenship and
the transient or temporary character of vious. But
it
may
principal rulers
not be so obvious
and
call
government [
i
8
]
government
why
I
officials
officials
is
ob-
refer to citizens as the
instrumental rulers.
To
Every Citizen
understand
Both Young and Old
,
this point
of the United States
it
>9
necessary to realize that the government
is
not in Washington, not
is
in
the
White
I
not in the Capitol, which houses the Congress, nor in any or
louse, all
the
public office buildings in the District of Columbia. I
ple.
he government of the United States resides
What
We
ernment.
Washington
resides in
recognize this,
Presidential election, that
is
— we, the peo-
the administration of our gov-
at least verbally,
we
in us
when we
say, after a
have changed one administration for
That change leaves the government of the United States
another.
unchanged, because
whereas
its
its
principal rulers are also
instrumental rulers
—
its
permanent
rulers,
administrative officials
its
—
are
transient and temporary.
Administrative
officials,
from the President down, are the
instru-
ments by which we, the people, govern ourselves. They serve us our capacity
as self-governing citizens of the Republic.
in
Lincoln never
tired of saying that he conceived his role to be that of a servant of
who
the people
The word
elected him.
“servant” in this connection
does not carry any invidious connotations of inferiority or menial status. Rather,
it
signifies the
performance of an important function,
one carrying great responsibility,
upon I
to discharge
am
a responsibility officials are called
while they are serving a term
in public office.
sorry to say that most Americans think of themselves as the
subjects of government and regard the administrators in public office as their rulers, instead of thinking of
and public
officials as their
servants
themselves as the ruling class
— the instrumentalities
for car-
rying out their will. It is
of the utmost importance to persuade the citizens of the United
States, both
young and
in the political
overcome
this
life
of this country. If they can be persuaded to
misconception, and come to view themselves
right light, they will citizens carries ideals of
old, that they have misconceived their role
with
in the
understand that their high responsibility it
as
the obligation to understand the ideas and
our constitutional government.
In earlier times,
when much
smaller societies than ours were ruled
by princes, books were written governance.
to instruct princes in the art of
The education of the prince, both moral and
intellectual,
— W e Hold These Truths
20
was of supreme importance good government from
Now, when
if
one had any expectation of obtaining
their benevolently despotic rule.
when they are how can we expect good
the people have replaced the prince,
the self-governing rulers of the Republic,
government from them, or from the administrative
officials
they directly or indirectly choose to serve them, unless
supremely important that they, the
we
young and
citizens both
whom
think
it
old, be
educated for the discharge of their responsibilities. Preparation for the duties of citizenship
one of the three objec-
any sound system of public schooling
tives of
aration for earning a living for discharging everyone’s
make
is
as
much
our society. Prep-
in
another, and the third
is
moral obligation to lead
of one’s self as possible.
Our
a
is
preparation
good
life
and
present system of com-
pulsory basic schooling, kindergarten through the twelfth grade,
does not serve any of these objectives well.
T he reasons
why
this
so
is
and what must be done
to
remedy
these grave deficiencies have been set forth in a series of books that
have initiated much-needed reforms
borrow from them only what
will
is
in
our school system.* Here
germane
what must be accomplished educationally
to
I
to the explanation of
make
the future citizens
of the United States better citizens than their elders.
am
1
going to state the educational objective
in its
minimal terms.
T he least to be expected of our future citizens (as well as
of us)
is
political
that they
w
testament
— the
ill
Declaration of Independence, the Consti-
and Lincoln’s Gettysburg Address
and that their reading of these three documents w
indication of
*
I
is
,
have eventuated
(and this book will try to provide
what these additions should
be), the
some
primary concern
the understanding of the ideas and ideals of the Constitution.
(New (New
Company, Paideia Problems and Possibilities York: Macmillan Publishing Company, and l be Paideia Program (New York: Macmillan Publishing Company, 1984).
he b9
That being understood, why should any doubt remain about national security as a political ideal?
to this question
is
to
imagine
One way of reaching for an answer
a hypothetical state
Imagine that the United States existed other nations, untouchable by them as
around
it.
Or imagine
that
it
affairs.
in total isolation
from
all
there were a protective seal
if
existed in a world in
by whatever means, perpetual peace prevailed to civil peace, a state of affairs in
of
—
a
which somehow, world peace akin
which no recourse
to military force
was ever needed.
On
either of these hypotheses, providing for national security
would not be an objective of our
national government.
We
would
not have to maintain a military establishment of any kind, although
we would
still
require
civil police as
an agency of law enforcement.
we would not need a state department or a diplomatic would we have to be concerned with questions of foreign
In addition,
corps, nor policy. If
you
permit yourself to imagine either of the proposed
will
hypotheses,
how would you answer
the question:
Would
the United
States be better off with or without the need to provide for national
security as an objective of
its
government? Before answering, pause
long enough to consider whether the same question could conceivably be asked about the other objectives in the Preamble. the United States be better off
if
Would
establishing justice, ensuring do-
mestic tranquility, promoting the general welfare, and securing the blessings of liberty It is
questionable whether anyone would answer affirmatively.
However, it
were not among the objectives of its government?
as to the question
does seem to
could be that
me
about providing for national security,
quite possible, and even likely, that the response
many
advantages would be gained
if
national security
did not have to be an objective of our government, certainly not the
prime objective
it
has
become today. Even
immediately unanimous, the reasons for
it,
if
that response
when
was not
considered, might
be so persuasive as to gain adherents.
What
are those reasons?
One was
actually in the
writers of the Preamble. In the light of
all
mind of the
the historical evidence
available to them, they realized that the maintenance of a standing
1
We Hold These Truths
io
army, whether
for the
purpose of defense against aggression or
tor
the purpose of aggressive conquest, was a threat to liberty and to
“The
justice.
Rome,” James Madison
liberties of
declared, “proved
which he added
the final victim to her military triumphs”; to
Europe “have, with few exceptions, been the
the liberties of
that
price
of her militarv establishments.”
Alexander
1
lamilton argued in the same vein about the dangers
implicit in standing armies “and the correspondent
appendages of
military establishments.” In the eighth Federalist paper, he wrote: Safety from external danger
the most powerful director of national con-
is
Even the ardent love of
duct.
The
dictates.
liberty will, after a time, give
violent destruction of
life
way
to
its
and property incident to war, the
continual effort and alarm attendant on a state of continual danger, will
compel nations the most attached to institutions
To
rights.
being
which have
be more
safe,
to liberty to resort for repose
tendency to destroy their
a
thev
at
length
political
willing to run the risk of
argued against the extreme unlikelihood of
our needing “an army so large a
and
less free.
In another place he
of
become
civil
and security
great
community.” At
the United States vis-a-vis threat of invasion In addition,
as seriously to
menace the
liberties
that time, the geographical situation of
Europe reduced, but did not remove, the
by European powers.
our eighteenth-century ancestors thought thev could
put into the Constitution things that might further diminish the
dangers implicit
in a militarv
establishment for the
Not only would the new
nation, because of
from Europe, need only
a
would
also
its
common defense.
geographical distance
small standing armv, that militarv force
be under civilian control by making the President
Commander-in-Chief. Furthermore,
his use of that force
its
would be
checked by Congress. Military appropriations, like other appropriations, must originate in
the
1
louse of Representatives, the popular branch of Congress.
Such appropriations could run for no more than two years, so each new Congress was not only assured the opportunity but
that also
placed under the necessity of reviewing afresh the militarv establishment.
To Provide Still
Common
for the
Defense
I
was subject
confirmation.
And,
finally, the
power
to declare
I
The
other precautions were written into the Constitution.
President’s selection of military officers
I
to senatorial
war was vested
in
the Congress, not the President. In the debate that occurred stitution, the
concerning the
ratification
of the Con-
proponents argued that the checks provided to
safe-
guard the use of military power by the President were adequate for the protection of liberty. Before going further, actual
wording of clauses
in the
let
us look at the
Constitution to which this argument
appealed.
Section 8 of Article
One
gives Congress the
pay the debts and provide
collect taxes “to
for the
and the general welfare of the United States.”
power
gress the
war
“to declare
on land and water” and “to
money
priation of
raise
.
.
make
It
it
to lay
common
and
defense
also places in
Con-
rules concerning captures
and support armies, but no appro-
to that use shall be for a longer
years.” In addition,
maintain
.
power
power
gives Congress the
term than two
“to provide
and
navy, to make rules for the government and regulation
a
of the land and naval forces, to provide for calling forth the militia to execute the laws of the
Union, suppress insurrections, and repel
invasions.”
Section io of the same article deprives the federating states of any
power
to
engage
“to keep troops or ships of
Section
of Article
2
Chief of the
Army
of the several states States.”
war
Two
in
time of peace.”
makes the President “Commander-in-
and Navy of the United States and of the
when
also gives
It
and denies them the right
in international affairs
called into the actual service of the
militia
United
him the power, “by and with the advice and
consent of the Senate, to make treaties
.
.
.
and he
shall
nominate,
and, by and with the advice of the Senate, shall appoint ambassadors, other public ministers and consuls. ...”
Section
3
of Article Three declares that “treason against the United
States shall consist only in levying to their enemies, giving
them
aid
war
against them, or in adhering
and comfort.” Obviously, supply-
ing the nation’s enemies with military or diplomatic secrets
by the phrase “giving them
aid
and comfort.”
is
covered
1
I
We
2
The
Hold These Truths
Constitution drafted in 1787 did not fully contemplate the
situation as
it
has developed in the course of this century under the
pressures exerted by our involvement in two world wars.
Consider
how
far
we have moved from
a military
presence com-
prising a small standing army, a small navy, and state militias to the
present military establishment, huge in size and arsenal, globally stationed, biting
deep into the nation’s budget,
power and with
stantial part of the nation’s industrial
with
affiliated
its
a
sub-
scientific
and technological research, raising issues of secrecy and using agenand having immense impact not only on
cies of secret intelligence,
foreign policy but also
Do
on domestic
politics.
the precautions written into the eighteenth-centurv Consti-
tution against the dangers implicit in a military establishment now-
work
as effectively as
our Founding Fathers intended them to do?
The answer must take into account the enormous increase
power of the Presidency
vis-a-vis
by gradual
policy, in leading the nation
and
in
Congress
deploying our military might
in the
in the
sphere of foreign
steps into undeclared war,
in
order to serve our
vital
national interests without consulting Congress about them.
The
device of dual political control over the military-
gress as well as
by the President
under an increase
in the
— by Con-
— has not worked very impressively
pow er of
the presidency even as curtailed
by the recently enacted War Powers Act. The
role of the National
Security Council, the Central Intelligence Agency, and the Joint
Chiefs of Staff, yvith their large and independent bureacracies, could not have been foreseen by the framers of the Constitution.
During the debate over the
ratification of the Constitution,
James
Madison w rote:
A
standing force, therefore,
be
a
On
necessary provision.
an extensive scale
its
is
On
a
dangerous,
the smallest scale
may be
consequences
it
all
these considerations; and, whilst
from any resource which may become its
to
prudence
in
it
has
A
its
On
fatal.
object of laudable circumspection and precaution.
bine
same time
the
at
that
it
inconveniences. any- scale
it
is
an
wise nation will com-
does not rashly preclude
essential to
may
its
itself
safety, will exert
all
diminishing both the necessity and the danger of resorting
one which may be inauspicious
to
its
liberties.
To Provide
for the
Common
M3
Defense
Reading these words, we are compelled
to ask:
Does the wisdom
they express suffice to guide us in the exigencies that confront us
today? Madison and other Founding Fathers were concerned mainly
with the tension between providing for the securing the blessings of liberty.
With regard it
to
all
Our concerns
common
defense and
are wider
and deeper.
the other objectives mentioned in the Preamble,
can be said with reasonable assurance that they are harmonious
and reciprocally supportive.
I
he establishment of justice serves to
ensure domestic tranquility, to promote the general welfare, and to secure the blessings of liberty. The promotion of the general welfare enlarges the enjoyment of freedom and strengthens
civil
peace by
removing factors and conditions causative of crime. All these function together to create conditions of
individual pursuit of happiness,
that tend to facilitate the
life
which
is
the ultimate goal to be
served by a just and benevolent government.
Providing for our national security
is
distinctly different
the other objectives of government. Unless a nation can
manage
survive under the anarchic condition of international affairs,
ernment cannot serve any of the other objectives be aimed
at.
Our
national securitv
is
from
its
all
to
gov-
that are ideals to
indispensable to our individual
pursuit of happiness. Nevertheless, conflicts have arisen and will inevitably arise
guarding
between providing
liberties
and
Liberty and other
for national security
safe-
rights.
human
rights have
sacrificed in the service of that objective not always. In
and
our very recent past,
been infringed and even
— sometimes
we have
justifiably, but
witnessed serious dis-
turbances of the peace that detracted from our domestic tranquility resulting from
ment
in
mass and often violent protests against our involve-
an undeclared war conducted for reasons of national security.
The enormous
drain on our national resources represented by the
budgetary allotment for national defense greatly reduces what
mains available
for the
re-
promotion of the general welfare. The age-
old conflict between guns and butter has reached staggering pro-
portions in the political
With
all
this in
life
of the nation.
mind, are we not persuaded that we would
all
be
better off IF, on either of the two hypotheses presented earlier in this chapter
,
We Hold These Truths
n4
we
did not have to include providing for national security as one of
the objectives of our government?
That big IF requires us and
to
remember
the conditions hypothecated
to recognize that they are fantasies of the imagination
any chance of realization
until the
world
wisdom than
managed
to attain.
occur
in the
it
has so far
is
beyond
blessed with greater
That
is
not likely to
immediately foreseeable future. J
Whatever an ultimately wise solution of the problem might turn out to be, the present perilous state of world affairs places our national security high
administration. dictates that lished.
it
on the agenda of our government under any
We may must be so
wish that until
it
world
were not civil
peace
so, is
but prudence securely estab-
CHAPTER
17
To Promote
the
General Welfare
Of the
five phrases in the Preamble that state the objectives of the
government being constituted, the one of the general welfare
about
its
The
promotion
the only one that raises certain perplexities
meaning.
eighteenth-centurv interpretation of what was meant bv the
general welfare ently
is
that calls for the
become
was quite unsatisfactory
clear.
for reasons that will pres-
In the discussions that took place in the years
immediately after the Constitution was adopted, the dispute between
James Madison and Thomas Jefferson, on the one hand, and Alexander Hamilton, on the other hand, went unresolved. That discussion and dispute centered on the phrase “general welfare” in Section 8 of Article If attention
One and
had been paid to
ignored
occurrence
its
its
use in the Preamble.
in the
Preamble,
it
would
have been realized that any interpretation of the meaning of the phrase had to satisfy two requirements. In the first place, like justice, domestic tranquility, fense,
and
liberty,
what the general welfare stood
conceived as an element
government was being created good
in turn
conceived as
common
in the
a
for
de-
had to be
or public good that the
to serve directly,
means
common
and the
common
to the pursuit of happiness
— the
ultimate end to be achieved by a just and benevolent government. In the second place, as an element in the
the general welfare had to have a [
meaning i
i
5
]
common
distinct
or public good,
from the meanings
i
We Hold These Truths
16
We
attached to the other four elements.
can, therefore, dismiss at
once certain interpretations of the phrase that can be immediately judged inappropriate because they
meet these two require-
to
fail
ments. If the
with
its
general welfare of the country
regarded as being identical
is
common good, then it cannot common good distinct from all
element
in the
contrary, as identical with the public good,
Another interpretation
was thought
fare
be conceived as one
public or
at
it
includes
all
The
equally insupportable.
is
On
the others.
the
the others.
general wel-
the time to be equivalent to the general happiness
of the people, their general well-being. In one of his Federalist papers,
Madison wrote
that the general welfare stands for “the happiness of
body of the people,”
the people,” and as “the real welfare of the great
he holds
up
it
supreme objective of government.
as the
On
this
interpretation, the general welfare phrase does not belong in the
Preamble
A
moment’s digression
phrase it
at all.
“common good.”
common
good can be
shared or participated the
same
for
all
who
in
think
I
have made
double use of the
this point before
but
a
common good
ticipate in
it.
a
sense sense
by being
a
good that
is
bv many; and
(2)
bv being
a
good
is
good of the organized community
members
all
the
in
as a
whole
community can
par-
second sense, the personal happiness of each
life is
the
is
a
common good
same
for
because the essence
all.
common good in the first the public common good, and the common good in the second the personal common good. With that clear, we can now keep them distinct,
let
what has been
recapitulate
us
does not belong
identifies
Nor does
the personal
common
it
the
it
is
common
belong there
good, for
two wrong
used
the Preamble
with the public
it
redundant.
in
call
said about the
of the general welfare phrase as It
that
it.
community
morally good
To
(i)
because
In the
individual in the
two ways:
in
enjoy
In the first sense, the
of
I
to clarify a
deserves repeating here.
A
is
needed
is
if
if
in the
the
Preamble.
meaning given
good, for the
in
meaning
in that case
it
interpretations
that case
identifies
states
it
to
it
it
is
with
an objective no
To Promote
"7
the General Welfare
government can achieve.
In neither case can
be an element co-
it
common
defense,
the public
common
ordinate with justice, domestic tranquility, the
and liberty
as the four other distinct
elements
in
good Before proposing an acceptable interpretation of “general welfare,” us examine the eighteenth-century discussion of
let
that so far missed the mark.
As
I
it
to see
why
pointed out earlier, that discussion
revolved entirely around the use of the phrase in Section 8 of Article
One. Here
the part of that section which
is
is
relevant to our present
concern. .
.
The Congress
.
shall
have power to lay and collect taxes, duties, imposts,
and excises, to pay the debts and provide for the general welfare of the United States; but shall
To To
defense and
duties, imposts,
and excises
be uniform throughout the United States;
borrow monev on the credit of the United States;
commerce w
regulate
and w
To
all
common
ith foreign
nations and
among
the several States,
Indian tribes;
ith the
establish an
uniform rule of naturalization, and uniform laws on the
subject of bankruptcies throughout the United States;
To
coin
money, regulate the value
thereof,
the standard of weights and measures;
To make
.
.
and of foreign coin, and
fix
.
laws which shall be necessary and proper for carrying into
all
execution the foregoing powers, and stitution in the
Government of
all
other powers vested by this Con-
the United States, or in any department or
officer thereof.
The
first
clause in Section 8 gives Congress the
collect taxes
power
to lay
and
and acquire other revenues. These Congress can then
common
use to pay the nation’s debts, and also to provide for the
defense and general welfare of the United States. There would appear to be no limit put on the the
common
the general
amount
that
Congress can spend for
defense and for the even broader purpose of promoting
w elfare of
the nation, especially
thought to be identical w
ith either
if
the general
w elfare
the public or the personal
is
common
good This raised the issue about limited versus unlimited government,
w ith Madison
and Jefferson on one
side,
and Hamilton on the other.
i
We Hold These Truths
1
Madison,
vigorous proponent of limited government, argued that
a
the general welfare clause in the
meaning
specific
money
was able
it
had no
8
and that the correct interpretation of that
at all,
section should be that
paragraph of Section
first
it
power of Congress
limited the
to raise
on the
and then only on the other paragraphs following the
common
defense in the
specific objectives
welfare clause had anv meaning
at all,
term for the
enumerated
specific objectives
it
place,
first
enumerated
paragraph of Section
first
spend the
to
8. If
merely served in the
in the
the general
as a
covering
paragraphs that
followed. In short, the first paragraph, according to
Congress
The
welfare. to cover
separate
a
power
and
the powers granted Congress as specified in the remaining
all
8.
concluding paragraph of that section conferred on Congress
an extensive scope of power by authorizing
which
shall
be necessarv and proper
foregoing powers, and in the
act for the general
general welfare was simply an introductory heading
paragraphs of Section
The
to tax, spend,
Madison, did not give
make
“to
all
laws
for carry ing into execution the
other powers vested by this Constitution
all
Government of
it
the United States.” In Madison’s view, to
allow that concluding paragraph to confer on Congress the power to
do anything that needed
with the general welfare
to be
left
done on behalf of the general welfare
unspecified,
amounted
to giving
Con-
gress unlimited power. 1
as a
lamilton, as vigorous a proponent of a strong central
government
Madison was an advocate of strictly limited government, advanced
diametrically opposite view. In his Report on Manufactures, written
in 1791
when
The National
he was Secretary of the Treasury, he declared:
Legislature has express authority “to lav and collect taxes
provide for the cepted, the
it
appropriate
.
power
[general welfare]
because
.
is
was not its
.
general welfare.”
to raise as fit
money
is
.
.
.
as
.
.
and
T hese three qualifications ex-
plenary and indefinite.
comprehensive
.
.
.
.
T he phrase
any that could have been used,
that the constitutional authority of the
Union
to
revenues should have been restricted within narrower limits
than the “general welfare,” and because this necessarily embraces
a vast
To Promote
the General Welfare
which
variety of particulars,
1
19
are susceptible neither of specification nor of
definition. It
therefore, of necessity, left to the discretion of the National Leg-
is,
islature to
and
for
pronounce upon the objects, which concern the general welfare,
which, under that description, an appropriation of money
is
requisite
and proper.
Thomas
Jefferson
w as
he discussed
ton’s report that
by this statement in Hamilwith George Washington, who was
so disturbed it
then President, saying that the people were compelled by
whether they were
sider
living
under
a
to con-
it
limited or an unlimited
government.
Madison, writing to the Governor of Virginia, raised the same
Did not Hamilton’s commentarv on the term “general
question.
w elfare” that
radically alter the character of the
had been
powers?
strictly limited to definitely specified
Madison succeeded tures
government from one
in
preventing Hamilton’s Report on Manufac-
from being acted on bv Congress. But the issue about the general
w elfare
clause,
and purposes
The
on which they took opposite
left
issue, as
I
sides,
was
for
all
intents
unresolved. see
it,
was incorrectly
stated at the time because
of Madison’s misuse of the term “limited government” and because
Hamilton’s opponents misinterpreted his espousal of a strong central
government
as if
it
called for unlimited
government.
In the vocabulary of traditional political theory, the distinction
between limited and unlimited government distinction
ment. limited is
A
identical with the
between constitutional and absolute or despotic govern-
constitutional
government
is
bv
its
very nature always a
government because the power exercised by
limited to the authority conferred
they hold.
An
ficeholder and
The
is
its
by the Constitution on the offices
absolute monarch, ruling despotically, is
officeholders
is
not an of-
not subject to such limitations.
authority conferred on any department of government by a
constitution can involve a very extensive grant of powers and
still
not turn that government into an unlimited one. In other words, a constitutional
government remains
a limited
government,
strictly
I
We Hold These Truths
20
speaking, whether the powers with which
endowed by the much more exten-
is
it
constitution are relatively restricted in extent or
They arc never totally unrestricted or unlimited. The proponents of relatively restricted government
sive.
government governs best which
to Jefferson’s statement that “that
governs best
The
least.”
opposite statement
proponents of
a
— “that government governs
— might be construed
which governs most”
government
in the affairs, especially the
often appeal
that intervenes
economic
as the slogan of the
much more
extensively
of the country.
affairs,
Neither statement or slogan goes to the heart of the matter. question
is
how much governmental power and
satisfy all the first
action
purposes that government should serve
and directly,
is
I
is
its
citizens,
the ultimate objective of a just and benevolent government.
constitutional
in
aimed,
the public good, and then, indirectly, through
at
lence, to the question of
sible
needed to
if it is
serving the public good, the pursuit of happiness by
which
The
nor as
how much power
government possess, the answer
much
as possible, but rather as
order for that government to discharge
should
is
limited or
a
not as
little
much as may
as pos-
be necessary
obligations to the peo-
its
ple.
That government governs best that governs most justly and most benevolently, whether in doing so the powers actions
This means,
in the
exercises and the
much more
undertakes are relatively slight or
it
it
words of Abraham Lincoln,
that the
extensive.
government
should do for the people whatever the people cannot do for themselves, either individually or collectively. It is
ot the
with this understanding of the role of government people that w e can now assign
“general welfare” ble’s
— one
enumeration of
that justifies
five distinct
a definite its
meaning
conclusion
elements
in
in the lives
to the phrase
among the Pream-
the public
common
good.
What
w elfare of the nation and the participation in that general economic w elfare by all members of the population. The introduction of the word “economic” as the is
to be
promoted
is
the general economic
qualifying adjective gives the general welfare phrase the specific
meaning
it
needs for
its
inclusion, along with justice, domestic tran-
To Promote
the General
W elfare
I
2
I
common defense, and liberty, as an element in the public common good, while remaining quite distinct in meaning from the quility,
other four.
This would appear to be what Alexander Hamilton,
as Secretary
mind when he commented on the general welfare in his report to Congress. In that report he was exclusively concerned with the economic prosperity of this country, which he
of the Treasury, had
in
thought depended on
its
omy
ceasing to be mainly an agricultural econ-
and becoming largely an industrial one. However, there
indication in the report of concern that
economic prosperity by
The
all
on
his part
is
with participation
no in
the people of the country.
notion that the country’s wealth should be so distributed that
no one would go without
a slice
come
of the pie did not
to the fore
decade of the twentieth century. Until then, the
until the third
promotion of the general welfare, even when understood the general economic welfare, did not call
as
meaning
upon the government
to
take whatever steps might be necessary to see that no individuals or
were
families
out of the picture; or, in Franklin Roosevelt’s
left
memorable words,
no forgotten men.
that there should be
This twentieth-century interpretation of what
involved in pro-
is
moting the general economic welfare turns our attention from those
human
natural
rights that are purely political, like the right to po-
litical liberty,
to other natural
than
These other
political.
human
rights that are
rights are not explicitly
economic rather
mentioned
Declaration of Independence, but they are implicitly there
in the
when we
understand the Declaration to be saying that among the inalienable rights that
human
beings possess are
life,
liberty,
and whatever
else
they need for the pursuit of happiness.
Can wealth
amount of the form of those economic goods which supply them with
there be any doubt that they need a sufficient in
the comforts and conveniences of piness as a whole
life
life?
goods
is
A
Aristotle defined hap-
lived in accordance with moral virtue,
careful to point out that moral virtue
of happiness.
When is
he was
not enough for the pursuit
moderate amount of wealth and of other external
also needed.
Becoming morally virtuous
is
almost wholly within the power of
We Hold These Truths
122
each person. Each individual succeeds or
fails
according to the free
choices that individual makes. But acquiring sufficient wealth
moderate amount that
is
needed
for a decent life
—
is
— the
not wholly
The individual’s participation may, in many cases, depend on the
within the power of the individual. the general economic welfare
in
government’s doing for the people what the people cannot do for themselves, either individually or collectively.
Further treatment of the general economic welfare, as the
to
twentieth-century understanding of what
promote everyone’s participation
we come
to the discussion of
economic
in
economic
cannot
fail
in
required in order
must be postponed
rights in
rights are recognized, as they
Constitution was drafted and ratified or
we
it,
is
at least as far
Chapter
were not
at
2
1
.
until
W hen
the time the
the century that followed,
to sec the very close connection
between the estab-
lishment of justice and the promotion of the general welfare.
CHAPTER
18
To
Secure the Blessings of Liberty
The Preamble ends content to
list
ment should
with
just the right to
Declaration was
one of the human rights that
liberty as
The Preamble adds
secure.
The
a rhetorical flourish.
that
it
freedom but “the blessings of
govern-
a just
should secure not
liberty for ourselves
and our posterity.” Let us ponder for
A
blessings.
blessing
a
moment
is
a gift.
the difference between rights and
We
fortune and of the blessed as those
from God.
If liberty is a blessing,
that description
— of
endowment That mode most
just
is
the gift
free will
of freedom
is
who
have received special
either
from
God
and the power of
we do
free choice.
to secure.
not have
it
at all.
We
to confer
upon
its
citizens
either have
But having
it,
if
it
we
and to safeguard.
Without freedom of choice we would not be
political animals,
merely instinctively gregarious ones, and our being is
power of the
not irrelevant to the liberties that are within the power of a
government
ture
fits
or from our natural
certainly not within the
is
gifts
the only form of freedom that
and benevolent government
from other sources or do,
—
speak of the blessings of good
political
the basis for our natural right to political liberty.
the natural
endowment
of free will
is
also the basis for
but
by na-
Our having our right to
individual freedom of action, the right to carry into execution the
things
we
freely choose to do.
These two forms of freedom
are the liberties with
[123]
w hich
the final
We Hold These Truths
124
phrase of the Preamble
concerned. Let us consider political liberty
is
first.
As we have seen repeatedly
we must
conceive political liberty in the context of the fundamental
distinction
between constitutional and despotic government
limited versus absolute government, a
is,
government of men,
a
course of the preceding chapters,
in the
a
government by
—
that
government of laws versus
government
right versus a
by might. Political liberty comes into existence with the establishment of constitutional government and its creation of citizenship that
is,
human beings governed with
their
own consent,
as contrasted
with those subject to arbitrary power.
—
more than freedom from arbitrary power the capricious will of a despot who, whether he governs benevolently or tyrannically, imposes his own will by force upon those he rules. Freedom from arbitrary power is merely the negative aspect of poPolitical liberty
litical
is
The
liberty.
positive aspect
erned not only with one’s
own
is
self-government
— being gov-
consent but also with
a
voice in
government. Citizens are self-governing in the sense that each in
government along with
whose
voices have been heard.
by acquiescing 1
low
is
ment. Not litical
political all
liberty;
who it
The
is
liberty secured? live
will of a majority of
left
out of the picture.
First of all,
by enfranchise-
under constitutional government enjoy po-
possessed only by those upon w
of citizenship with suffrage has been conferred. chised as citizens are no
when
adversely affected minority,
majority rule, have not been
in
a participant
his or her fellow citizens, especially
fundamental decisions are determined by the all
is
more
politically free
hom
the status
Those not enfran-
than the subjects of
a
despot. In the second place, participation in
government by enfranchised
two ways: either directly when they engage in referendums or plebiscites on important public issues or in the public
citizens occurs in
discussion of them; or indirectly
,
,
when they
elect those
who
are to
represent them in legislative assemblies. Fither wav, citizens exercise a
voice in the
making of the laws under which they
determination of policies that affect their
lives.
live
and
in
the
To Secure
the Blessings of Liberty
1
25
In the republics of antiquity, the citizens participated directly in
public affairs by meeting in the marketplace or forum and, after
modern
debate, taking a vote on the issues being considered. In
republics such as ours, because of geographical extent and the size
of population, republican government had to
W ith
form of government.
become a representative
that innovation arose a vexatious question
about the role played by representatives
in relation to the will of the
electorate.
At one extreme,
it
should consult their
has been thought that elected representatives
own judgment and
own
exercise their
choice in
voting on issues before the legislative assembly. At the opposite
extreme,
has been thought that they should be guided entirely by
it
the view held bv a majority of their constituents, provided they can
discover what that
is.
Neither of the extreme views
is
satisfactory.
On
the one hand, to
give representatives total independence of the views held by their
constituents deprives the citizens affairs
who
elected
them of
a voice in the
under consideration and eliminates one aspect of their
political
freedom.
On the other hand, bv the
will of their constituents, or
of them,
is
to reduce
that of legislators. legislature of a
giving
to require representatives to be entirely
full
them
There
modern
many
matters that
in deliberation
majority
come
before the
on which the people’s representatives,
time to the problems, can be
more expert
a
to the status of emissaries rather than
are
state
by the views held by
guided
much
better informed
than the people themselves.
therefore, be ill-advised not to expect independent
It
and
would,
judgment and
freedom of choice on the part of the people’s representatives.
Somewhere
in
between the two extremes
and must be found. Finding
it
results in a
representatives to exercise their
own
a
middle ground can
compromise
judgment, while
that allows at
the
same
time giving their constituents the opportunity to inform them of the
views they hold and, ultimately, the power to remove them from office if
they depart too radically and too obstinately from the po-
sition taken
to represent.
on important
issues
by the
citizens they are
supposed
i
We Hold These Truths
26
What
has just been said about the role of elected legislators in
relation to their constituents applies as well to the role played
other elected officers of government. They, too, are
by the power
to their constituents
removing them from
as
office
Let us turn
now
citizens exercise at the polls,
who
unacceptable by the majorities
secured not only for the citizens of
republic (who have
a
franchise (and so lack political liberty) yet
what does such
In
do
freedom of
who
still
by
their
are deprived of the
have
a natural,
human
action.
liberty consist?
one pleases or wishes,
as
deemed
of freedom that should be
suffrage political liberty) but also for those
right to individual
such
elected them.
mode
to the other
all
made responsible
their policies or actions are
if
by
consists in the
It
freedom
to
to carry out in action the choices that
the individual has freely made. l
1
o do everything one wishes? T o
act in
any way one chooses?
would be complete, unlimited freedom. It would autonomy for each individual. Each would be a law unto
lardly, for that
mean
total
Freedom of complete autonomy
himself.
compatible with their living together benefits
from doing
so,
among which
for
individuals
all
in-
and deriving the
in society
is
is
the security of each in being
safeguarded from injury by others.
Cicero expressed this insight concisely
we
the foundation of the liberty
law
order that
in
insight
.
.
.
Law,
ot a free
than
more
is
we can be
fully.
1
and
it,
is
not so
much
good of those under
the law, as a useless thing,
name
So
that
are
all
servants of the
the limitation as the direction
and prescribes no farther
that law.
would of
Could they be happier
itself
vanish; and that
however
it
may be
of created beings, capable of laws, is
to
ill
of confinement which hedges us in only from bogs and
mistaken, the end of law
abolish or restrain, but to preserve and enlarge freedom. For in
For liberty
is
John Locke expressed the same
free.”
intelligent agent to his proper interest,
deserves the precipices.
We
enjoy.
he said that “law
wrote:
in its true notion,
for the general
without
le
when
where there
is
no law there
is
all
is
not to
the states
no freedom.
be free from restraint and violence from others, which
cannot be where there
is
no law.
.
.
.
To Secure
the Blessings of Liberty
27
1
Just laws that restrain individuals from injuring others and, in
doing
so, also
prevent them from infringing on the liberties of others
do not themselves diminish anyone’s freedom doing
In the first place, is
of just laws
in violation
of lawful freedom.
from doing
as
When
one pleases
as
is
not liberty.
if
It is
what one
reasons. pleases to
do
a counterfeit
those with criminal intent are restrained
they wish by fear of being apprehended and punished,
because they fear
standing of what
is
just
and unjust
That being the
free choice, they
because of their
its
justice,
but only
coercive force.
its
In contrast, morally virtuous individuals
restraints
—
license
they obey the law not because they acknowledge
their part.
two
for
with
act lawfully
case, they
have
lost
no
a
by
proper under-
on
free choice
liberty
when, by
obey laws, the authority of w hich they acknow ledge justice.
upon them
The
coercive force of the law’ imposes no
for they freely restrain themselves
from
vio-
just
laws
lating just laws.
T his
is
the second reason
why
restraints
imposed by
upon individual freedom do not abolish any genuine only the lawdess freedom that
who
is
liberties,
license rather than liberty.
but
Those
think that law and liberty are opposed, so that the fewer the
laws under which one lives the more liberties one enjoys,
fail
to
recognize the distinction between liberty and license.
Those who espouse the doctrines of philosophical anarchism go even further. entirely
They
To maximize freedom,
they would abolish government
and exempt everyone from the
restraints
are asking for the kind of complete
patible with social
imposed by laws.
autonomy
that
is
incom-
life.
As Alexander Hamilton observed, if men were angels, no government would be necessarv to restrain acts of license and to exercise J coercive force for that purpose. But
human
beings are not angels,
and so many individuals are not morally virtuous that they cannot be granted the complete autonomy the anarchist seeks.
we are still left with one problem about liberty. Once again, it is a statement by John
All this being understood,
the relation of law to
Locke that throws
light
on the subject.
1
We Hold These Truths
28
In addition to the
we
just laws,
do
we
as
we
freedom
when we
enjov
voluntarily obey
should also have, aecording to Locke, the freedom to
please in
all
matters concerning which enacted laws neither
prescribe nor prohibit action on our part.
How that
large should the sphere of such
should be circumscribed only bv laws that are
it
lations of
our conduct
others or the public
On
essay
can be
justified
just
is
— regu-
for the sole purpose of preventing us from injuring
common
good.
Only laws
freedom of
justly limit individual in his
freedom be? T he answer
Liberty.
that serve this
purpose
John Stuart Mill declared Restraints imposed upon individual freedom action,
on no other ground than the prevention of injury
to
others or to the public good. In
contemporary
life
the most striking examples of mistakes and
confusions about the point under consideration are to be found the sphere of sexual conduct. uals
from committing sexual
because they are sins
One
or civil law
that attempt to restrain individ-
acts that are
in violation
violation of the moral law
man-made
Laws
fail
from
in
deemed reprehensive
either
of the divine law or acts of vice in
to distinguish the proper sphere of
that of divine
and moral law.
of the most eminent theologians, T homas Aquinas, living in
a society in
which Christianity was the established
great pains to
emphasize the importance of
religion, took
restricting
man-made
law to the regulation of conduct on the part of individuals that affects the good of others or of society as a whole. In his
T
reatise
on
Law
in the
questions about positive law lie asked,
first,
whether
— the
civil
,
governments should make laws
prohibit every vicious or sinful act.
should make laws to prescribe
Summa I'heologica he asked two laws made by civil governments,
all
1
le
asked, second,
To
sponded with emphatic negatives. Civil law its
both questions, he ,
good of others and the
re-
the law of the state,
government, should extend, he
actions that affect the
w hether they
the actions that can be expected
from virtuous and righteous individuals. enforced by
to
said,
only to those
gtx>d of the
community.
According to the principle thus enunciated, there can be no crimes where there are no victims where no individual is injured, nor
—
society adversely allected. Sexual acts performed in private
by con-
To Secure
the Blessings of Liberty
129
senting adults should not, therefore, he prohibited as criminal actions regardless of
how
sinful or unvirtuous they
may
Laws
be.
that at-
tempt to prohibit such actions should be rejected as unjust because they are in violation of the
do not involve injury
that I
o think otherwise
A
which they
in all
matters
them-
religious minority that arrogates to
may
immoral conduct
that such sinful or
freedom
to others or to the public good.
moral majority
selves the role of a
right to
to confuse crimes with sins or with acts that
is
are simply unvirtuous.
in
human
be offended by the knowledge occurring
is
the
in
community
But their being outraged by such knowledge
live.
does not constitute the kind of injury that the criminal law should
attempt to prevent.
The
opposite view leads to the most undesirable results.
made
that laws should be
to prevent
any group
in the
from being outraged by actions on the part of others
To
think
population
that they
hnd
morally reprehensible, or even aesthetically distasteful, would result in society’s
mate
being overburdened with
legislation.
It
would
a
mass of completely
illegiti-
also result in illegitimate restrictions of
individual freedom.
One final comment Court upholding
a
is
called for
by
a
many wrong
Supreme
Georgia law making sodomy between consenting
adults a crime. This fundamentally
of
recent decision of the
decisions
wrong decision
by the Court when
its
is
one example
majority adopts
a
policy of strict interpretation of the Constitution.*
That policy constrains the Court and to ignore
its spirit;
to abide
by the
letter
of the law
worse, to try to abide by the intention of
the laws’ formulators; and, worst, to pay attention only to the words that are to be
found
in the Constitution’s
words of the Preamble, itself
but mere rhetoric.
as
if
that
body and
to ignore the
were no part of the Constitution
The words
of the Preamble, echoing
in part
the language of the Declaration, breathe spirit into the rest of the
Constitution.
*The Georgia sodomy Fourteenth Amendment,
would which it
law'
also appear to be in violation of Section
in
is
laid
down
that
“No
State shall
i
of the
make or enforce
any law which abridges the privileges and immunities of citizens of the United States.”
1
We Hold These Truths
3°
To
ignore the Preamble
is
to disregard the ideals of the Consti-
tution and the fundamental ideas and principles that
the Declaration. In the Georgia case,
it
it
derives from
results in the majority’s
neglect of the right to individual liberty in
all
matters concerning
which the law should neither prescribe nor prohibit because the exercise of freedom in these matters causes injury to no one.
T he dissenting minority opinion appealed to this principle.
It
in
the Georgia case rightfully
had warrant
for that appeal in a correct
understanding of one of the Constitution’s ideals
as stated in the
Preamble. Strict justice,
it
has been said, often results in inequity.
A
strict
interpretation of the Constitution as currently practiced often results in the
acceptance of unjust laws.
CHAPTER
The
19
Defects of the
Eighteenth-Century Constitution
Did the Constitution as drafted extended by the
ten
first
in
1787, ratified in 1788, and
amendments before
the close of the eigh-
teenth century fully realize the ideals set forth in give full effect to the ideas
Independence?
To
If not,
answer the
first
not nearly far enough
achievement that fection in
is
we
how
its
Preamble and
inherited from the Declaration of
it
far did
it
go
in that direction?
question negatively and the second by saying is
not to detract from the magnificence of the
see
fit
to celebrate in the current Jyears. Per-
not achieved on earth.
It
can never be closely approximated
one attempt.
What was achieved in the eighteenth century by American statesmen a group of brilliant men unequalcd since in this country’s
—
history
— must be measured against the conditions and circumstances
of the time in which they were living. Judged in that way,
we
can
have nothing but high praise for what they then pnxluced and handed
down
to succeeding generations as a basis for carrying their
work
forward.
way in which we can soberly assess how to give life to their ideas and how to realize the ideals they had in mind. To accomplish that we must recognize the defects in the Constitution they delivered to us who are alive many generations later. Of the six objectives stated in the Preamble, the first to form a There
is
only one
—
more
perfect union
— was the one most completely 1
*
3
']
realized
by the
Hold These Truths
VV e
U2
adoption of the federal Constitution, which transformed a plurality of states into one:
E
Pluribus
Unum. Let
which the Union was firm and
War and
solid before the Civil
Abraham
Let us remember that
it.
us consider the degree to after
Lincoln’s controlling motive
we
throughout those dire years was to preserve the Union. Thus cannot
fail
even that
to see that
consummated
first
objective
was
far
from being
eighteenth century.
in the
For largely the same reasons, domestic tranquility was more threatened in the early years of the Republic than in later periods.
The
seeds of strife between the states, and even within the states,
which undermined
some
partly
— by
peace were removed
civil
— some
completely,
the resolution of the conflict between the states
and bv the amendments that followed thereupon. In addition, as
we
law enforcement
noted
in a
republic
—
a civil police force,
militarv force of a despotic regime
innovation.
It is
only
in the
must be employed
When we come
to
— was
a
do
its
not the para-
mid-nineteenth-century
twentieth century that
nized the necessity for perfecting that
instrument for
earlier, the indispensable
we have
recog-
operations as well as the means
so.
to the establishment of justice,
involves the equal treatment of equals,
we
which certainly
are confronted
w
ith
one
of the two great defects of the eighteenth-century Constitution. Liberty, not equality, ers.
They may
was foremost
in the
not have forgotten that the one clearly self-evident
truth proclaimed in the Declaration
beings by virtue of their of that truth did not
rampant
We
at
common
w as
the equality of
all
human
humanity, but the self-evidence
overcome the strong prejudices against equality
the time.
encounter the other of the two great defects
to the Preamble’s in
minds of our Founding Fath-
aim
to
promote the general welfare.
when we come As we observed
the chapter devoted to that subject, the general welfare, as a
component in the public common good, must be conceived the economic welfare of the country as a whole and of its indi-
distinct as
viduals.
When the statesmen of the eighteenth century thought about
inalienable
human
rights, they
had only
Not only those thinkers and
political rights in
mind.
leaders but also their nineteenth-
The Defects of the Eighteenth-Century Constitution
•
33
century descendants were blind to the existence of economic rights in
human
the inventory of inalienable
economic goods were needed by
much
piness, quite as
were
as
did not see that
to facilitate the pursuit of hap-
all
civil
They
rights.
The
peace and political liberty.
recognition of economic rights as natural
human
rights did not occur
until the twentieth century,
and that recognition was not even par-
implemented by
midpoint of
tially
We
shall deal
two
these
w
ith
to realize
Of
it
ideal of
it
That
more
was
fact,
more
so far found for
difficult
in the
w here we
will
to be
fully.
two remain
to be considered.
eighteenth century.
It is
also
It is
common
defense
much more
costly.
today to provide for the
together with the investment of our resources to promote
economic welfare, has resulted
Does
faces.
we have
this century.
democracy and what remains
the Preamble’s objectives,
certainly
than
the remedies that
great defects in the next three chapters,
examine the emergent
done
legislation until the
this call for a
in the financial crisis the
remedy
that
country now'
would involve changes
in
our
Constitution? Last, but not least,
blessings
is
the Preamble’s dedication to securing the
— and the inalienable
right
—
to liberty. Inalienable rights
can be secured only by safeguarding them through the enforcement of civil rights, either through the provisions of the Constitution
itself
or through legislative enactments.
Certain provisions in the Constitution, taken together with the first
ten
amendments
— the
Bill
of Rights
— took some of the steps
necessary to protect individual freedom. Suspension of the writ of
habeas corpus was forbidden except
in cases
of rebellion or invasion;
bills
of attainder and ex post facto laws w ere prohibited;
jury
was required; unreasonable searches and
lowed
So
seizures
trial
were not
by al-
.
far so
good, but not nearly
far
enough
to protect individual
freedom from unjustifiable governmental interference or constraint.
Even more inadequate was the
constitutional recognition in the eigh-
teenth century of the inalienable right of all liberty
—
all
w ith
human
beings to political
the sole exception of those justly excluded from
suffrage because of infancy, insanity, or felony.
We began to remedy
W e Hold
•34
inadequacy with the post-Civil
this
continued
These Truths
War amendments, and we
same direction with amendments adopted
in the
we
twentieth century, but
still
have
in the
have not gone the whole distance
required to complete the job.
Of all
the great ideas, and especially ones that project ideals to be
realized, those that
change
fall in
the sphere of politics are most subject to
in relation to differing
of time.*
To
circumstances
in successive
be deeplv sensitive to the limitations of time and
cir-
cumstance under which our Founding Fathers worked, one need only think of the subsequent developments in this country’s of the
new
and the new problems
institutions
life,
and
that they did not
contemplate and could not even imagine. In the eighteenth century, there
were few private corporations
chartered by government; there were no labor unions having a status politically recognized; there
was no public school system; there w as
no energv shortage; there was no threat
to the healthfulness of the
environment; there was no need for the Federal Reserve System. In the eighteenth century, travel
by any means other than by horse or
on water;
to
on paper;
to
to farms; to
foot
to
imagine
on land or bv boat
imagine communication by any means other than by
direct oral discourse or
by the conveyance of handw riting or
print
imagine the spread of industrialization from factories
imagine the economic interdependence of
of the world; to imagine to
no one would have been able
all
the nations
national debt of staggering proportions;
a
imagine world wars and one that might result
caust; to imagine the role that science
and
its
in a
nuclear holo-
technological appli-
cations might play in the operations of government, not only in
providing for the
common
defense but also
in
promoting the general
economic welfare.
*1
have written
(New
a
hook about such
York: Macmillan Publishing
ideas,
Company,
are better understood today than in the past in the
years to come.
which
1
entitled
A
Vision of the Future
1984) because the ideas treated therein
and can expect
a still
better understanding
PART FOUR
The Emergent
Ideal
of Democracy
CHAPTER
From
20
Liberty to
Equality
There
is
one political ideal
That
the Constitution’s Preamble. first
step toward
that does not is
make
appearance
its
in
the ideal of democracy, the
which was taken by the amendments adopted im-
mediately after the Civil War.
But that w as not the moment
in history
democracy occurred. That happened
in
when
the
England
first
step tow ard
in 1647,
almost 150
years before the Constitution was drafted. Before going into that event, as
let
me comment on
the
words “republic” and “democracy”
used by our Founding Fathers, for that has
bearing on their
a
devotion to liberty and their indifference to or denial of equality.
a
James Madison was right in insisting on the distinction between republic and a democracy and also in maintaining that the Con-
stitution’s
and not
a
being submitted for adoption by the states
set
democracy. But he was right on both points
up
a republic
for the
wrong
reasons.
The governments
of the Greek city-states in antiquity were cer-
tainly republics but never democracies, even in
Athens
in the fifth
were admitted
to citizenship.
30,000 individuals artisans
century B.C.,
in a
when,
men with
Even then
that
as
very
under Pericles little
amounted
population of 120,000. Slaves,
property
to only
about
women, and
were disfranchised.
Although Pericles praised Athens
[137]
as a
government by the many,
i
3
it
We Hold These Truths
8
was
in fact
government bv the
compared with the ancient
men
stricted to
The
relatively few. In spite of that tact,
oligarchies in
which citizenship was
re-
of vast wealth, that few was larger than usual.
mistake that Madison
made was
to think that the
w ere democracies because the few who were marketplace or forum to debate and decide the
Greek
city-
met
states
citizens
the
political issues
of the day. ticipation
He
by
incorrectly thought
democracy involved
Greek city-states
have pointed to
in antiquity as
New
result,
well as referring to
examples of democracy, he might
own
in his
a representative
Madison’s mistake, shared bv
a
century.
system of govern-
according to Madison’s view, was
form of government rather than
a
republican
democracy.
many
of his associates in the
Convention, was egregious.
stitutional
As
England town meetings
Since the Constitution created
ment, the
direct par-
citizens in public affairs, as contrasted with indirect
participation through elected representatives.
the
in
He
Con-
failed to recognize that
every society under constitutional government, without anv admixture of monarchical institutions, city-states,
which had introduced
world, were the very
a
democracy
because
republic.
a
1
lence the Greek
constitutional republics into the
He
also
that of Pericles,
was
republics in recorded historv.
first
failed to recognize that
is
none of them, not even the
franchise
was
so
severely
limited.
Direct participation versus participation through elected representatives has
no bearing
at all
on the distinction betw een republics and
democracies. All constitutional democracies are republics, but not are constitutional democracies.
A
republic exists
all
republics
when some mem-
bers of the population enjoy political liberty by virtue of their being citizens with suffrage,
even
if
these citizens
of the population as w as the case as in eighteenth-
No
a
small majority
the ancient city-states as
w ell
and nineteenth-century America.
among them, becomes a democracy until uniestablished, until all human beings, except the very
republic, ours
versal suffrage
few
in all
make up
who
is
are justly disfranchised for mental incompetence or felon-
ious action, are accorded the equal political status of citizenship.
From
Liberty to Equality
Only then do
equally enjoy political liberty and other forms of
all
freedom that are
>39
by natural
theirs
This nation began
become
to
right.
democracy only
a
in the
twentieth
century, with the institution of truly universal suffrage and with the equal possession of political liberty by
all
members
of the population
(with the few exceptions noted above). All the steps needed to bring that ideal to
have not yet been taken.
fullest realization
its
In the political philosophy of the West, the initial espousal of the
democratic ideal and the
ment
first
as the ideal polity, the
affirmation of constitutional govern-
only perfectly
form of government,
just
occurred as recently as 1863, with the publication of John Stuart Mill’s great essay
on
Representative Government
the
,
of which,
title
unfortunately, reverses Madison’s error and identifies democracy
with representative government.*
The in all
definition of the democratic ideal stated above
one respect. Equality with respect
to suffrage
is
inadequate
— the enjoyment by
of the equal status of citizenship and the equal possession of
political liberty
racy
it
—
is
must extend the protection of
inalienable
the political to the economic sphere. This
chapter on the general welfare.
defended
The
in the
is
a
It
will
human
was intimated
a
democ-
rights in
from
an earlier
be more fully discussed and
chapter to follow.
transition
one that
become
not enough. For a republic to
from
a
merely republican form of government to
democratic republic
a transition
is
from an exclusive
concern with liberty to an additional concern with equality, or to an enlargement of the concern for liberty to
enjoyment of liberty by
all.
concern for the equal
a
Indispensable to that transition
equality on a par with liberty
among
political ideals,
putting
and regarding
both not only as secured but also as regulated by justice
human rights. The reason why liberty
is
in its
concern
with
‘For an explanation of in political
why
it
rather than equality
Chapter
7
of
the earlier of the
took so long for the ideal of democracy to emerge
theory, and for the reason
fully realized, see
w as
my
why
book
/I
it
will take
still
longer for that ideal to he
Vision of the Future.
W e Hold
140
two
These Truths
ideals can be easily explained. Constitutional
government, by
replacing despotic rule, brought political liberty into existence.
did so in ancient Greece.
when
It
did so again in the eighteenth century
It
the American colonies threw off the despotic imperial rule of
Great Britain and,
after
winning
independence, adopted
their
a re-
publican form of government.
Hence our Founding
Fathers,
who framed
a constitution
tablished a republic on this continent, were, hrst and
last,
and
es-
proponents
of libertv, with either no thought about an equality of conditions for
all
worse, with obstinate prejudices against
or,
How,
then, shall
American
interpret Alexis de Tocqueville’s vision of
one committed
society as
early as 1835,
The
we
when
his
it.
to
an equalitv of conditions as
book Democracy
in
America was published?
stemmed primarily from
brilliance of that vision
its
conception
of the democratic ideal in terms of equality, not merely equality before the law or equalitv of opportunitv, but an equality of conditions,
Did
economic and
that vision also
realities
of American
American scene as vision of
w hat
it
social as well as political.
stem from de Tocqueville’s observation of the the 1830s?
life in
the United States
is
possible.
America and writing about
rather a prophetic
would some day become because
its
origin as the
first
nation that had
it
Although de Tocqueville was in the
visiting
wake of Jacksonian populism,
cannot be accepted as true descriptions of the actual
state of affairs in this
to
it
to outlive?
Only one answer his statements
description of the
a
it
then actually existed, or was
of tendencies deeply implicit in
no feudal past
Was
country
at that
have any hold on the truth,
his
time. For this vision of
America
extraordinary book must be read
as a prediction of a future state of affairs rather than as a description
of institutions that then existed. It
should be added that the truth of
this prediction rested
on de
Focqueville’s extraordinarily perceptive observations about tendencies and predilections in
American
life.
l)e
them causes that would establishment of democracy in this country. sagacity to see in
l
ocqueville had the
inevitably lead to the
From
Liberty to Equality
I
4
!
Some years later Lincoln had something of the same prophetic vision when he spoke of the Declaration of Independence as a pledge to the future rather than as a statement of political ideals capable of
being realized
time the Declaration was written.
at the
and perhaps the only, self-evident truth
The
in the Declaration’s
first,
second
human beings by virtue of their common human nature is not only the
paragraph asserts the equality of
common
all
humanity. If their basis oi their being bv nature equal but also of their inalienable
natural rights, then
inexorably follows that
it
equally possess
all
those rights. All have an equal right to
liberty,
life,
and whatever
else
anyone
naturally needs for success in the pursuit of happiness. Should in-
dividuals be unable to secure for themselves whatever
then a just government
called
is
upon
to secure for
is
thus needed,
them
their right
to these goods. I
said at the beginning of this chapter that the first strivings
the idea of
democracy occurred
Cromwell’s army when
in
England
group of
a
in 1647. It
his officers,
who
toward
occurred
called
them-
selves the Levellers, appealed for an extension of the suffrage
propertied
the
from
unpropertied working class of the
the
to
class
in
country.
Supporting that appeal, Major Rainborough and Sir John Wild-
man
declared that no
man
is
politically free unless
with his consent and also with
Cromwell succeeded
that
the Levellers
demanded
in
a voice in
that,
claimed
The and
all
enjoy the
men were
with the restoration of parliamentary
later
as well as the
landed rich should be
political liberty to
entitled
by natural
which the Levellers
right.
when,
in 1863,
their revolutionary views
political life until
more than two centuries second Reform Bill that
Parliament passed the
extended the suffrage to the laboring masses of trialized
England.
Lord Cromwell
Nor did
Colonel Ireton.
have any effect on British
governed
government. In the event
Levellers did not prevail in their debate with
his son-in-law,
is
deposing the despotic Stuart monarch,
government, the working poor in a position to
he
a
recently indus-
We Hold These Truths
'4 2
Only
a
few years
later, after
the United States took the Thirteenth
steps in the
its first
(1865),
the end of the
American
War,
Civil
same direction by adopting
Fourteenth (1868), and Fifteenth (1870)
Amendments.
The Thirteenth Amendment .
.
provided that
Neither slavery nor involuntary servitude, except
.
crime whereof the party
shall
as a
have been duly convicted,
punishment
shall exist
for
within
the United States, or any place subject to their jurisdiction.
The .
.
Fourteenth
Amendment
provided that
All persons born or naturalized in the United States,
.
and subject to
the jurisdiction thereof, are citizens of the United States and of the State
wherein they
reside.
No
State shall
make or enforce anv law which
shall
abridge the privileges or immunities of citizens of the United States; nor shall
anv State deprive any person of
life,
libertv, or property,
process of law; nor deny to anv person within
its
without due
jurisdiction the equal
protection of the laws.
The .
.
.
Amendment
Fifteenth
The
right of citizens of the
provided that United States to vote
shall not
be denied
or abridged by the United States or by anv State on account of race, color, or previous condition of servitude. 1
laving abolished chattel slavery and conferred citizenship
upon
the blacks in the nineteenth century, the country waited until the
second decade of the twentieth century to extend the franchise to the female half of the population. This occurred
of the Nineteenth
Amendment
in 1920,
The right of citizens of the United States
w
ith the
w hich provided
to vote shall not
adoption
that
be denied or
abridged by the United States or by anv State on account of sex.
The country
waited
still
longer for the removal of
qualification for the exercise of suffrage,
voting almost
southern of the
all
states.
the blacks and
This obstacle
many
which had
a
property
disqualified
from
of the poor whites in the
was removed
in
1964
w ith the adoption
Twenty-Fourth Amendment, w hich provided
that
From .
.
.
The
Liberty to Equality
'43
right of citizens of the
United States to vote
any primary or
in
other election for President or Vice-President, for electors for President or
Vice-President, or for Senator or Representative in Congress, shall not be
denied or abridged bv the United States or any State bv reason of failure to
pav any
The
poll tax or other tax.
equality of conditions achieved by these successive
ments was purely zenship by
all
Enjoyment of the equal
political.
human
amend-
status of citi-
beings regardless of their gender, racial color,
or possession of wealth established the almost-universal suffrage that
honor and secure the inalienable human
justice requires in order to
right to political liberty.
however,
This,
cratic ideal.
Economic
human
our Constitution
book.
ters of this
It
is
makes
by de Tocqueville mind in w riting Democracy for
whom
the
to
its first
perfectly just.
conclude
in
which
this chapter, in
appearance, by quoting a
letter
him what he had
safety to freedom,
w
word “democracy”
ith
I
synonymous with disturbance,
is
have attempted to show that democracy
reverence for religion; that,
fosters less than another
has
w ill of God a greater
its
some of the
if
finer possibilities of the
to bestow a lesser grade of happiness it
to a small
number and
upon
all
to bring a
w
ith
democratic govern-
great and noble aspects; and that perhaps, after
share of
in
America.
reconciled with respect for property, with deference for rights,
it
at-
themselves. Therefore,
to a friend, telling
anarchv, spoliation, and murder,
spirit,
lives for
become
fitting to
written
ment
in the natural
of these matters belongs to the remaining chap-
seems
the democratic ideal
may be
too,
beings in their pursuit of happiness and their
The consideration
To those
They,
must be honored and secured by constitutional amend-
they, too, if
of the demo-
as well as political rights exist.
tempts to achieve good and decent
ments
full realization
and have exactly the same basis
are natural rights
needs of
not enough for a
is
men
human
all, it is
the
than to grant
few to the verge of
perfection.
This passage should be accompanied by an equally remarkable passage from the closing pages of his book.
i
We Hold These Truths
44
We mav
naturally believe that
but the greater well-being of
it
all
Creator and Preserver of men. to His eye,
equality its
is
advancement; what
perhaps
greatness and
less elevated,
its
beauty.
I
is
not the singular prosperity of the few,
that
What
is
appears to
afflicts
but
it
would
most pleasing
me
is
is
more
me
to
in the sight
be man’s decline
acceptable to just:
and
of the
its
Him.
A
is,
state of
justice constitutes
strive, then, to raise
myself to
this
point of the divine contemplation and thence to view and to judge the
concerns of men.
CHAPTER
From to
The
2
1
Political
Economic Rights
the Levellers
issue raised by
which they took an affirmative
Cromwell’s army and on
in
position, with
Lord Cromwell and
Colonel Ireton on the other side, can be stated succinctly as follows:
Should those
who
are economically unequal be
made
politically
equal? Stated in eighteenth-century terms,
it
came
to this:
Should those
who
are propertyless, laboring wage-earners be given suffrage and
thus
made
equal in political status with
men
of property,
whose
incomes derive from their landed estates? In the last quarter of the nineteenth century
and the
first
quarter
of the twentieth, a remarkably different issue confronted England
and the United
Bv
States.
this time, in the
United States, the fran-
chise had been effectively extended to the wage-earning laborers, at least to
states
white males,
if
not to emancipated blacks in the southern
where they were debarred from voting by
The George
issues then raised in the
by economic reformers, such
as
Should those
Henry
Tawney in England, can who are now politically equal
United States and R. H.
stated as follows: citizens
poll taxes.
be as
with suffrage also be made economically equal through the
recognition and securing of their economic rights?
On
this issue, the
socialists,
economic reformers, often charged with being
were opposed by conservatives such
Sumner who thought
as
William
Graham
that attempts to establish an equality of eco-
1
i
45
]
We Hold These Truths
146
nomic conditions and
acknowledge the existence of natural rights
economic sphere would infringe on or
in the
dom,
to
freedom of enterprise.
especially
In the
background
lay the dispute
between Hamilton and Madison
about the general welfare claus^, both Constitution
curtail individual free-
itself.
That dispute had
end of the eighteenth century, but resolved in favor of Hamilton in the
in the
still it
in the
not been resolved bv the
came
first
Preamble and
and was
to the fore
half of the twentieth cen-
might be more accurate to say that the twentieth-century revolution, in its concern with the general economic welfare, went tury.
It
further in the direction of economic equality and economic rights
than anything that Hamilton would have dreamed
of, or
could have
possibly accepted. In a speech delivered in 1910,
No man
can be
a
good
work
is
management of keep countless
done he the
wage more than labor short enough so
sufficient
and hours of
that after
will
have time and energy to bear
community,
men from
said:
citizen unless he has a
to cover the bare cost of living his day’s
Theodore Roosevelt
his share in the
We
to help in carrying the general load.
being good citizens by the conditions of
life
with
which we surround them. In that is
same speech, he
also said that “the object of the
the welfare of the people,” and that he
w as
of government to protect property as well as In 1912, Roosevelt ran for election I
le lost,
in his
the
“shaping the ends
human w elfare.”
on the Progressive party
ticket.
but most of the political and economic reforms advanced
platform have since been enacted into law by one or both of
two major
On
for
government
political parties.
the economic front, that platform contained planks calling for
minimum wage standards for working night work for women and the establishfor women and young persons; one day’s
the prohibition of child labor;
women;
the prohibition of
ment of an eight-hour-day rest in
seven for
all
wage-earners; the eight-hour day
in
continuous
twenty-four-hour industries; publicity as to wages, hours, and conditions of labor; standards of compensation for death
by
accident and injury and trade diseases; the protection of against the hazards of sickness, irregular
industrial
home
life
employment, and old age
From
Political to
Economic Rights
through the adoption of
a
'47
system of
and the de-
social insurance;
velopment of the creative labor power of America by
lifting the last
from American youth and by establishing contin-
load of illiteracy
uation schools for industrial education under public control. This part of the platform
ended with the statement
men and women,
organization of workers,
All that in the year 1912!
Harry Truman
—
means of protecting
took the next forty years
The impact
mind
in
Wilson, Franklin Roosevelt, and
move toward having more and more
Roosevelt had in
— mainly
enactments and Supreme Court de-
for legislative
participate in the general
l
It
Woodrow
the administrations of
in the
favored “the
it
and promoting their progress.”
their interests
cisions to
as a
that
of the population
economic welfare, the goal that Theodore
in 1912.
of the Great Depression caused the Supreme Court
down
years 1936-1937 to hand
lamilton’s side in his dispute with
a series
of decisions that took
Madison about the power of
Congress “to promote the general welfare.” Various entitlements
in
the Social Security Act of 1935 were upheld by these decisions:
unemployment compensation, This movement toward the
old age pensions, and the socialization of the
other words, toward the establishment of what has “welfare state” because of
a
people, reached
of
all its
to
Congress
economy come to be
or, in
called
concern with the economic welfare
climax
its
in 1944. In that
its
like.
in
Franklin Roosevelt’s message
speech, the President declared that “true
individual freedom cannot exist without economic security and in-
dependence. stuff of
.
.
.
People
who
which dictatorships
are
are
hungry and out of
Bill
job are the
made. ... In our day these eco-
nomic truths have become accepted cepted, so to speak, a second
a
We
as self-evident.
of Rights, under which
of security and prosperity can be established for
a
have ac-
new
basis
’*
all.
was enacted toward the end of the eighteenth century through the adoption of the first ten amendments. We had to wait until the "The
first Bill
of Rights,
all
political,
mid-twentieth century for the proposal of
economic
second, an economic,
as well as political rights are inalienable natural
have always existed.
What happened
They
did not
come
human
hill
of rights.
rights, they
If
must
into existence later than political rights.
later, under the influence of greatly changed circumstances and
greatly advanced technology, rights,
a
was not the coming
but the recognition that such rights existed.
into existence of these
economic
W e Hold These Truths
148
Roosevelt then went on to enumerate the economic rights that he
asked Congress to hnd ways of implementing.
The
and remunerative job
right to a useful
They
include:
in the industries or
shops or farms or mines of the nation;
The
enough
right to earn
to provide adequate food
and clothing
and recreation; I
he right of every farmer to
which
him and
will give
The
raise
and
his family a
sell his
products
at a
return
decent living;
right of every businessman, large
and small,
to trade in an
atmosphere of freedom from unfair competition and domination bv monopolies
The The
home
at
or abroad;
right of every family to a decent
home;
adequate medical care and the opportunity’ to achieve
right to
and enjoy good health;
The
right to adequate protection
age, sickness, accident,
The
right to a
Economic
human
and unemployment;
rights, like political rights, are rights to
in the
fears of old
good education.
being needs
succeed
from the economic
in
order to lead
a
decent
goods that every
human
and
life
to
pursuit of happiness. In every case they must be
goods that are not within the power of individuals to achieve themselves, as their
own
moral virtue
is.
nevolent government must do whatever
Therefore, it
a just
for
and be-
can to help individuals
obtain these goods in order to facilitate their pursuit of happiness. 1
lowever, our general understanding of economic goods
is
not as
clear as our well-established understanding of political goods.
have long
known
home and
abroad, and
tion of individual
that our political
goods consist
in political liberty,
in
We
peace, both at
together with the protec-
freedom by the prevention of violence, criminal
aggression, coercion, and intimidation.
These political goods are ble of the Constitution
rights
stated
right to a right
life
in
the
among
the objectives stated in the Pream-
and are also among the inalienable human
Declaration.
— involves
more than
But one of those rights security of
not merely to subsist, but to live well in
life
— the
and limb.
human
terms.
It
is
The
From
Economic Rights
Political to
right to a decent
human
requires an adequate livelihood. This
life
economic
leads us at once to
'49
rights
—
rights to
economic goods
in-
dispensable to the pursuit of happiness.
What ing of
are these
economic goods? The error
economic goods
to be avoided
money. Money
solely in terms of
is
think-
is artificial,
not real wealth, which consists in the possession of the commodities
we consume, the services we may derive income. Money is in the
goods
sense that in
which
use,
and the property from which
the economic equivalent of real wealth
purchasing power enables us to buy the economic
its
real
wealth consists.
These economic goods include
a
decent supply of the means of
subsistence; living and working conditions conducive to health; ical care;
we
med-
opportunities for access to the pleasures of sense, the pleas-
ures of play, and aesthetic pleasures; opportunities for access to the
goods of the mind through educational adult in
life;
and enough
youth and
free time
facilities in
youth and
from subsistence-work or
in adult life, to take full
toil,
in
both
advantage of these opportun-
ities.* I
have said that the economic goods
therefore, have a right are needed for
we need and to which we, a decent human life as an
By using the word “decent,” more than the quantity of real
ingredient in our pursuit of happiness. I
stress the point that
we
require
wealth necessary for bare subsistence. This brings us to the consideration of
what
is
meant by economic equality.
In the preceding chapter,
what was meant by the
same
political equality. It
political status
thereby have
all
we had no
—
difficulty in is
understanding
possessed by
all
that of citizenship with suffrage
who
have
— and who
the rights, privileges, and immunities appertaining
to that status.
*The
basic
economic
right
is
the right to a decent livelihood by whatever
means
The economic goods enumerated above are the essential ingredients of a decent livelihood. The rights listed in Franklin Roosevelt’s message to Congress in 1944 are simply another way of describing the ingredients of a decent livelihood to which everyone has a natural, human right. Thus conceived, a decent it
can be honestly obtained.
livelihood involves the comforts and conveniences of
successful pursuit of happiness.
life
that are accessory to a
We
•5°
Hold These Truths when only some
Political inequality exists in a society
part of the
population has the status of citizenship with suffrage and enjoys the
which
political liberty
that status confers, while the rest of the pop-
Those people
ulation, disfranchised, does not have political liberty.
government
are subjects of a
consent and
The
in
to
which they have not given
which they do not
participate.
unequal thus divide into the
politically
political have-nots.
Only
their
which
a society in
tions already noted) are political haves
is
one
political haves
(with the few excep-
all
in
and the
which
political equal-
ity exists.
T his consideration of economic equality and
political inequality
we must
conceive economic
gives us the
model
in
terms of which
equality and inequality.
The wrong conception
missed involves thinking of economic equality session of equal
economic
haves,
in
must be
that
dis-
terms of the pos-
amounts of wealth. In a society in which all are some may have more and some may have less, but
have enough wealth to supply them with the economic goods that
all
anyone needs
to lead a decent
human
life.
T he recognition and securing of economic rights w society in
which economic equality
that
members, individuals or
all its
none are economic have-nots
establish a
achieved by virtue of the fact
families, are
economic haves and ,
— none are seriously deprived, by des-
titution or dire poverty, of that
that
is
ill
minimal supply of economic goods
everyone needs.
T his conception of economic equality does not eliminate the eco-
among the haves between those who have who have less. What justifies some in having more?
nomic inequality more and those
To T
answer
all
this question,
turn once again to the political model.
all
possess the
same amount of
election or appointment,
exercise it
1
who are citizens with suffrage enjoy equal political status, those who are political haves by virtue of having that status
hough
not
that exists
more
political
political
power. Those citizens who, by
occupy public
office for a
power than ordinary
citizens.
term of years,
Their right
to
derives from their duty to perform the functions of the political
office they
occupy.
From
Political to
1
economic sphere, differences
In the
make
dividuals
of
Economic Rights
the contributions that in-
in
to the production of wealth justify the distribution
more wealth
to liberty
to
some than
to others.*
I
said earlier that the right
not a right to unlimited freedom, not a right to complete
is
autonomy, but rather
much
no more than anyone can exercise
justly
freedom
and do so without injuring others or the public right to equality, either political or
limited right
means
This
much
—
only as
a right to
— only
as
a right to a limited
liberty as justice allows,
The
1
much
common
economic,
good.
similarly a
is
equality as justice requires.
that limited equality will always be
accompanied by
as
inequality as justice also requires.
economic sphere,
In the
as
we have
seen, the limited equality that
justice requires consists in that state of affairs in
nomic haves
maxim human
needs.
is:
all
are eco-
needed for the pursuit of happiness. The
to the degree
of justice here
which
to each
The economic
and
all
according to their
common
inequality that justice also requires con-
some having more wealth than anyone needs. The maxim
sists in
of justice here Justice
is:
also
is
to each according to his or her contribution.
concerned with preventing the misuse of great wealth.
Those who have much more wealth than anyone needs may use to exert political pressures
and exercise
political
it
powers that cannot
be justified bv any political function they perform, for they act as private citizens rather than as public officials. I
he
political liberty
citizens
duties
is
and the
political participation
of other private
thus endangered, and the performance of their political
by officeholders may be aborted or skewed by the undue
influence exerted
upon them by persons of
great wealth in order to
serve their private interests, not the public good.
How
shall
economic
rights be secured?
How
shall the limited
economic equality defined above be established?
There would appear done.
They
‘There occur
are,
when
to be
two
distinct
ways
in
which
this
are not incompatible and therefore they can be
can be
combined
of course, exceptions to this principle. Unjust distributions of wealth
they are not based either on economic need or on economic contribution.
to
Hold These T ruths
VV e
•52
make a
another
third
Before
One is by means of income-producing
property;
bv means of the economic equivalents of property; and
is
the third
way.
is
some combination of the bv J
we go anv
further,
it is
first
two.
necessarv to give some thought to
income-producing property, for which another name
ownership of land or other instruments
capital: the
is
for the production of wealth.
John Locke, who influenced the thought of many of our Founding Fathers, in formulating the triad of basic natural rights, had said
were
that they
and estates.”
and property” or
either “life, liberty,
In the agricultural preindustrial
the possession of landed estates
“life, liberty,
economy of
was equivalent
his day,
to the possession of
income-producing property.
W hen,
than
a little less
a
hundred years
later,
George Mason
drafted a Declaration of Rights for adoption by the Virginia stitutional
Convention
nature equally free
which
are “the
.
.
he proclaimed that
in 1776, .
and have certain inherent
enjoyment of
life
and
liberty,
“all
men
Conbv
are
among
rights,”
with the means of
acquiring and possessing property, and pursuing and obtaining happiness and safety.”
Thomas
Jefferson, as
we know
in
,
writing the Declaration of
Independence, altered Mason’s phrasing of our inherent
human
rights,
means of acquiring and possessing property” and eliminating the words “obtaining” and substituting “the pursuit of happiness” for “the
“safety.”
These
alterations
were more than merely
rhetorical.
We
must
attribute to Jefferson a profound understanding of the fact that the
possession of income-producing property implemented the right to life
and
to the pursuit of happiness.
For
decent
a
human
life
and
for
the pursuit of happiness, a sufficient supply of economic goods
needed. This
It
is
needed
for the exercise of political liberty.
point explains
last
justified in
also
is
why
limiting suffrage to
our ancestors thought they were
men
of sufficient property.
Only
those with landed estates or other income-producing property in the
form of industrial
capital
had enough
free
time and other advantages,
including schooling, to devote to public affairs and to engage intelligently.
in
them
From
Political to
Economic Rights
•53
This was not the case for individuals whose only income derived J
from the miserable pittances they received toil
consumed the
hood
For them,
greater part of their waking lives from early child-
until the grave.
They had
advantages required for
by enfranchised
for their labors.
a
good use of the
To
citizens.
neither the free time nor the other
enjoyed
political liberty
have conferred suffrage upon them
under these circumstances would have jeopardized the conduct of public affairs.
Our
ancestors failed to realize that those
by imposing
in disfranchising
were not
unfit to
a
whom
they
felt justified
property qualification for suffrage
men
be citizens by any natural inferiority to
of
property, but rather by the economic deprivations they suffered as
wage-earners, and bv the the conditions of
life
wav
which thev were nurtured under
in
from
that resulted
their being
economic have-
nots. It
never occurred to our ancestors that
if,
as
poor and unpropertied had an equal right to
w
ith
human
beings, the
political liberty
along
the propertied rich, then they also had a right to the economic
conditions that would have
made
it
expedient as well as just to
enfranchise them as citizens with suffrage.
As we have already observed,
the
way
which
in
historic devel-
opments actually occurred involved extending the franchise laboring poor before
it
was prudent
to
do so because they had not
yet been surrounded by conditions of
become good
citizens
and exercise
to the
life
them
that enabled
to
their political liberty for the public
good. For the sake of expediency as well as justice,
it
remained
necessary to recognize the existence of economic rights and to secure
them
for the establishment of the
ity that justice requires.
Some
economic
as well as political equal-
progress in that direction has been
made in this century and especially in recent years. But we must do much more, either by constitutional amendments or by legislative enactments, to establish economic equality and to secure economic rights.
Earlier
by saying
I
asked the question: either
Mow
shall this
be done?
I
answered
by means of income-producing property or by
economic equivalent, or by some combination of the two.
Now
its it
*54 is
necessary to answer the
We H o l d These Truths further question: W hat are the economic
equivalents of income-producing property?
money is equivalent to the real money can buy, receiving a living
Since the purchasing power of
wealth
wage
goods and services that
in
for one’s labors
producing property
wage
is
in
an economic equivalent of owning income-
one or another form of
capital.
But
a living
not the only economic equivalent. In addition to decent
is
wages, those without income-producing property must also have
some hold on the same economic goods
that
owners of income-
producing property enjoy. T hese include sufficient free time from affairs;
economic security throughout
life
toil to
engage
and especially
in
public
in its later
years; adequate food and housing; access to adequate medical facilities for
health care; adequate educational facilities for the cultivation
of the mind; and even access to recreational portunities for a All these
good use of
facilities
free time in the pursuits of leisure.
economic goods can be secured
means of welfare
and other op-
legislation of the kind that
for
was
wage-earners by
initiated at the
of the Great Depression by Franklin Roosevelt’s
New
time
Deal.
Of
course, such welfare legislation had to be implemented fiscally bv
income and inheritance tration of
Woodrow
taxes.
W ilson;
been greatly increased since
Economic independence
is
These were
initiated in the
adminis-
the revenues from these sources have his day.
the one thing the economic equivalents
of income-producing property, in the form of welfare entitlements
and
benefits,
sufficient
cannot provide wage-earners. Only individuals having
income-producing property are persons of independent
means. T he possession of such economic independence by citizens with suffrage
is
certainly desirable,
meled and unfettered exercise of
if
not necessary, for the untram-
their political liberty.
Accordingly, the best solution of the problem of
how
to secure
the economic rights and establish the economic equality that are the
indispensable underpinnings of political democracy bination of the
having
a
two means
for
doing
so:
is
by some com-
by every individual or family
dual income, partly from the wages or salaries of labor,
accompanied by some welfare
benefits,
and partly from the revenues
From
Political to
Economic Rights
•55
earned by income-producing property through the ownership of equities in capital.
The
of course, would be for incomes derived from wages
ideal,
combined with income derived from the ownership of
or salaries
capital to suffice for the possession of
which individuals have
human
for the
life,
a right
all
the economic goods to
— the minimum needed
proper exercise of
effective pursuit of happiness.
Were
for a decent
political liberty,
that the case,
and
for an
some welfare
entitlements and benefits could be eliminated and others might be greatly reduced.*
We
are
still
far
state of affairs in
from even approximating the
which
independence that only are also far ideal of
few have now. T
in the
next and
and published
is
in 1958, entitled
also a
his
means we
as fully as possible the recently
democracy. Some of the things that remain
‘Relevant in this connection
and
individuals have a measure of economic
a relatively
from realizing
be considered
1958);
all
realization of the
a
final
to be
done
will
chapter of this book.
book that Louis Kelso and
The Capitalist Manifesto
more recent book written by him and
(New
I
wrote
York:
Patricia
I
in collaboration
Random House,
letter Kelso, entitled
Democracy and Economic Power (Cambridge, Mass.: Ballinger Publishing 1986).
emergent
Company,
CHAPTER
2 2
What Remains to
To
Be Done?
project all the steps that should be taken to improve the
Constitution bv further ideal of
democracy
would require me
An
amendments and more
in its
economic
to pretend to
even greater pretense to
as well as
1
to expedite the steps to
all
if
enactments
I
by asking questions
knew the answers.
1
dare
the questions that should be asked.
must be content with asking only those to
legislative
in at-
be taken.
instead of proceeding declaratively as
know
political aspects
1
therefore propose to proceed interrogatively
not even claim to
its
wisdom do not possess. wisdom would be involved
tempting to describe the constitutional and
needed
fully to realize the
mind from what has been
that, for the
most
part,
I
come
said explicitly or implicitly in the
preceding chapters.
Some
of these questions have been prompted by reflections about
our government occasioned by the Watergate
concerned w it
ith
crisis.
Only some
are
increasing the justice of the Constitution and making
better serve the ideals in the Preamble. Others look to the effec-
tiveness
ground
and efficiency of the government’s operations. As backfor
all
the questions asked, readers should recall
what was
Chapter 19 about novel circumstances and extraordinary innovations in the twentieth century, of which our eighteenth-
said in
century ancestors and even those
in
have had no inkling.
[156]
the nineteenth century could
What Remains
Two
to
things, in
Be Done?
my
'57
judgment, arc essential to the effectiveness of
w
constitutional government,
of laws rather than
a
respect to
ith
government of men. One
from public tionally or
tutional It is
The
other
government
the authority vested
is
power
the
is
who
office those officials either
who
a
of government or the acts of
in judicial tribunals to declare the acts
public officials unconstitutional.
being
its
remove
to
have acted unconstitu-
have violated other laws of the land. (The consti-
government of Great
Britain
is
defective in these respects.)
questionable whether the constitutional devices of impeach-
ment and conviction of implement
this
power.
impeached are the only ways
officials
We should
also ask
to
whether the privileges of
officeholders should not be limited so that they are not unduly protected
from proceedings aimed
remove them from
to
on
office
sus-
tained charges of unconstitutional or unlawful acts.
W hether
the Constitution
of safeguarding It is,
all
human
is
present perfectly just in the sense
at
rights
therefore, also questionable
of course, highlv questionable.
is,
whether the present limitations on
majority rule are enough to prevent
from becoming majority mis-
it
rule involving injustice. Equally important
majority rule
is
in fact operative,
the question whether
is
unhindered and unfrustrated by
such factors as undue influence of private or corporate wealth, position, organized lobbies for special interests,
All the questions to be asked rest
social
and so on.
on the assumption
that
we
are
irrevocably committed to the presidential system of constitutional
government and are not willing
to replace
it
by the parliamentary
system. That assumption requires us to reexamine the separation of
powers and our system of checks and balances, which are supposed to
make
whether
the rule of law effective. it
might not be
state distinct
from
It
also precludes us
a desirable
a chief of
from asking
innovation to have a head of
government,
as
is
the case in other
nations that have parliamentary systems of constitutional govern-
ment. The 1.
first
group of questions
making
Should we introduce changes
and convicting public easier
look to
officials
the rule of law
in the
aimed
at
more
effective.
procedure for impeaching
making these procedures
and speedier yet w ithout introducing undue
instability in the
W e Hold
158
These Truths
administration of government? Should we, for example, substitute a
congressional vote of no confidence for the impeachment of the
President, leading to
mandatory resignation?
Should we create one or more executive vice-presidents,
2.
distinct
from the one elected Vice-President who
as
successor to
is
the President, these executive vice-presidents to be appointed by the
members of his staff with the advice and consent of the Senate? Would not this type of organization have the advantage of President as
replacing the rapidly growing White officials
whose authority and power
1
louse staff with a set of public
are constitutionally defined
limited, especially in relation to the officials
who
are
and
members of
the President’s Cabinet and heads of departments in the executive
branch of government?
Should we create
3.
a
new
constitutional office, that of Public
Prosecutor, unattached to the Department of Justice (and thus in-
dependent of the executive branch of the government) an officer of the courts appointed judges, that
is,
same fashion
in the
shall
officials
be
as federal
with the advice and consent of the Senate, and
be charged with the prosecution of public
shall
who
who
suspected
of unconstitutional acts, with the further provision that no office-
holder shall be
immune from
prosecution by reason of special priv-
ilege?
A
second group of questions concern ways to
make majority
rule
more
effective. 1
in
Should we
.
limit the President to a single six-year
term
in office
order to prevent the imbalance of power and opportunity that
occurs in an electoral contest between an incumbent
and
a
2.
contender for
Should we
campaigns eight
it?
set severe limits to the public
as well as shorten the period of
weeks
at
in that office
funding of all electoral
such campaigns to
the most, thereby preventing the
six or
undue influence
exerted by private wealth on the outcome of the electoral process,
and also giving access financing in a
opportunity?
manner
to the electorate
through television by public
that assures candidates of equal time
and equal
What Remains 3
Should
.
we
to
Be Done?
159
introduce changes
in
the nominating procedures for
President and Vice-President by instituting a nationwide uniform
system of primaries, w
expenses involved
ith
limited and controlled so that
wealth
is
prevented? Should
undue
influence
in
primary campaigns
bv private or corporate
we also require that candidates for
Vice-
President be nominated through the primaries instead of leaving the
nomination to the Presidential nominee?
w ho
receives the second largest
Or
number of
should the individual votes in a nominating
convention be automatically selected as candidate for the office of Vice-President? 4
Should
.
we
abolish the electoral college and elect the President
and the Vice-President by
a
majority or
a plurality
of the popular
vote?
A
third group of questions looks to implementing the realization of the
democratic ideal that has so recently become an objective of our Constitution. 1.
Should we reconsider the innovations proposed by Theodore
Roosevelt in 1912
— namely, popular
initiative,
popular referendums
or plebiscites, and popular recall from office of officials
not been responsive to the majority of their constituents
who have
—
in
order
to increase the participatory, as contrasted with the representative,
aspect of our democracy?
Some
of these innovations have been adopted
some of them be adopted
in particular states.
Should
bv amendments
our Constitution?
2.
to
Should we create
all
new
a
of the People, whose duty
it
or
constitutional office, that of
shall
.
Should we attempt
Tribune
be to bring to the Supreme Court’s
attention cases involving the violation of inalienable 3
nationally
to develop
new
devices for
human civil
rights?
dissent
by
dissident minorities that regard themselves as suffering serious griev-
ances or injustices?
4
.
Should
we
attempt to enact
a
Bill
of Economic Rights, as
outlined by Franklin Roosevelt in 1944, in order to promote participation in the general
economic welfare
to a
much
greater extent
than has so far been accomplished?
A
fourth
of natural
and fnal group of questions
human
rights.
look to the further implementation
We Hold These Truths
i6o
Should we
1.
persist in the effort to get the
ment adopted, and
to
ensure the
full
Equal Rights amend-
equality that
due
is
all
persons
regardless of their gender?
Should we abolish the death penalty
2.
replacing
it
with
life
for
capital offenses,
all
imprisonment, permitting no release from prison
on parole? Should we introduce an amendment that prevents
3.
passing laws that
make crimes out of actions
that involve
states
from
no victims,
thus curtailing the exercise of individual freedom in matters not affected with the public interest
and not resulting
in injury to others?
some readers of this book might answer all must questions, or at least a large number of them, affirmatively. confess that my own answers would tend to be in the same direction. It
is
possible that
I
Anyone who
is
must
in this position
the changes called for be accomplished the Constitution, or
Can amendments to
face a further question.
must we consider
by further setting
up
second consti-
a
new constitution? could unhesitantly recommend a second
tutional convention to draft a
wish
I
I
convention
in light
constitutional
of novel conditions and innovations that exist
today but did not exist
in the
preceding centuries and were not even
imaginable or conceivable then. 1
cannot do so for three reasons.
day of single-issue
politics that
The
first is
would prevent
vention from concentrating on the public
the prevalence in our a constitutional
common good
con-
instead of
trying to serve the interests or prejudices of special groups in the
population.
My
second reason also has to do with the adverse effect on
a
constitutional convention of certain aspects of contemporary society.
The
first
constitutional convention
was conducted
in secrecy.
No
word of the proceedings reached the public until the work w as done and the document drafted was ready for submission to the states for ratification. If there it
were
to
be
a
probably could not be conducted
would be exposed
second constitutional convention, in the
same way.
to the disturbing glare of
Its
daily sessions
nationwide publicity,
including television broadcasts of the proceedings. Considering the
kind ol response that this would probably
elicit
from the general
What Remains
to
Be Done?
161
we now have
public, and the level of citizenship is
in this
highlv doubtful that a second convention could do
atmosphere conducive
its
country,
work
in
to rational deliberation, cool reasoning,
it
an
and
farsighted as well as prudent judgment.
My
third
and
statesmen or persons
who assembled we not find in a
reason
final
is
the absence in our society today of
in public life of a caliber
in Philadelphia in 1787.
population so
many
Why,
comparable to those
may be
it
asked, can
times larger than the population
of the thirteen original states a relatively small
number who would
be as qualified for the task as their predecessors? I
cannot give
that the best
larger
minds
they did
politics as
number
answer
a satisfactory
in
much
our
to this question except to say
larger population
do not go
Perhaps the
in the eighteenth century.
into
much
of citizens in our present population are not nearly
as well educated.
1
heir
minds
are not as well cultivated
and their
characters not as well formed.
Even
men
if
a
second constitutional convention were to assemble
of a character comparable to those
1787, and even
if
in
that second convention could be
circumstances favorable to
would not
who met
find a receptive
present citizenry, to
whom
good
a
states-
Philadelphia in
conducted under
result, the resulting constitution
and sympathetic audience among our it
would have
to be
submitted for adop-
tion.
They would understand
its
not have the kind of schooling that enabled provisions and to appraise their worth.
them
to
The vast
majority would not even be able to read intelligently and critically the kind of arguments in favor of adopting the
new
constitution that
were written by Alexander Hamilton, James Madison, and John Jay, and published in current periodicals in the years 1787 and 1788.
A
radical reform of basic schooling in the
United States would
have to precede any attempt by whatever means to improve our
system of government through improving T hat
is
its
Constitution.
also an indispensable prerequisite for
of democracy
we
have so
perhaps, even survive.
far
making the degree
achieved prosper, work better, or,
PART FIVE Three Documents That Comprise the American Testament
The
Declaration
of Independence [THOMAS JEFFERSON]
A
Declaration by the Representatives of the United States of America, in general Congress assembled, July 4, 1776
When
in
the course of human events,
one people
to dissolve the political
with another, and to assume separate and equal station to
God
entitle
them,
a
it
becomes necessary
for
bands which have connected them
among
the powers of the earth, the
which the laws of nature and of nature’s
decent respect to the opinions of mankind re-
quires that they should declare the causes which impel
them
to the
separation.
We
hold these truths to be self-evident, that
all
men
are created
endowed by their Creator with certain unalienamong these are life, liberty, and the pursuit of
equal; that they are able rights; that
happiness. That to secure these rights, governments are instituted
among men,
deriving their just powers from the consent of the
governed; that whenever any form of government becomes destructive of these ends, it,
and to
institute
principles,
seem most
it
is
the right of the people to alter or to abolish
new government,
and organizing
its
powers
laying in
likelv to effect their safety
its
foundation on such
such form, as to them
shall
and happiness. Prudence,
indeed, will dictate that governments long established should not be
changed
for light
and transient causes; and accordingly
all
experience
hath shown, that mankind are more disposed to suffer, while evils 1
*65]
1
Hold These Truths
VV e
66
are sufferable, than to right themselves
by abolishing the forms to
which they are accustomed. But when
a
long train of abuses and
usurpations, pursuing invariably the same object, evinces a design to
reduce them under absolute despotism,
it
is
their right,
duty, to throw off such government, and to provide their future security.
colonies, alter their
and such
is
tions, all
having
new guards
for
patient sufferance of these
now
which constrains them
the necessity
is
a history
states.
To
The
to
history of the present
of repeated injuries and usurpa-
in direct object the
tyranny over these
their
Such has been the
former systems of government.
King of Great Britain
it is
prove
establishment of an absolute
this, let facts
be submitted to
a
candid world: 1
le
has refused his assent to laws, the most wholesome and nec-
essary for the public good. 1
le
has forbidden his governors to pass laws of immediate and
pressing importance, unless suspended in their operation assent should be obtained; and,
when
till
his
so suspended, he has utterly
neglected to attend to them. 1
le
has refused to pass other laws for the accommodation of large
districts of people, unless those
people would relinquish the right
of representation in the legislature; a right inestimable to them, and
formidable to tyrants only. lie has called together legislative bodies at places unusual, un-
comfortable, and distant from the depository of their public records, for the sole
purpose of fatiguing them into compliance with
his
measures. I
le
has dissolved representative houses repeatedly, for opposing,
with manly firmness, his invasions on the rights of the people. 1
le
has refused for a long time, after such dissolutions, to cause
others to be elected;
whereby the
legislative
powers, incapable of
annihilation, have returned to the people at large for their exercise;
the state remaining, in the meantime, exposed to
all
the dangers of
invasion from without, and convulsions within. I
le
has endeavored to prevent the population of these States; for
that purpose, obstructing the laws for naturalization of foreigners,
The Declaration of Independence
167
refusing to pass others to encourage their migrations hither, and raising the conditions of
He
new
appropriations of lands.
has obstructed the administration of justice, by refusing his
assent to laws for establishing judiciary powers. 1
has
le
made
judges dependent on his will alone, for the tenure
of their offices, and the 1
Ic
amount and payment of
has erected a multitude of
new
offices,
their salaries.
and sent hither swarms
of officers to harass our people, and eat out their substance. 1
le
has kept
among
without
us, in times of peace, standing armies,
the consent of our legislatures.
He has affected to render the military
independent
and superior
of,
the civil power.
to,
He
has
combined with others
to subject us to a jurisdiction foreign
our Constitution, and unacknowledged by our laws; giving
to
his
assent to their acts of pretended legislation:
For quartering large bodies of armed troops among
For protecting them, by
mock
a
trial,
us:
from punishment
murders which thev should commit on the inhabitants of these For cutting off our trade with
all
for
any
States:
parts of the world:
For imposing taxes on us without our consent: f or depriving us, in f or transporting us
many
cases, of the benefits of trial
beyond
by
jury:
seas to be tried for pretended offenses:
For abolishing the free system of English laws
in a
neighboring
province, establishing therein an arbitrary government, and enlarging
its
boundaries so as to render
at
it
once an example and
fit
instrument for introducing the same absolute rule into these colonies:
For taking away our charters, abolishing our most valuable laws,
and altering fundamentally the forms of our governments: For suspending our invested with 1
le
power
le
to legislate for us in
waging war against
and declaring themselves all
cases whatsoever.
us.
has plundered our seas, ravaged our coasts, burnt our towns,
and destroyed the 1
legislatures,
has abdicated government here, by declaring us out of his
protection, and
He
own
is,
lives
of our people.
at this time, transporting large
armies of foreign mercenaries
1
We Hold These Truths
68
complete the works of death, desolation, and tyranny, already
to
begun, with circumstances of cruelty and perfidy scarcely paralleled
most barbarous ages, and
in the
unworthy the head of
totally
a
civilized nation.
He
has constrained our fellow-citizens taken captive on the high
seas to bear
arms against
of their friends and brethren, or to
He
become the executioners
their country, to fall
themselves bv their hands.
has excited domestic insurrections amongst us, and has en-
deavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose destruction of
all
known
ages, sexes,
rule of warfare
we have
most humble terms; our repeated
only by repeated injury. every bv J J
A
prince,
which may define J
act
an undistinguished
and conditions.
In every stage of these oppressions, in the
is
petitioned for redress,
petitions have been
whose character
a tyrant, J
is
unfit to
is
answered
thus marked
be the ruler of
a free people.
Nor have we been wanting
We
in attentions to
our British brethren.
have warned them from time to time of attempts bv their
islature to
extend an unwarrantable jurisdiction over
us.
We
leg-
have
reminded them of the circumstances of our emigration and settlement here.
We have appealed to their
we have
native justice and magnanimity, and
conjured them, by the
ties
of our
common
kindred, to
disavow these usurpations, which would inevitably interrupt our connections and correspondence.
They, too, have been deaf to the
voice of justice and of consanguinity. in
the necessity
we
must, therefore, acquiesce
which denounces our separation, and hold them,
hold the rest of mankind, enemies in war,
We, in
We
as
in peace, friends.
therefore, the representatives of the United States of America,
general Congress assembled, appealing to the
Supreme |udge of
the world tor the rectitude of our intentions, do, in the name, and
by authority
of the
good people
of these colonies,
and declare, that these united colonies tree
are,
and of
solemnly publish right
and independent States; that they are absolved from
to the British
and the
Crown, and
state of
that
Great Britain
all is,
political
ought to be, all
allegiance
connection betw een them
and ought
to be, totally dissolved;
The Declaration of Independence
and that
as free
and independent
169
States, they
have
full
levy war, conclude peace, contract alliances, establish
and
to
do
all
of right do. reliance
power
commerce,
other acts and things which independent States
And
for the
support of this declaration,
to
w ith
may
a firm
on the protection of Divine Providence, we mutually pledge
to each other
our
lives,
our fortunes, and our sacred honor.
The
Constitution of
the United States
of America SEPTEMBER
17,
We, the people of the United States,
in
1787
order to form a more
PERFECT UNION, ESTABLISH JUSTICE, INSURE DOMESTIC TRANQUILLITY, PROVIDE FOR THE
COMMON DEFENSE, PROMOTE THE GENERAL WELFARE,
AND SECURE THE BLESSINGS OF LIBERTY TO OURSELVES AND OUR POSTERITY, DO ORDAIN AND ESTABLISH THIS CONSTITUTION FOR THE UNITED States of America.
Article
Section a 1
i.
All legislative
One
powers herein granted
Congress of the United States, which
shall
be vested
shall consist of a
in
Senate and
louse of Representatives.
Section
2.
The House
of Representatives shall be
members chosen every second year bv States,
and the electors
in
composed of
the people of the several
each State shall have the qualifications
requisite for electors of the
most numerous branch of the State
legislature.
No
person shall be
Representative
a
that State in
who
which he
shall not,
shall
shall not
and been seven years
to the age of twenty-five years,
United States, and
who
when
be chosen.
[
•
7
0
]
have attained
a citizen
of the
elected, be an inhabitant of
The Constitution of
the
United States of America
1
Representatives and direct taxes shall be apportioned
which may be included within
several States
to their respective to the
shall
the
be determined by adding
whole number of free persons, including those bound to service
other persons.
years after the
The
first
actual enumeration shall be
three-fifths of
made within
three
meeting of the Congress of the United States,
and within every subsequent term of ten years, they shall by law direct.
in
such manner as
The number of Representatives
shall not
exceed one for every thirty thousand, but each State shall have least
one Representative; and
the State of
New
sachusetts eight,
New
five,
1
Union, according
term of years, and excluding Indians not taxed,
for a all
numbers, which
this
among
7
Maryland
Hampshire
until
shall
such enumeration
shall
at
be made,
be entitled to choose three, Mas-
Rhode Island and Providence Plantations one, Connecticut
New Jersey
four, Pennsylvania eight, Delaware one,
York
six,
six,
Virginia ten, North Carolina five, South Carolina five,
and Georgia three.
When
vacancies happen in the representation from any State, the
executive authority thereof shall issue writs of election to
fill
such
vacancies.
The House of Representatives officers,
and
Section
3.
shall
The
Senate of the United States State,
and each Senator
Immediately
choose their Speaker and other
have the sole power of impeachment.
two Senators from each six years;
shall
have one vote.
be assembled
in
consequence of the
election, they shall be divided as equally as
first
classes.
The
be composed of
chosen by the legislature thereof, for
shall
after they shall
shall
may
be into three
seats of the Senators of the first class shall
at the expiration
be vacated
of the second year, of the second class,
at
the
expiration of the fourth year, and of the third class, at the expiration
of the sixth year, so that one-third
and
if
may
be chosen every second year;
vacancies happen by resignation or otherwise during the recess
of the legislature of any State, the executive thereof
may make tem-
porary appointments until the next meeting of the legislature, which shall
then
No
fill
person
such vacancies. shall
be
a
Senator
who
shall not
have attained to the
We Hold These Truths
172
age of thirty years, and been nine years
State for
The
who
and
States,
when
shall not,
which he
of the United
a citizen
elected, be an inhabitant of that
be chosen.
shall
Vice-President of the United States shall be President of the
Senate, but shall have no vote, unless they be equally divided.
The
Senate shall choose their other
pro tempore
officers,
and also
absence of the Vice-President, or
in the
a
President
when he
shall
exercise the office of President of the United States.
The Senate
When When
have the sole power to try
shall
sitting for that
impeachments.
purpose, they shall be on oath or affirmation.
the President of the United States
and no person
shall preside:
all
rence of two-thirds of the
tried, the
is
Chief Justice
be convicted without the concur-
shall
members
present.
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any under the United States; but the
office of honor, trust, or profit
party convicted shall, nevertheless, be liable and subject to indict-
ment,
judgment, and punishment, according to law.
trial,
Section
for Senators
by the
make
The
4.
times, places, and
and Representatives
legislature thereof; but the
shall
manner of holding be prescribed
may
Congress
at
in
elections
each State
any time by law
or alter such regulations, except as to the places of choosing
Senators.
The Congress meeting
by law appoint
first
a different
Each house
5.
and qualifications of constitute a
assemble
be on the
shall
Section
shall
quorum
its
at least
Monday
shall
do business; but
may
may be
members
Each house
shall
a
majority of each shall smaller
number may
authorized to compel the
provide. rules of
for disorderly behavior, and,
two-thirds, expel a
a
such manner, and under such
in
Each house may determine the its
shall
be the judge of the elections, returns,
attendance of absent members,
house
every year, and such
December, unless they
own members, and
to
in
day.
adjourn from day to day, and
penalties, as each
in
once
its
proceedings, punish
with the concurrence of
member. keep
a
journal of
its
proceedings, and from time
The Constitution of to time publish the
the
United States of America
'73
may
same, excepting such parts as
in their judg-
ment require secrecv, and the yeas and nays of the members of either house on any question shall, at the desire of one-fifth of those present, be entered on the journal.
Neither house, during the session of Congress,
without the
shall,
consent of the other, adjourn for more than three days, nor to any other place than that in which the
Section
The
6.
two houses
shall
be
sitting.
Senators and Representatives shall receive a com-
pensation for their services, to be ascertained by law and paid out
They
of the Treasury of the United States.
treason, felony, and breach of the peace, be privileged
during their attendance in
except
shall, in all cases
from
arrest
the session of their respective houses, and
at
going to and returning from the same; and for any speech or
debate
in either
house they
be questioned
shall not
in
any other
place.
No was
Senator or Representative
elected, be appointed to
shall,
any
during the time for which he
civil office
under the authority of
the United States, which shall have been created, or the
whereof
emoluments
have been increased during such time: and no person
shall
holding any office under the United States shall be
a
member
of
either house during his continuance in office.
Section
7.
of Representatives; but the Senate
amendments Every
bill
as
on other
which
and the Senate
shall
shall,
not he shall return
it,
have originated,
or concur with
have passed the House of Representatives
before
w
may propose
bills.
become
it
President of the United States;
shall
if
a law',
be presented to the
he approve he
shall sign
ith his objections, to that
who
house
in
but
if
which
it
it,
shall enter the objections at large
journal and proceed to reconsider
it.
If after
two-thirds of that house shall agree to pass the
likewise be reconsidered, and shall
shall
become
a law.
But
if
on
their
such reconsideration bill,
it
shall
together with the objections, to the other house, by which
it
House
All bills for raising revenue shall originate in the
be sent, it
shall
approved by two-thirds of that house
in all
such cases the votes of both houses
be determined by yeas and nays, and the names of the persons
voting for and against the
bill shall
be entered on the journal of each
1
W e Hold
74
house respectively.
If
anv
bill shall
not be returned by the President
within ten days (Sundays excepted) after to
him, the same
shall
unless the Congress
it,
which case
it
shall not
be
by be
law, in like
a
their
it
have been presented
shall
manner
as
he had signed
if
adjournment prevent
its
return, in
a law.
Every order, resolution, or vote
to
which the concurrence of the
Senate and House of Representatives a
These Truths
may
be necessary (except on
question of adjournment) shall be presented to the President of
the United States; and before the
same
shall take effect, shall
approved by him, or being disapproved by him,
shall
be
be repassed
by two-thirds of the Senate and House of Representatives, according to the rules
Section
and limitations prescribed
8.
a bill.
T he Congress shall have power to lay and collect taxes,
duties, imposts,
mon
of
in the case
and
excises, to
pay the debts and provide for the com-
defense and general welfare of the United States; but
all
duties,
imposts, and excises shall be uniform throughout the United States;
money on the credit of the United States; To regulate commerce with foreign nations and among l
o borrow
States,
To
and with the Indian
the several
tribes;
establish an uniform rule of naturalization,
and uniform laws
on the subject of bankruptcies throughout the United States;
To and
coin
fix
money, regulate the value
thereof,
and of foreign coin,
the standard of weights and measures;
T o provide for the punishment of counterfeiting the securities and current coin of the United States;
T o establish post-offices and post-roads; T o promote the progress of science and useful arts by securing for limited times to authors
and inventors the exclusive right
to their
respective writings and discoveries;
T o constitute tribunals inferior to the Supreme Court; T o define and punish piracies and felonies committed on the high seas l
and offenses against the law of nations; o declare war, grant
rules concerning captures l
letters
of
marque and
reprisal,
and make
on land and water;
o raise and support armies, but no appropriation of
that use shall be for a longer term than
two
years;
money
to
The Constitution of
the
United States of America
To provide and maintain a navy; To make rules for the government
'75
and regulation of the land and
naval forces;
To
provide for calling forth the militia to execute the laws of the
Union, suppress insurrections, and repel invasions;
To
provide for organizing, arming, and disciplining the militia,
and for governing such part of them
may
as
be employed
in
the
service of the United States, reserving to the States respectively the
appointment of the
officers,
and the authority of training the
militia
according to the discipline prescribed by Congress;
To
exercise exclusive legislation in
exceeding ten miles square) as may, by cession of par-
district (not
and the acceptance of Congress, become the
ticular States
the
Government of
over
all
State in
which the same
arsenals, dockyards, all
by the consent of the
Section
9.
of the States
magazines,
and other needful buildings; and
laws which shall be necessary and proper for carrying
Constitution in the
department or
legislature of the
shall be, for the erection of forts,
into execution the foregoing powers, this
seat of
the United States, and to exercise like authority
places purchased
To make
cases whatsoever over such
all
and
Government of
all
other powers vested by
the United States, or in any
officer thereof.
The migration or now existing shall
importation of such persons as any think proper to admit shall not be
prohibited bv the Congress prior to the year one thousand eight
hundred and
eight, but a tax or
duty
may
be imposed on such
importation, not exceeding ten dollars for each person.
The unless
privilege of the writ of habeas corpus shall not be suspended,
when
require
No No tion
in cases
of rebellion or invasion the public safety
may
it.
bill
of attainder or ex post facto law shall be passed.
capitation or other direct tax shall be laid, unless in propor-
to
the census or enumeration
hereinbefore directed to be
taken.
No No
tax or
duty
shall
be
laid
on
articles
exported from any State.
preference shall be given by anv regulation of
commerce or
revenue to the ports of one State over those of another; nor
shall
VV e vessels
bound
Hold These Truths
from one State be obliged
to or
to enter, elcar, or
pay
duties in another.
No money
shall
of appropriations
be drawn from the Treasury but
made by
law; and a regular statement and account
of the receipts and expenditures of
from time
lished
No
consequenee
in
all
public
money
shall
be pub-
to time.
of nobility shall be granted by the United States; and no
title
person holding any office of profit or trust under them
shall,
without
the consent of the Congress, accept of any present, emolument,
or
office,
title,
of any kind whatever, from anv king, prince, or
foreign state.
Section
io.
No
State shall enter into any treaty, alliance, or
confederation; grant letters of bills
of credit;
payment of
marque and
reprisal; coin
make anything but gold and
debts; pass anv
money; emit
silver coin a
tender in
of attainder, ex post facto law, or
bill
law impairing the obligation of contracts, or grant any
title
of no-
bility.
No
State shall, without the consent of Congress, lay anv imposts
or duties on imports or exports, except
necessary for executing all
its
what may be absolutely
inspection laws; and the net produce of
duties and imposts, laid by any State on imports or exports, shall
be for the use of the Treasury' of the United States; and
all
such
laws shall be subject to the revision and control of the Congress.
No
State shall, without the consent of Congress, lav any duty of
tonnage, keep troops or ships of war
in
time of peace, enter into any
agreement or compact with another State or with
a
or engage in war, unless actually' invaded or in such
imminent danger
as will not
admit of delay.
Article
Section
i.
The executive power
the United States ot America.
term
of four years,
for the
foreign power,
1
Two shall
be vested
le shall
in a
President of
hold his office during the
and together with the Vice-President, chosen
same term, be
elected as follows:
The Constitution of
Each State
may
the
United States of America
shall appoint, in
direct, a
number of
such manner
'77
as the legislature thereof
whole number of
electors, equal to the
may be
Senators and Representatives to which the State
entitled in
the Congress; but no Senator or Representative, or person holding
an office of trust or profit under the United States, shall be appointed an elector.
[The
electors shall
meet
in their respective States
and vote by
two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And thev shall make a list of all the persons voted for, and of the number of votes for each; which ballot for
list
they shall sign and certify, and transmit sealed to the seat of
the
Government of
the Senate.
Senate and
The I
the United States, directed to the President of
President of the Senate shall, in the presence of the
louse of Representatives, open
the certificates, and
all
The person having the greatest President, if such number be a majority
the votes shall then be counted.
number of votes shall be the of the whole number of electors appointed; and than one
who
if
there be
more
have such majority, and have an equal number of
House of Representatives shall immediately choose bv ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the votes, then the
States shall be necessary to a choice. In every case, after the choice
of the President, the person having the greatest the electors shall be the V ice-President. But
two or more who have equal them by
if
number of
votes of
there should remain
votes, the Senate shall choose
from
ballot the Vice-President.]*
The Congress may determine and the day on which they
the time of choosing the electors
shall give their votes,
which day
shall
be the same throughout the United States.
No person
except a natural-born citizen, or
’This procedure was changed by the Twelfth
a citizen
Amendment.
of the United
VV e
178
Hold These Truths
States at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall
who
office
shall not
been fourteen years
any person be
have attained to the age of thirty-five years, and a resident
within the United States.
from
In case of the removal of the President
resignation, or inability to discharge the
same
said office, the
shall
may bv law
Congress
eligible to that
office,
or of his death,
powers and duties of the
devolve on the V ice-President, and the
provide for the case of removal, death, res-
ignation, or inability, both of the President and V ice-President,
declaring what officer shall then act as President, and such officer shall act shall
accordingly until the disability be removed or
a
President
be elected.
The President
shall,
compensation, which ing the period for
at
stated times, receive for his services a
be increased nor diminished dur-
shall neither
which he
shall
have been elected, and he
receive within that period any other
emolument from
shall not
the United
any of them.
States or
Before he enter on the execution of his office he shall take the following oath or affirmation: “I
do solemnly swear
(or affirm) that
office of President of the ability preserve, protect,
I
will faithfully execute the
United States, and
will to the best of
my
and defend the Constitution of the United
States.”
Section
2
.
The President
Army and Navy States
may
when
shall
be Commander-in-Chief of the
of the United States, and of the militia of the several
called into the actual service of the United States; he
require the opinion, in writing, of the principal officer in each
of the executive departments, upon any subject relating to the duties
of their respective offices, and he shall have power to grant reprieves
and pardons
for offenses against the
United States, except
in cases
of impeachment. 1
le shall
Senate, to
have power, by and w
make
treaties,
ith
the advice and consent of the
provided two-thirds of the Senators present
concur; and he shall nominate, and, by and with the advice and
consent of the Senate, shall appoint ambassadors, other public ministers
and consuls, judges of the Supreme Court, and
all
other officers
The Constitution of
the
United States of America
'79
whose appointments are not herein otherwise and which shall be established by law; but the Congress
of the United States,
provided
for,
may by law
vest the
appointment of such
inferior officers, as they
think proper, in the President alone, in the courts of law, or in the
heads of departments.
The
President shall have
power
to
fill
up
all
may
vacancies that
happen during the recess of the Senate, by granting commissions
which
shall expire at the
Section
3.
He
shall
end of
their next session.
from time
to time give to the
formation of the state of the Union, and
recommend
Congress
in-
to their con-
sideration such measures as he shall judge necessary and expedient;
he may, on extraordinary occasions, convene both houses, or cither of them, and in case of disagreement between them with respect to the time of adjournment, he
may
adjourn them to such time as he
he shall receive ambassadors and other public
shall think proper;
ministers; he shall take care that the laws be faithfully executed, and shall
commission
Section
4.
all
The
the officers of the United States.
President, Vice-President, and
removed from
the United States shall be
office
all civil
officers of
on impeachment
for
and conviction of treason, bribery, or other high crimes and misdemeanors.
Article fbree
Section in
i.
The
judicial
power of the United
one Supreme Court, and
may from the
in
such inferior courts
time to time ordain and establish.
Supreme and
States shall be vested
The
as the
Congress
judges, both of
inferior courts, shall hold their offices during
good
behavior, and shall, at stated times, receive for their services a com-
pensation which shall not be diminished during their continuance in office.
Section
2.
The
judicial
and equity, arising under States,
and
thority; to
treaties all
power
shall
extend to
this Constitution, the
made, or which
shall
all
cases, in
law
laws of the United
be made, under their au-
cases affecting ambassadors, other public ministers
i
We Hold These Truths
80
and consuls;
to
cases of admiralty and maritime jurisdiction; to
all
controversies to which the United States shall be a party; to con-
between two or more
troversies
States;
between
a State
and citizens
of another State; between citizens of different States; between
citi-
zens of the same State claiming lands under grants of different States,
and between
a State, or the citizens thereof,
and foreign
states,
citizens, or subjects.
In
cases affecting ambassadors, other public ministers and con-
all
which
suls,
and those
shall
have original jurisdiction. In
tioned the
a State shall
Supreme Court
and
to law
in
fact,
be partv, the Supreme Court the other cases before
all
men-
have appellate jurisdiction, both as
shall
with such exceptions and under such regulations as
the Congress shall make.
T he
by
trial
jury;
of
all
crimes, except in cases of impeachment, shall be
and such
trial
shall
be held
in the State
crimes shall have been committed; but
any
Section
3.
said
not committed within
State, the trial shall be at such place or places as the
may by law have in
when
where the
Congress
directed.
T reason against the United States
shall consist
only
levying war against them, or in adhering to their enemies, giving
them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. T he Congress shall have power to declare the punishment of treason, but
no attainder of treason
forfeiture except during the
life
shall
1.
Full faith
or
of the person attainted.
Article
Section
work corruption of blood
and credit
Four
shall
be given
in
each State to the
public acts, records, and judicial proceedings of every other State.
And
the Congress
which such
may by
acts, records,
general laws prescribe the
and proceedings
shall
manner
in
be proved, and the
effect thereof.
Section ileges
2.
The
citizens of each State shall be entitled to
and immunities of citizens
in the several States.
all
priv-
The Constitution of
A person charged
the
in
United States of America
1S1
any State with treason, felony, or other crime,
who shall flee from justice, and be found demand of the executive authority of the
in
another State,
shall,
which he
State from
on
fled,
be delivered up, to be removed to the State having jurisdiction of the crime.
No
person held to service or labor
in
one State, under the laws
thereof, escaping into another, shall, in consequence of
any law or
regulation therein, be discharged from such service or labor, but
be delivered up on claim of the party to
shall
labor
may
Section this
whom
such service or
be due.
New
3.
States
may
Union; but no new State
jurisdiction of
any other
junction of two or
more
be admitted by the Congress into
shall
be formed or erected within the
State; nor
any State be formed by the
States or parts of States, without the consent
of the legislatures of the States concerned as well as of the Congress.
The Congress rules
shall
have power to dispose of and make
all
needful
and regulations respecting the territory or other property be-
longing to the United States; and nothing
in this
Constitution shall
be so construed as to prejudice any claims of the United States or of any particular State.
Section
4.
The United
States shall guarantee to every State in
Union a republican form of government, and shall protect each of them against invasion, and on application of the legislature, or of the executive (when the legislature cannot be convened), against this
domestic violence.
Article Five
The
Congress, whenever two-thirds of both houses
necessary, shall propose
amendments
shall
deem
to this Constitution, or,
it
on
the application of the legislatures of two-thirds of the several States, shall call a
convention for proposing amendments, which,
case, shall be valid to stitution,
when
all
ratified
several States, or
in either
intents and purposes, as part of this
by the
by conventions
Con-
legislatures of three-fourths of the in three-fourths thereof, as the
one
I
Hold These Truths
VV e
82
mode of ratification may he proposed by the Congress; provided that no amendment which may be made prior to the year
or the other
one thousand eight hundred and eight the
and fourth Clauses
first
and that no
State, without
in the its
shall in
any manner
Ninth Section of the
Article;
first
consent, shall be deprived of
affect
its
equal
into, before the
adop-
suffrage in the Senate.
Article Six
All debts contracted and engagements entered
tion of this Constitution, shall be as valid against the
under
this Constitution, as
United States
under the Confederation.
This Constitution and the laws of the United States which be made
in
pursuance thereof and
all
treaties
made, or which
be made, under the authority of the United States,
supreme law of the
land;
and the judges
in
shall
shall shall
be the
every State shall be bound
thereby, anything in the Constitution or laws of any State to the
contrary notwithstanding.
The
Senators and Representatives before mentioned, and the
members of
the several State legislatures, and
dicial officers,
shall
all
executive and ju-
both of the United States and of the several States,
be bound by oath or affirmation, to support this Constitution;
but no religious
test shall
office or public trust
ever be required as
under the United
a qualification to
anv
States.
Article Seven
1
he
ratification of the
conventions of nine States shall be sufficient
tor the establishment of this Constitution
between the States so
ratifying the same.
Done
in
convention by the unanimous consent of the States present
the seventeenth day of
September
in
the year of our Lord one thou-
sand seven hundred and eighty-seven and of the independence of
The Constitution of
the
United States of America
18 3
the United States of America the twelfth, in witness whereof
we
have hereunto subscribed our names. Ci°
Washington
—
Presidt
and deputy from Virginia Attest:
William Jackson,
Secretary
AMENDMENTS Article
Congress
shall
make no law
One
respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
Article
A
Two
well-regulated militia being necessary to the security of a free
State, the right of the people to keep
and bear arms
shall not
be
infringed.
Article 'Three
No soldier shall,
in
time of peace, be quartered
the consent of the owner, nor in time of
in
any house, without
war but
in a
manner
to
be
prescribed by law.
Article
The and
Four
right of the people to be secure in their persons, houses, papers, effects, against
unreasonable searches and seizures,
shall not
be
i
VV e
84
violated,
and no warrants
Hold These Truths but upon probable cause, sup-
shall issue,
ported by oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.
Article Five
No person shall
be held to answer for
a capital, or
otherwise infamous
Grand Jury, except in the militia, when
crime, unless on a presentment or indictment of a in cases arising in the
land or naval forces, or
time of war or public danger; nor shall any person
in actual service in
be subject for the same offense to be twice put
in
jeopardy of
life
or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of
due process of law; nor
life,
shall private
liberty, or property,
without
property be taken for public
use, without just compensation.
Article Six
In
all
criminal prosecutions the accused shall enjoy the right to a
speedy and public
trial,
wherein the crime
shall
by an impartial jury of the State and have been committed, which
district
district shall
have been previously ascertained bv law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining wit-
nesses in his favor, and to have the assistance of counsel for his
defense.
Article Seven
In suits at
twenty
common
law, where the value in controversy shall exceed
dollars, the right of trial
fact tried
by
a
by jury
shall
be preserved, and no
jury shall be otherwise reexamined in any court of
the United States, than according to the rules of the
common
law.
The Constitution of the United States of America
.85
Article Eight
Excessive
bail shall
not be required, nor excessive fines imposed,
nor cruel and unusual punishments
inflicted.
Article Nine
The enumeration
in the
Constitution of certain rights shall not be
construed to denv or disparage others retained by the people.
Article Fen
The powers
not delegated to the United States by the Constitution,
nor prohibited by
it
to the States, are reserved to the States respec-
tively, or to the people.
Article Eleven
The
judicial
power of the United
extend to any suit
in
States shall not be construed to
law or equity, commenced or prosecuted against
one of the United States by citizens of another State, or by citizens or subjects of any foreign state.
Article I\ve he
The
electors shall
for President
meet
in their respective States,
and Vice-President, one of whom,
and vote by
at least, shall
be an inhabitant of the same State with themselves; they shall in their ballots the
person voted for as President, and
ballots the person voted for as Vice-President,
distinct lists of
all
which
lists
seat of the
and they
persons voted for as President and of
voted for as Vice-President, and of the
number
ballot
not
name
in distinct
shall all
make
persons
of votes for each,
they shall sign and certify, and transmit sealed to the
Government of
the United States, directed to the Pres-
i
W e Hold
86
These Truths
idcnt of the Senate; the President of the Senate shall, in the presence
of the Senate and
and the votes
shall
number of votes be
a
I
louse of Representatives, open
all
the certificates
then be counted; the person having the greatest
for President shall
majority of the whole
be the President,
number
if
such number
of electors appointed; and
no
if
person have such majority, then from the persons having the highest
numbers not exceeding three on the ident, the House of Representatives But
ballot, the President.
in
list
of those voted for as Pres-
shall
choose immediately, by
choosing the President the votes
shall
be taken by States, the representation from each State having one vote; a
quorum
purpose
for this
from two-thirds of the be necessary to
shall consist
and
States,
And
a choice.
if
memberor members
majority of
a
the
of a
all
the States shall
louse of Representatives shall
1
not choose a President whenever the right of choice shall devolve
upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having
number of votes as Vice-President shall be the Viceif such number be a majority of the whole number of
the greatest President,
electors appointed,
and
if
no person have
two highest numbers on the
quorum whole number of
list,
purpose
for the
the
Senators, and
be necessary to
a choice.
then from the
the Senate shall choose the Vice-
President; a
shall
a majority,
a
of
shall consist of two-thirds
majority of the whole
number
But no person constitutionally
igible to the office of President shall
inel-
be eligible to that of Vice-
President of the United States.
Article Thirteen
Section
Neither slavery nor involuntary servitude, except as
i.
punishment
for
crime
w hereof
victed, shall exist within the
a
the party shall have been duly con-
United States, or anv place subject
to
their jurisdiction.
Section
2
.
Congress
appropriate legislation.
shall
have power to enforce
this article
by
The Constitution of
United States of America
the
>« 7
Article Fourteen
Section
All persons
i.
born or naturalized
and subject to the jurisdiction thereof, are States
and of the State wherein they
reside.
the United States,
in
United
citizens of the
No
State shall
make
or
enforce any law which shall abridge the privileges or immunities of citizens of the
of to
life,
United States; nor
libertv, or property,
anv person within
Section
2.
its
any State deprive any person
shall
without due process of law; nor deny
jurisdiction the equal protection of the laws.
Representatives shall be apportioned
among the several
States according to their respective numbers, counting the
whole
number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in
Congress, the executive and judicial officers of
members of
the legislature thereof,
is
a State, or the
denied to any of the male
inhabitants of such State, being twenty-one years of age, and citizens
of the United States, or in any in rebellion, or
be reduced shall
way
abridged, except for participation
other crime the basis of representation therein shall
in the
number of such male
proportion which the
bear to the whole
number of male
citizens
citizens
twenty-one years of
age in such State.
Section
3.
No
person shall be
a
Senator or Representative
in
Congress, or elector of President and Vice-President, or hold anv office, civil or military,
under the United States, or under any State,
who, having previously taken an oath as
as a
an officer of the United States, or as
legislature, or as
member of Congress, or a member of any State
an executive or judicial officer of anv State, to
support the Constitution of the United States, in insurrection or rebellion against
to the
shall
have engaged
the same, or given aid or comfort
enemies thereof. But Congress may, by
a
vote of two-thirds
of each House, remove such disability.
Section
4.
The
validity of the public debt of the
United States,
authorized by law, including debts incurred for payment of pensions
and bounties shall not
for services in suppressing insurrection or rebellion,
be questioned. But neither the United States nor any State
1
We Hold These Truths
88
assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the shall
loss or
emancipation of any slave; but
claims shall be held
Section
illegal
such debts, obligations and
and void.
The Congress
5.
all
shall
have power to enforce, by appro-
priate legislation, the provisions of this article.
Article Fifteen
Section
The right of citizens of the United States
i.
to vote shall
not be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.
Section
The Congress
2.
by appropriate
shall
have power to enforce
this article
legislation.
Article Sixteen
The Congress
shall
have power to lay and collect taxes on incomes,
from whatever source derived, without apportionment among the and without regard to any census or enumeration.
several States,
Article Seventeen
The
Senate of the United States shall be composed of two Senators
from each
State, elected
each Senator
by the people thereof,
have one vote.
shall
have the qualifications requisite
branch of the State
When
The
for six years;
and
electors in each State shall
for electors of the
most numerous
legislatures.
vacancies happen in the representation of any State in the
Senate, the executive authority of such State shall issue writs of election to
State
fill
such vacancies: Provided That the Legislature of any ,
may empower
pointments legislature
until
may
the executive thereof to
the people
direct.
fill
make temporary
the vacancies
by election
ap-
as the
The Constitution of
This
amendment
the
United States of America
shall not
189
be so construed as to affect the election
or term of any Senator chosen before
it
becomes
valid as part of the
Constitution.
Article Eighteen
Section
i
.
After one year from the ratification of this article the
manufacture,
sale, or
transportation of intoxicating liquors within,
the importation thereof into, or the exportation thereof from the
United States and
all
beverage purposes
is
Section
2.
territory subject to the jurisdiction thereof for
hereby prohibited.
The Congress and
the several States shall have con-
current power to enforce this article bv appropriate legislation.
Section been
This article shall be inoperative unless
3.
ratified as
an
amendment
to the Constitution
shall
it
by the
have
legislatures
of the several States, as provided in the Constitution, within seven the years from the date of the submission hereof to the States bv J
J
Congress.
Article Nineteen
The
right of citizens of the
United States to vote
shall not
be denied
by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate
or abridged
legislation.
Article
Section
i
.
The terms
Twenty
of the President and Vice-President shall end
noon on the twentieth day of January, and the terms of Senators and Representatives at noon on the third day of January, of the years at
in
which such terms would have ended
ratified;
and the terms of
Section
2.
if this article
had not been
their successors shall then begin.
The Congress
shall
assemble
at least
once
in
every
YV e
i9
Hold These Truths noon on the
year, and such meeting shall begin at
January, unless they
Section
by law appoint
a different
day of
day.
the time fixed for the beginning of the term of
If, at
3.
shall
third
the President, the President elect shall have died, the Vice-President
become
elect shall
President.
If a
President shall not have been
chosen before the time fixed for the beginning of
his term, or if the
President elect shall have failed to qualify, then the Vice-President elect shall act as President until a President shall
may by law
the Congress
have qualified; and
provide for the case w herein neither
a
President elect nor a Vice-President elect shall have qualified, declaring
who
who
to act shall be selected,
is
shall
then act as President, or the manner in which one
and such person
The Congress may by law
4.
provide for the case of the
whom the House of Representatives
death of any of the persons from
may choose
accordingly
have qualified.
until a President or Vice-President shall
Section
shall act
President whenever the right of choice shall have
a
devolved upon them, and for the case of the death of any of the persons from
whom
may
the Senate
choose
a
Vice-President when-
ever the right of choice shall have devolved upon them.
Section
5.
Sections
1
and
2
shall take effect
of October follow ing the ratification of this
Section been
6.
This
ratified as
article shall
shall
it
have
an amendment to the Constitution by the legislatures
Article
1
day
w
ithin seven vcars
from the
submission.
its
Section
fifteenth
article.
be inoperative unless
of three-fourths of the several States date of
on the
.
T he eighteenth
of the United States
Section
2.
is
Twenty-One
article of
amendment
to the Constitution
hereby repealed.
T he transportation or importation into any State, ter-
ritory, or possession of the
United States
for delivery or use therein
ot intoxicating liquors, in violation of the laws thereof,
is
hereby
prohibited.
Section
3.
T his article shall be inoperative unless
it
shall
have
The Constitution of
been
ratified as
United States of America
the
19
*
an amendment to the Constitution bv conventions J
in the several States, as
provided
in
the Constitution, within seven
years from the date of the submission hereof to the States by the
Congress.
Twenty-Two
Article
Section
i
.
more than
No
person
shall
be elected to the office of the President
twice, and no person
or acted as President, for
who
has held the office of President,
more than two years of
term to which
a
some other person was elected President shall be elected to the office of the President more than once. But this Article shall not applv to anv person holding the
office of President
proposed by the Congress, and
may
shall not
when
was
this Article
prevent any person
who
be holding the office of President, or acting as President, during
the term within
which
this Article
becomes operative from holding
the office of President or acting as President during the remainder
of such term.
Section been
2.
This
ratified as
article shall
be inoperative unless
it
shall
have
an amendment to the Constitution by the legislatures
of three-fourths of the several States within seven years from the date of
submission to the States by the Congress.
its
Article Twenty-Three
Section
i
.
The
United States
District constituting the seat of
shall
appoint
in
Government of
such manner as the Congress
the
may
direct:
A number
of electors of President and Vice-President equal to
the whole
number
of Senators and Representatives in Congress to
which the
District
would be
entitled
if it
were
a State,
but
in
no
event more than the least populous State; they shall be in addition to those appointed
by the
States, but they shall be considered, for
the purposes of the election of President and Vice-President, to be electors appointed
by
a State;
and they
shall
meet
in the District
W e Hold These Truths
192
and perform such duties
as
provided by the twelfth
article
of amend-
ment.
Section
2.
The Congress
bv appropriate
i
.
this article
legislation.
Article
Section
have power to enforce
shall
T he right of
Twenty -Four
citizens of the
United States
to vote in
any
primary or other election for President or Vice-President, for electors for President or Vice-President, or for Senator or Representative in
Congress,
shall not
be denied or abridged bv the United States or
any State by reason of
Section
2.
failure to
legislation.
Article
his
i.
poll tax or other tax.
T he Congress shall have power to enforce this article
bv appropriate
Section
pay any
Twenty -Five
In case of the removal of the President
from
office or of
death or resignation, the Vice-President shall become President.
Section
2.
Whenever
there
is
a
vacancy
President, the President shall nominate a take office
upon confirmation by
a
in the office
of the Vice-
V ice-President w ho
majority vote of both
1
shall
louses of
Congress.
Section
3.
Whenever
the President transmits to the President pro
tempore of the Senate and the Speaker of the tatives his written declaration that he
powers and duties of
his office,
and
is
until
1
louse of Represen-
unable to discharge the he transmits to them
a
written declaration to the contrary, such powers and duties shall be
discharged by the Vice-President as Acting President.
Section
4.
Whenever
the Vice-President and a majority of either
the principal officers of the executive departments or of such other
body
as
Congress may by law provide, transmit
tempore of the Senate and the Speaker of the
to the President 1
louse of Represen-
tatives their written declaration that the President
charge the powers and duties of his
office, the
pro
is
unable to dis-
Vice-President shall
The Constitution of
the
United States of America
'93
immediately assume the powers and duties of the
Acting
office as
President.
when
Thereafter,
the President transmits to the President pro
tempore of the Senate and the Speaker of the tatives his written declaration that
no
I
louse of Represen-
resume
inability exists, he shall
the powers and duties of his office unless the Vice-President and a
majority of either the principal officers of the executive department or of such other
body
as
Congress
may bv law
provide, transmit
within four days to the President pro tempore of the Senate and the
Speaker of the
1
louse of Representatives their written declaration
that the President
is
unable to discharge the powers and duties of
Thereupon Congress
his office.
shall
decide the issue, assembling
within forty-eight hours for that purpose
if
not in session.
Congress, within twenty-one days after receipt of the declaration, or,
if
Congress
is
after
Congress
is
latter
If
the
written
not in session, within twenty-one days
required to assemble, determines by two-thirds
vote of both Houses that the President
powers and duties of
his office, the
is
unable to discharge the
V ice-President
shall
continue to
discharge the same as Acting President; otherwise, the President shall
resume the pow ers and duties of
Article
Section
The
i.
his office.
Twenty -Six
right of citizens of the
United States,
who
are
eighteen years of age or older, to vote shall not be denied or abridged
bv the United States or any Section
2
.
The Congress
by appropriate
legislation.
state
on account of
shall
have power to enforce
age. this article
The Gettysburg Address [Abraham Lincoln]
Four score and seven years ago our continent a
new
proposition that
Now we nation, or
all
men
to the
any nation so conceived and so dedicated, can long endure.
a
a
great battlefield of that war.
portion of that
and proper that
field as a final resting
we
should do
But, in a larger sense,
who
live.
We
have come to
place for those
It is
who
altogether fitting
this.
we
— we cannot hallow —
dead,
this
are created equal.
here gave their lives that that nation might
crate
and dedicated
nation, conceived in liberty
on
are engaged in a great civil war, testing whether that
YVe are met on dedicate
fathers brought forth
cannot dedicate
this
ground.
The
struggled here have consecrated
— we
cannot conse-
brave men, living and it
far
above our poor
power to add or detract. The world w ill little note nor long remember what we sav here, but it can never forget what they did here. It is for us the living, rather, to
be dedicated here to the unfinished work
which they w ho fought here have thus It is
that
nobly advanced.
rather for us to be here dedicated to the great task remaining
before us to that
far so
—
that
from these honored dead we take increased devotion
cause for which they gave the
we
last full
measure of devotion;
here highly resolve that these dead shall not have died in
vain; that this nation,
under God,
shall
have
a
new birth of freedom;
and that government of the people, bv the people, shall
not perish from the earth.
l'94l
for the
people
APPENDICES Annotated Excerpts
from Historical
Documents
APPENDIX A
The
Constitutional
Convention of 1787
The Convention met from May
September
14 until
17, 1787.
The
most complete record of the sessions was kept by James Madison, although his notes were not published until
1
840.
During the sessions
no reports of the debates were released
to the public so as not to
prejudice the ratification process. While
we now
the Convention’s
The Convention
work
for granted, the
take the result of
outcome was never
certain.
did not convene with a mandate to draw up a
new
frame of government but to rework the Articles of Confederation. Strong differences of opinion existed among the delegates, and they
were
freely expressed.
The comments that
reprinted below represent only
were touched upon: the
some of the
issues
small-state, large-state controversy;
direct or indirect representation; protection of
human
rights; the
legitimate objects of government; the real purpose of the Convention;
the need for a
bill
of rights; the admission of
new
states to the
Union;
and whether the Congress should have two houses or only one.
The
delegates quoted here are, in order of appearance:
Roger Sherman of Connecticut
George Mason of Virginia James Madison of Virginia John Dickinson of Delaware William Paterson of
New Jersey 1
»
97
]
We Hold These Truths
19H
Alexander El bridge
New
lamilton of
1
York
Gerry of Massachusetts
Benjamin Franklin of Pennsylvania Their statements are
chronological order, not in order of subject
in
matter.
Mr. Sherman [Conn.]: the elections ought to be
continued,
and
state
it is
If
it
were
in
view to abolish the
by the people.
If
governments,
state
the state governments are to he
necessary, in order to preserve
harmony between
the national
governments, that the elections to the former should be made by
the latter. T he right of participating in the national government sufficiently secured to the people
by
their election of the state legislatures.
T he objects of the Union, he thought, were few: danger:
(2)
(1)
defense against foreign
against internal disputes and a resort to force; (3) treaties with
foreign nations; (4) regulating foreign it.
T hese, and perhaps
few
a
commerce and drawing revenue from
The
better in the hands of the states.
may
large states. States
civil
confederation
and criminal, would be much
people are more happy
Some
to legislate
le
was
and execute within
Under
[Va.j:
I
than
a
for giving the general
defined province.
the existing Confederacy, Congress rep-
resent the states, not the people of the states; their acts operate
not on the individuals. T he case will be changed in the
The
in small
others were perhaps too large, the powers
of government not being able to pervade them.
Colonel Mason
a
indeed be too small, as Rhode Island, and thereby'
be too subject to faction.
government power
rendered
lesser objects, alone
of the states necessary. All other matters,
ernment.
would be
new
on the
states ,
plan of gov-
people will be represented; they ought therefore to choose
the representatives. T he requisites in actual representation are that the
representatives should sympathize with their constituents, should think as
they think and
feel as
they
feel,
and
that, for these purposes, [they
even be residents among them. Much, he democratic elections.
1
le
admitted that
]
should
had been alleged against
said,
much might
be said; but
it
was
to
be considered that no government w as free from imperfections and evils
and that improper elections,
in
many
instances,
publican governments. But compare these in
w ith
were inseparable from
the advantage of this form
favor of the rights of the people, in favor of
persuaded there w
as a better
chance
for
re-
human
nature.
y\
as
proper elections bv the people,
if
I
le
The Constitutional Convention of 1787
199
money had Was it to be
divided into large districts, than by the state legislatures. Paper
been issued bv the
supposed that the
when
latter
the former were against
would not send
state legislatures then
legislature
and that
election of one branch, at least, of the
by the people immediately
this
mode, under proper
to the national
depended on them?
legislature patrons of sueh projects if the choice
Mr. Madison [Va.] considered an
it.
of free government,
as a clear principle
regulations, had the additional advantage
of securing better representatives as well as of avoiding too great an agency
of the state governments
in
the general one.
from Connecticut (Mr. Sherman) all
He
thinking the objects mentioned to be
in
the principal ones that required
national government.
a
more
Those were
combined with them the
certainly important and necessary objects; but he
necessity of providing
from the member
differed
effectually for the security of private rights
and
the steady dispensation of justice. Interferences with these were evils
thing else produced this Convention.
which had more, perhaps, than any-
Was
it
supposed that republican
to be
liberty
would long
states?
The gentleman (Mr. Sherman) had admitted
state, faction
under the abuses of
exist
and oppression would
wherever these prevailed, the in
state
it
practised in
was
prevail.
It
was too
small.
some of the
that, in a very small
to be inferred then that,
Had
they not prevailed
the largest as well as the smallest-— though less than in the smallest; and
were we not thence admonished to enlarge the sphere
would admit? T
of the government
his
as far as the nature
was the only defense against the
inconveniencies of democracy consistent with the democratic form of gov-
ernment. All civilized societies interests, as they
would be divided
happened
into different sects, factions,
to consist of rich
and
and poor, debtors and creditors,
the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers
of this political leader or that
political leader, the disciples of this religious sect or that religious sect. In all
cases
w here
a
majority are united by
rights of the minority are in danger.
a
common
What motives
prudent regard to the maxim that honesty experience to be as
little
Respect for character
among whom
is
always diminished
Conscience, the only remaining
itself
numbers,
may become
a
little is
is
to
tie,
in
them?
are to restrain
the best policy
regarded by bodies of
the blame or praise
viduals; in large
is
interest or passion, the
men
as
is
A
found bv
by individuals.
proportion to the
number
be divided. is
known
to be expected
to be inadequate in indi-
from
it.
Besides, religion
motive to persecution and oppression.
These obser-
W e Hold
200
These Truths mod-
vations are verified by the histories of every country, ancient and ern.
.
.
.
W hy was America so justly apprehensive of parliamentary
Because Great Britain had
injustice?
separate interest, real or supposed, and,
a
if
her
authority had been admitted, could have pursued that interest at our expense.
We
have seen the mere distinction of color made,
in the
most enlightened
a
ground of the most oppressive dominion ever exercised
by man over man.
W hat has been the source of those unjust laws complained
period of time,
among
of
ourselves?
Has
not been the real or supposed interest of the
it
major number? Debtors have defrauded their creditors.
The
landed interest
has borne hard on the mercantile interest. T he holders of one species of
property have thrown
disproportion of taxes on the holders of another
a
species.
we are common
T he lesson united by a
to
draw from
the
whole
is
where
that
majority are
a
sentiment, and have an opportunity, the rights of the
minor party become insecure.
In a republican
united, have always an opportunity.
government the majority,
The only remedy
to enlarge the
is
number
sphere and thereby divide the community into so great
a
and parties
that, in the first place, a majority will not
be likelv
moment
have
to
a
common
interest separate
if
of interests at
the
same
from that of the whole or of
the minority; and, in the second place, that, in case thev should have such
may
an interest, they
on us then to try system on such
not be apt to unite in the pursuit of it.
remedy, and with that view to frame
this
a scale
was incumbent
It
and
in
such
form
a
as will control
all
republican
a
the evils
which
have been experienced.
Mr. Dickinson
[Del.J considered
it
one branch of the
as essential that
be drawn immediately from the people and
legislature should
that the other should be
chosen by the legislatures of the
expedient
as
This com-
states.
bination of the state governments with the national government was as politic as
w
it
as unavoidable. In the
through such the
I
a refining
formation of the Senate,
process as will assimilate
louse of Lords in England.
Mr. Paterson
[N.J.]:
.
tained, the representatives
.
.
If
.
.
into hotchpot.
be
tried,
vania,
To
and we
may be
as near as
the sovereignty of the states
is
say that this
is
to
it.
It
to
states, not
to vary the idea of equal sovereignty. is
that of
throwing the
impracticable will not
whether the
and Vermont accede
it
to be main-
must be drawn immediately from the
will cure the difficulty
shall see
to carry
.
from the people; and we have no power
The only expedient that
it
we ought
make
it
so.
states
Let
it
citizens of Massachusetts, Pennsyl-
will
be objected that coercion will be
The Constitutional Convention of impracticable. But will will
it
i
be more so
ySy
one plan than the other?
in
depend on the quantum of power
from the
201
collected, not
from the individuals; and according
states or
on
Its
efficacy
being drawn
its
to his plan
it
may be
exerted on individuals as well as according that of Mr. Randolph.
A distinct executive and It is
judiciary also
urged that two branches
purpose of
may be
in the legislature are necessary.
check. But the reason of the precaution
a
Within
this case.
were equally provided by
where partv heats
a particular state,
necessary. In such a
body
Congress,
as
is
it
his plan.
Why?
For the
not applicable to
is
prevail, such a
check
necessary, and,
less
besides, the delegations of the different states are checks on each other.
No. What they wish
the people at large complain of Congress?
may have more power.
Congress
If
the
Do that
is
power now proposed be not enough,
make additions to it. W ith proper powers, Congress will act with more energy and wisdom than the proposed national legislature; being fewer in number, and more secreted and refined by the mode of the people hereafter will
election.
.
.
.
Mr. Hamilton [N.Y.] had been
hitherto silent on the business before
the Convention, partly from respect to others
and experience rendered him unwilling theirs,
to
and partly from
whose sentiments
accede. to
The
crisis,
as
whose superior
to bring
his delicate situation
abilities, age,
forward ideas dissimilar to
with respect to his
own
state,
expressed bv his colleagues he could by no means
however, which
now marked our
affairs
was too
serious
permit any scruples whatever to prevail over the duty imposed on every
man
to contribute his efforts for the public safety
and happiness.
He was
obliged, therefore, to declare himself unfriendly to both plans.
He was
particularly
vinced that no
opposed to that from
amendment of
country
in
being fully con-
the Confederation leaving the states in pos-
session of their sovereignty could possibly
hand, he confessed he was
New Jersey,
much
answer the purpose.
On the other
discouraged by the amazing extent of the
expecting the desired blessings from any general sovereignty that
could be substituted. As to the powers of the Convention, he thought the
doubts stated on that subject had arisen from distinctions and reasonings too subtle.
A federal
government he conceived
independent communities into one.
Two to
.
New Jersey,
he was embarrassed.
in a
same
bad government or
therefore, will not do.
The extent
mean an
association of
.
sovereignties cannot coexist within the
Congress must eventuate
plan of
.
to
What
limits.
in
then
Giving powers
no government. The is
to be
done?
I
lere
of the country to be governed, discouraged
him. ... In every community where industry
is
encouraged, there will be
202
of
a division
few and the many. Hence, separate
into the
it
There will be debtors and creditors,
arise.
they will oppress the few. Give
many. Both,
all
power
therefore, ought to have
against the other.
.
.
\
YY’estern states.
He was
for admitting
They
it.
will
necessary to limit the
number of new
states.
1
manner
le
power
that each
many,
to the
w ill oppress
may defend
the
itsell
them on
they acquire power,
if
like
guard against these consequences, he thought states to
moved
states already confederated, the
it
be admitted into the Union
that they should never be able to
accordingly
but not for
liberal terms,
oppress commerce and drain our wealth into
To
a
power
to the few, they
They w ill,
the YY'estern country.
such
all
ished, before the question should be put, that the
putting ourselves into their hands.
in
Give
louse might be turned to the dangers apprehended from
attention of the
men, abuse
etc.
interests will
.
Mr. Gerry [Mass.] w
all
Hold T h e s e Truths
YY e
outnumber the Atlantic
that in order to secure the liberties of the
number of representatives
branch
in the hrst
of the states which shall hereafter be established shall never exceed in
number
the representatives from such of the states as shall accede to this Confederation.
.
.
.
Mr. Madison: people, cases as
let
In
all
cases
where the general government
on the
to act
is
the people be represented and the votes be proportional. In
where the government
Congress now
is
on them,
act
to act let
on the
all
manner
states as such, in like
the states be represented and the votes
be equal. This
w
ground of compromise,
as the true
but he denied that there w as any ground.
w hich
1
if
there
w as any ground
le called for a single
at all;
instance in
the general government was not to operate on the people individually.
The practicability of making laws, with coercive sanctions, political bodies
had been exploded on
of the large states would in
some way
all
hands.
1
le
for the states as
observed that the people
or other secure to themselves
a
weight
proportioned to the importance accruing from their superior numbers. they could not effect
it
by
a
proportional representation in the government,
they would probably accede to no government which did not sure depend tor
its
efrtcacv
on
it
YY ilson:
in great
their voluntary cooperation; in
they would indirectly secure their object.
Mr.
If
.
.
mea-
w hich case
.
That the states ought to be preserved he admitted. But does
follow that an equality of votes
reason to suppose that
if
is
necessary for the purpose?
their preservation should
Is
there any
depend more on the
large
than on the small states the security of the states against the general gov-
ernment would be diminished? Are the
large states less attached to their
The Constitutional Convention of iy8y
more
existence,
then,
is
commit
likely to
suicide, than the small?
not necessary as tar as he can conceive; and
objections, to this insuperable one:
eracy It
The
An
among
liable,
is
equal vote, other
great fault of the existing Confed-
inactivity.
is its
has never been a complaint against Congress that they governed over-
much. The complaint has been
we were
this defect
—
Congress
that they have
we
sent here. Shall
equality of votes as to
203
proposed? No,
is
system which
to the
governed too
very equality carries us directly
our duty to
rectify.
cannot, indeed, act by virtue of this equality, but they
government
as they
prosecuted bv
have done
in
The may
small states control the
Congress. T his very measure
minority of the people of America.
a
To remedy
by establishing an
effect the cure
this
it is
little.
is
here
then, the object of
Is,
way? Will not our congovernment and you have
the Convention likelv to be accomplished in this stituents say
— We sent you
to
form an
efficient
given us one more complex indeed, but having
government.
.
.
all
the weakness of the former
.
THE CLOSING DAY, SEPTEMBER Dr. Franklin [Pa.] rose with to writing for his
own
a
speech
i
7
hand, which he had reduced
in his
convenience, and which Mr. Wilson read
in the
words
following:
Mr. President,
which
do not
I
at
I
confess that there are several parts of this Constitution
present approve, but
them. For having lived long, obliged,
I
mv own
Most men, indeed, possession of
I
all
to
truth,
1
many
most
never approve
instances of being
grow the more
pay more respect
as well as
shall
change opinions,
once thought right but found to be
therefore that the older
judgment and
I
fuller consideration, to
even on important subjects, which It is
not sure
have experienced
by better information or
otherwise.
am
I
to the
apt
I
am
to
doubt
judgment of others.
sects in religion, think themselves in
and that wherever others differ from them
far error. Steele, a Protestant, in a dedication, tells the
Pope
it is
so
that the only
difference between our churches in their opinions of the certainty of their
doctrines
England
[that] the
is is
never
Church of Rome
own
infallibility as that
so naturally as a certain French lady
said, “1 don’t
myself
that’s
know how always
in
infallible
and the Church of
wrong. But though many private persons think
in the
almost as highly of their it
is
it
happens,
the right
—
II
who,
sister,
of their sect, few express
in a
but
1
dispute with her
sister,
meet with nobody but
n y a que moi qui a toujours raison."
We Hold These Truths
204 In these sentiments,
sir,
they are such; because
if
and there people
is
agree to this Constitution with
I
think a general government necessary for us,
I
no form of government but what may be
blessing to the
a
well administered, and believe farther that this
if
all its faults,
is
be
likely to
well administered for a course of years, and can only end in despotism,
forms have done before
as other
when
it,
become
the people shall
so
corrupted as to need despotic government, being incapable of any other. I
doubt, too, whether any other convention
to
make
to
have the advantage of their
those
Constitution; for
a better
men
all
joint
we
may be able number of men
can obtain
when you assemble
a
wisdom, you inevitably assemble with
their prejudices, their passions, their errors of opinion, their
local interests,
and their
From such an assembly can
selfish views.
a perfect
production be expected? It
therefore astonishes me,
to perfection as
it
does; and
to find this
sir,
I
think
system approaching so near
will astonish
it
our enemies,
who
are
waiting with confidence to hear that our councils are confounded like those of the builders of Babel; and that our states are on the point of separation, only to
Thus
throats. better,
meet hereafter
consent,
I
and because
am
I
have had of its errors
1
sir,
for the
to this Constitution
not sure that
they shall die.
The members While the
last
.
.
good.
1
The
opinions
I
have never whispered
then proceeded to sign the instrument.
members were
signing
and often
hopes and fears being able to
tell
I)r.
Franklin, looking toward
a rising
members near him
in the
as to
it,
w hich
difficult to distinguish in their art a rising
1
not the best.
expect no
I
.
painted, observed to a few
w ithout
is
sacrifice to the public
the President’s chair, at the back of
my
it
because
of them abroad. Within these walls thev w ere born, and here
a syllable
he, “often,
purpose of cutting one another’s
from
sun happened to be
that painters a
had found
it
setting sun. “1 have,” said
course of the session, and the vicissitudes of
its
issue,
w hether
have the happiness to know that
it
looked
was
it
is
at
that
behind the President
rising or setting.
a rising
and not
But now
a setting
at
length
sun.”
APPENDIX
The
B
Federalist
and
Anti-Federalist Papers
Fears and hopes: These were what divided the opponents of
from the document’s advocates. The
fication of the Constitution
opponents used
a
wide variety of arguments, but
essentially they
feared a national government that might prove too strong. so recently fought a
war
Having
independence, they were not about to
for
find themselves
once more subject
was heedless of
their rights
The
rati-
to
an overbearing authority that
and freedoms.
advocates of the Constitution focused on the weakness of the
Articles of Confederation, a
so easily undercut
by any or
America, yet to be, needed
a
document whose provisions could be all
of the states.
States of
frame of government equal to the task
of strengthening and perpetuating
The proponents
The United
vigorous and growing nation.
a
of the Constitution were called Federalists and
the opponents Anti-Federalists. Within a few years these adversaries
would
line
During the in
up
in the first political parties
circulated.
both sides published their arguments
ratification debates,
newspapers within each Both
sets of
under the new government.
state;
and
their
arguments were widely
arguments have since been collected, but
was the work of the Constitution’s proponents
that has
it
come down
to posterity as
one of the most notable books on constitutional gov-
ernment: 7 he
Federalist.
This collection of eighty-five essays was
written bv John Jay, Alexander Hamilton, and James Madison during 1787 and 1788. 1
205
]
We Hold These Truths
206
The
selections printed
below are
in
two
parts.
The first
set consists
of statements, some of them anonymous, by Anti-Federalists.
second
comprises statements from The
set
The
Federalist.
ANTI-FEDERALIST PAPERS Richard Henry Lee: Letters from the Federal
Farmer
(October ...
If
it
were possible
of a free government, the
seat of
W ealth,
offices,
and preserve the features
evident that the middle states, the parts of
government, would enjov great advantages,
while the remote states would experience the provinces.
Republican
1787)
to consolidate the states
still it is
Union about the
9,
to the
many
inconveniences of remote
and the benefits of government would
become much
the center; and the extreme states and their principal towns less
important.
.
collect in
.
.
T here are certain unalienable and fundamental rights, which in forming the social compact ought to be explicitly ascertained and fixed.
enlightened people, to those
who
which w
ill
those
who
in
forming
this
govern, and they will
compact, fix
will not resign
all
limits to their legislators
A
free
and
their rights
and
rulers,
who are governed, as w ell as bv know thev cannot be passed unper-
soon be plainly seen by those govern; and the
latter
w
ill
ceived by the former and without giving a general alarm. These rights should
be
made
the basis of every constitution; and
if a
people be so situated, or
have such different opinions, that they cannot agree fixing
them,
it
is
a
in ascertaining
and
very strong argument against their attempting to form
one entire society, to
live
under one system of laws only.
.
.
.
Richard Henry Lee: Letters
from
the Federal
(October .
.
.
These powers
—
Farmer 10,
legislative, executive,
well as external objects.
to the
Republican
1787) and
judicial
— respect
Those respecting external objects,
as
internal as all
foreign
The Federalist and
A nti-Federalist
concerns, commerce, imposts,
and Indian this
to
Many powers
government. in
else,
with any propriety, but
in
that respect internal objects ought clearly
as those to regulate trade
it;
2°7
causes arising on the seas, peace and war,
can be lodged nowhere
affairs,
be lodged
all
Papers
between the
states,
weights and
measurers, the coin or current monies, post offices, naturalization,
These powers mav be exercised without
etc.
essentially affecting the internal
police of the respective states.
But powers to lay and collect internal taxes, to form the
militia, to
make
bankrupt laws, and to decide on appeals, questions arising on the internal laws of the respective states, are of
them almost powers to
a
very serious nature, and carry with
all
other powers. These taken in connection with the others, and
raise
armies and build navies, proposed to be lodged in this govern-
ment, appear to
me
and those which
to
will
comprehend be
left
all
the essential powers in this community,
no great importance.
to the states will be of
Richard Henry Lee: Letters
from the Federal Farmer
(October
.
.
.
It
is
to
Constitution
1787)
12,
be observed that when the people it
the people of
be their
will
last
and supreme
be incompatible w
ith
w herever
it
also
in
entirelv abolish J
s,
it,
shall
this,
it
will entirely abolish
but the laws of the United
pursuance of the federal Constitution will be
supreme laws, and wherever they
customs, rights, law
any part of
the ancient customs, rights, the laws, or the consti-
be made
shall
adopted not by
but by the people of
this Constitution, or
them and do them away. And not only which
will be
etc.,
tutions heretofore established in the United States,
States
adopt the proposed
shall
act;
New' Hampshire, Massachusetts,
the United States; and
Republican
to the
be incompatible with those
shall
or constitutions heretofore established, they
them and do them awav. J
.
.
w
ill
also
.
“Centinel”:
Anonymous
letters in the Philadelphia Independent Gazetteer
(October
.
.
.
If
1787)
one general government could be instituted and maintained on prin-
ciples of freedom, local
5,
it
would not be so competent
concerns and w ants, of every particular
to attend to the various
district, as well as the peculiar
We Hold These Truths
208
who
governments,
means
are nearer the scene, and possessed of superior
of information; besides,
if
the business of the whole
Union
managed
to be
is
Do we not already who are remote from
bv one government, there would not be time. the inhabitants in a
number of
larger states,
see that
the seat
of government, are loudly complaining of the inconveniences and disad-
vantages they are subjected to on this account, and that, to enjoy the comforts of local
The
government, they are separating into smaller divisions?
Senate, the great efficient body in this plan of government,
on the most unequal
stituted
The
principles.
.
is
.
.
con-
Union
smallest state in the
has equal weight with the great states of Virginia, Massachusetts, or Pennsylvania.
The
Senate, besides
its
legislative functions, has a
very consid-
erable share in the executive; none of the principal appointments to office
can be
made without
appointment years, the
by
will lead to
mode
is
may
would
either
permanency. The members are chosen
be continued for
as there
is
of
its
for six
no exclusion
which, from their extensive
life,
would follow of course. The President, who w ould be
influence,
mere pageant of
a
The term and mode
advice and consent.
under the control of Congress, and
rotation, they
means of
its
become
w ith
he coincides
state unless
the views of the Senate,
the head of the aristocratic junto in that bcxlv, or
its
minion; besides, their influence being the most predominant could the best
And from
secure his reelection to office.
his
power of granting pardons, he
might screen from punishment the most treasonable attempts on the of the people
w hen
instigated
by the Senate.
“A Anonymous
.
.
it is
If
we
.
essay in the Boston Gazette and the Country Journal 26, 1787)
can confederate upon terms that will secure to us our
an object highly desirable because of
the proposed plan proves such a one,
will it
If
.
Federalist”:
(November .
.
endanger our
must and ought
liberties as
to
it
stands,
its I
let
may It
its
hope it
it
will
first
be adopted; but
be amended;
in
if it
order to which
The inundation those who have had
be open to inspection and free inquiry.
universal
good
qualities
have been so redundant that
not be improper to scan the characters of will
liberties,
additional security to the whole.
of abuse that has been thrown out upon the heads of
any doubts of
liberties
be allowed that
its
most strenuous advocates.
many undesigning
adoption from the best motives, but these are
it
may wish its modest and silent when citizens
The Federalist and Anti-Federalist Papers
compared
to the greater
These
investigation.
the gilded
20y
number who endeavor
to suppress
attempts for
all
violent partisans are for having the people gulp
down
blindfolded, whole and without any qualification whatever.
pill
These consist generally of the noble order of Cincinnatus, holders of public securities,
men
of great wealth and expectations of public office, bankers,
and lawyers. These, with their
The law vers
combination. for
train of
dependents, form the aristocratic
keep up an incessant declamation
in particular
adoption; like greedy gudgeons they long to satiate their voracious
its
stomachs w
ith
the golden bait.
T
he numerous tribunals to be erected bv the
new plan of consolidated empire
employment
will find
for ten times their
present numbers; these are the loaves and fishes for which they hunger. They
w
ill
probably find
it
suited to their habits,
if
not to the habits of the people.
.
.
.
Luther Martin: Speech before the
Maryland
(November .
.
.
It
was the
states as states,
by
29, 1787)
their representatives in Congress, that
formed the Articles of Confederation; legislatures,
who
was the
it
and
ratified those Articles;
provided that the states as states (that to
legislature
is,
by
it
states as states,
by
was there established and
their legislatures) should agree
any alterations that should hereafter be proposed
in the federal
govern-
ment, before they should be binding: and any alterations agreed to other
manner cannot
to each other
release the states
by virtue of the
of the different states never Articles of Confederation alterations
objection to the
were formed or
were to be made
in that
government
the
any
I
in
in violation
people
which the
mode by w hich
— with the
Nor do
The
rights of their
believe the people,
would ever have expected or desired
been appealed to on the present occasion,
to have
of the rights of their
the favorers of the proposed Constitution, imagining
respective states,
if
they had
chance of forcing
a better
manner
ratified, or to
respective states they wished not to interfere. in their individual capacity,
in
from the obligation they are under
original Articles of Confederation.
made any
their
it
to be adopted
by
a
hasty appeal to
the people at large (w ho could not be so good judges of the dangerous
consequence), had not insisted upon this mode. the least interfere
because,
w ith
when once
the principle that
all
Nor do
power originates from the people;
the people have exercised their
and forming themselves into
a state
these positions in
government,
it
power
in establishing
never devolves back to
2
We Hold These Truths
10
them; nor have they
a right to
events take place as will
And
it is
resume or again
amount
to exercise that
power
to a dissolution of their state
an established principle that
government does not dissolve the
such
government.
dissolution or alteration of a federal
a
state
until
governments which compose
it.
.
.
.
William Findley, Robert Whitehill, and John Smilie: “The Address and Reasons of Dissent of
the
Minority of
the State of Pennsylvania to the Constituents"
(December .
.
.
The powers
18,
of Congress under the
new
1787) Constitution are complete and
unlimited over the purse and the sword and are perfectly independent of and ,
supreme over the is
state
Bv
entirely destroyed.
command
governments, whose intervention virtue of their
power of
in these great points
may They may
taxation, Congress
the whole or any part of the property of the people.
impose what imposts upon commerce, thev mav impose what land poll taxes, excises, duties
other article that they
on
may
all
taxes,
written instruments and duties on every
judge proper; in short, every species of taxation,
whether of an external or internal nature,
is
comprised
in Article
I,
Section
8, viz.:
The Congress
shall
have power to lay and collect taxes, duties, imposts,
and excises, to pay the debts, and provide
for the
common
defense and
general welfare of the United States.
As
there
is
the Congress
demolish the
The that
by
no one
powers vested
The to
in
.
.
.
Congress are also so various and extensive
may be extended to every case, and thus absorb and when we consider the decisive influence that a
would have over the
hesitate to
pronounce
that this
civil polity
President
is
to
of the several states,
power, unaided by the
effect a consolidation of the states
make
exist.
ingenuity they
general judiciary
would
every source of revenue, and thus indirectly
governments, for without funds they could not
state
the state judiciaries,
do not
of taxation reserved to the state governments,
may monopolize
judicial legal
article
we
legislative,
under one government.
.
.
have the control over the enacting of laws, so
.
far as
the concurrence of two-thirds of the representatives and senators
present necessarv,
if
he should object to the laws.
Thus it appears that the liberties, happiness, interests, and great concerns of the w hole United States may be dependent upon the integrity, virtue,
Fhe Federalist and Anti-Federalist Papers
wisdom, and knowledge of
25 or 26
men.
2
How
i
inadequate and unsafe
i
a
Inadequate because the sense and views of 3,000,000 or
representation!
4,000,000 people, diffused over so extensive
a territory,
comprising such
various climates, products, habits, interests, and opinions, cannot be collected in so small a body; and, besides, ot the people
even
proportion to
in
its
not
it is
and equal representation
a fair
number,
for the smallest state has as
much weight in the Senate as the largest; and from the smallness of the number to be chosen for both branches of the legislature, and from the mode of election and appointment, which is under the control of Congress, and from the nature of the thing, men of the most elevated rank in life will alone be chosen. The other orders in the society, such as farmers, traders, and mechanics, who all ought to have a competent number of their bestinformed men in the legislature, shall be totally unrepresented. The President General is dangerously connected with the Senate; his coincidence with the views of the ruling junto in that body is made essential .
to his
weight and importance
independency and puritv
in the
government, w hich
in the executive
.
.
will destroy
all
department; and having the power
may screen from made on the liberties
of pardoning without the concurrence of a council, he
punishment the most treasonable attempts
may
that
be
of the people w'hen instigated by his coadjutors in the Senate. Instead of this
dangerous and improper mixture of the executive with the
and
judicial, the
the President, for
w
supreme executive powers ought
ith a
small independent council
to
made
legislative
have been placed
personally responsible
every appointment to office or other act by having their opinions
corded; and that without the concurrence of the majority of the this council, the
in
re-
quorum
President should not be capable of taking any step.
.
.
of .
Melancton Smith:
An
address to the people of the state of necessity of
making amendments
New
to the
York showing the Constitution
(1788)
It
is
agreed, the plan
is
defective; that
some of
the powers granted are
dangerous; others not well defined; and amendments are necessary. then, not
amend
it?
Why
even the apprehension of people; it
it is
not remove the cause of danger and, it?
The
instrument
is
if
Why,
possible,
yet in the hands of the
not signed, sealed, and delivered, and they have power to give
any form they please.
2
I
W e Hold These Truths
2
But
contended
is
it
— adopt
and then amend
first
it
amend and then adopt it? Most certainly the more consistent with our ideas of prudence in If
men were
it
would be highly absurd
stipulations
about entering into
which
in
them
Why
ask:
not
of proceeding
the ordinary concerns of
to sign
and
is
life.
an instrument containing
seal
are contrary to their interests
ations agreeable to their desire.
mode
I
contract respecting their private concerns,
a
expectation that the parties, after
its .
.
execution,
and wishes, under the
would agree
to
make
alter-
.
Brutus, No.
Anonymous J the
latter
it.
1
1
essay in J
New -York Journal and
Weekly Register
(January 31, 1788) .
.
.
The
judicial
power
will operate to effect, in the
and imperceptible manner, what
silent
Constitution:
1
evidently the tendency of the
mean, an entire subversion of the
powers of the individual
judicial
is
Court on any question
states.
may
that
arise
most certain but yet
legislative, executive,
and
Every adjudication of the Supreme
upon the nature and extent of the
general government will affect the limits of the state jurisdiction. In pro-
portion as the former enlarge the exercise of their powers will that of the latter
be restricted.
T hat the judicial power of the United States will lean strongly
in
favor
of the general government, and will give such an explanation to the Constitution as will favor a variety
an extension of
of considerations.
.
.
its
jurisdiction,
is
very evident from
.
John Mercer: To
the
members of
the conventions of
New
York and Virginia
(1788) .
.
.
We
are persuaded that the people of so large a continent, so different
in interests, so distinct in habits,
by themselves or practicable.
By
equally so; for
cannot
their representatives.
their representatives, if
in all cases legislate in
Bv it
themselves,
will
is
obviously im-
be found, on investigation,
these representatives are to pursue the general interest
without constitutional checks and restraints, sacrifice
it
one body
it
must be done by
a
mutual
of the interests, wishes, and prejudices of the parts they represent
and Anti-Federalist Papers
1'he Federalist
and then they cannot be
2
»
3
said to represent those parts, but to misrepresent
them. Besides, as their constituents cannot judge of their conduct bv their
own
sense of what
in this
view screen
do not
see
is
right
and proper, and
can always
as a representative
we
abuse of trust under the cloak of compromise,
his
what check can remain
in the
hands of the constituents
—
for
they cannot know how far the compromise was necessary and the representative wrong.
.
.
.
George Mason: Speech to the Virginia ratifying convention
(1788)
Mr. Chairman, whether the Constitution be good or bad, clearly discovers that eration.
I
mean
ment laving
that clause
direct taxes.
taxes does, of
itself,
national
is a
it
the present clause
government and no longer
w hich gives the The assumption
first
hint of the general govern-
of this power of laving direct
change the confederation of the
entirely
confed-
a
states into
one
consolidated government. This power, being at discretion, unconfined and
without any kind of control, must carry everything before of converting what was formerly' a confederation to
ment
is
totally subversive of every principle
a
it.
The
very idea
consolidated govern-
which has hitherto governed
us.
This power
is
calculated to annihilate totally the state governments. Will
the people of this great different
community submit
and distinct powers? Will they suffer themselves
harassed? These
two concurrent powers cannot
will destroy the other: the general
way
w ill
suit so extensive a
to the former. Is
it
to be
doubly
to be
exist long together; the
government being paramount
everv respect more powerful than the state governments, the give
by two
to be individually taxed
to
one
and
latter
in
must
supposed that one national government
countrv, embracing so
many
climates and containing
inhabitants so verv different in manners, habits, and customs?
Patrick
.
.
.
Henry:
Speech to the Virginia ratifying convention
(1788) .
.
.
And
composed
here
I
a part
would make
this inquiry of those
of the late federal Convention.
I
worthy characters who
am
sure they were fully
2
1
We Hold These Truths
4
impressed with the necessity of forming instead of a confederation. T hat this
monstrably
clear;
very striking.
and the danger of such
— What
give
me
My
political curiosity, exclusive of
leave to
demand
me
“We, the people,”
to ask
must be one
the states. frugality?
.
.
If,
had they
right
mv
instead of
“We,
If the states
Will this
to say,
sir,
“We, the people”?
to speak the language of
be not the agents of this compact,
government of the people of
new system promote manufactures,
all
industry, and
instead of this, your hopes and designs will be disappointed, a great deal,
and hazard indefinitely more,
looms and wheels go to work bv the consequence, produce these things,
it
w
it
act of ill
on
this point.
I
adoption?
If
it
W
it
will
it.
I
am
your
ill
will,
consequently produce
cannot conceive that
cannot confide
for nothing. Will
your burdens?
lessen
and enable you to pay your debts. Gentlemen must prove infidel,
mind,
the states”? States are the characteristics
enhance the value of your lands? Will
an
my
to
is,
anxious solicitude for the public
great, consolidated, national
.
you relinquish it
government
— Who authorized them
and the soul of a confederation. it
a
de-
is
have the highest veneration for those gentlemen; but,
1
welfare, leads
consolidated government
a
is
consolidated government
a great
in
its
reform
a
a skeptic,
have these happy
and allegations.
The
consequences.
I
attend us
extravagance and want of industry, and can only be removed
lie in
in assertions
by assiduity and economy. Perhaps we things
w
be told by gentlemen that these
happen because the administration
ill
placed in the hands of the few studiously careful than
With
shall
we
who
will
is
to
be taken from us and
pay greater attention, and be more
can be supposed to be.
respect to the economical operation of the
new government,
only remark that the national expenses will be increased; will
approach
illiberalitv I
might
it
very nearly.
1
you of
a
if
1
will
not doubled,
it
might, without incurring the imputation of
or extravagance, sav that the expense w
tell
evils that
numerous standing army,
ill
be multiplied tenfold.
a great,
powerful navy,
a
long and rapacious train of officers and dependents, independent of the President, senators, and representatives, limitation.
w hen
I
whose compensations
are without
low are our debts to be discharged unless the taxes are increased,
the expenses of the government are so greatly augmented?
.
.
.
The
Federalist
and Anti-Federalist Papers
21 5
“Aristocritis”:
An anonymous
essay published in
satirical
The Government of Nature Delineated or
An
Exact Picture of the '
New
,
Federal Constitution
(1788)
.
.
.
Another privilege which the people possess
new Congress for,
of
all
will find
it
is
even
first
place,
—
explained and
commented on
new modeled
it;
all
and,
many
it
by
applies to the fact or not; and
cast in an action
w
in
and
learned judge opened up and explained
lastly, a
these learned discussions, an illiterate jury
must be governed
learned ani-
second, learned writers have
it;
(who have
right to think for themselves instead of judging for others)
whether
sense and most
third, learned lawyers tw isted, turned,
it;
this
law which passed through so
a
learned legislature, after
a
first,
madversions and criticisms have enacted
Vet after
jury;
absurd that twelve ignorant
is
it
plebeians should be constituted judges of
learned hands
bv
of, is trial
common
of
a gross violation
destructive to energy. In the
many
them
their interest to deprive
which the
which the people have w rested from government,
the powers
the most absurd;
is
it
present, and
at
it.
scarce a
must determine
their verdict the learned judge
passing sentence; and perhaps a learned gentleman be
ith
an insignificant cottager.
.
.
.
William Lenoir: Speech to the North Carolina ratifying convention
(.788)
.
.
.
The
people,
it
right of representation
is
not fairly and explicitly preserved to the
being easy to evade that privilege as provided
the terms of election being too long. at
the end of the year
their stead. It
nature
they
is
is
we
can make new
not so here.
If
corrupt, and that there
may embrace
If
our General Assembly be corrupt,
men
of them by sending others in
there be any reason to think that is a
disposition in
to take
aw ay the
men
to aspire to
rights of the people.
are chosen for six years, and two-thirds of them,
most extensive powers. They may enter into
may be
system, and
an opportunity, during their long continuance in
by means of their powers,
they
in this
continually reelected.
The
a
w
ith
human power, office,
The senators
the President, have
And man as
dangerous combination.
President
may be
as
good
a
2
W e Hold These Truths
16
anv
but he
in existence,
He may
but a man.
is
opportunity of forming plans dangerous to the community It
was urged here
power
that the President should have
and pardons. This power
He
be corrupt.
has an
at large.
.
.
.
to grant reprieves
necessary with proper restrictions. But the
is
may be at the head of a combination against the rights of the and mav reprieve or pardon the whole. It is answered to this that
President people,
he cannot pardon
case.
life It is
good, but
w ho
He
or property.
office
and future
power
has
too unlimited, in
may
What
of impeachment.
Only removal from
cases?
touch
in cases
my
to
the punishment in such
is
disqualification.
do away punishment
opinion.
mav
It
It
does not
every other
in
be exercised to the public
also be perverted to a different purpose.
Should we get those
we should be safe under anv constitution, men of a different disposition, we shall be in
our interest,
will attend to
or without any. If
we
send
danger. Let us give them only such powers as are necessary for the good of the community.
Thomas
.
.
.
Jefferson (neither Federalist nor Anti-Federalist):
Letter to Francis Hopkinson
,
March
government had begun
1789, after the
?,
to
new
function
You sav that have been dished up to you as an Anti-Federalist, and ask me if it be just. My opinion was never worthy enough of notice to merit I
you ask
citing; but, since
because
I
it,
is
the
else,
last
but with
it
to you.
my
never submitted the whole system of
any party of men whatever, anything
will tell
I
where
I
a free
not
for myself.
at all.
a
Federalist,
opinions to the creed of
philosophy,
and moral agent.
would not go there
I
in
was capable of thinking
degradation of a party,
in religion,
am
1
If
in politics, or in
Such an addiction
could not go to heaven
1
Therefore,
I
am
not of the
party of Federalists.
But
1
from the
am much first
farther
from
moment, of the
that of the Anti-Federalists.
great
mass of w hat
is
in the
1
approved,
new Constitution:
the consolidation ot the government; the organization into executive, legislative,
and judiciary; the subdivision of the
promise of interests between the great and
manner of voting
in
states; the qualified I
states
happy com-
by the different
by persons instead of
negative on laws given to the executive, which, however, it
associated with the judiciary also, as in
York; and the pow er of taxation.
A
little
the different houses; the voting
should have liked better
been limited.
legislative; the
little
reflection
I
thought
at first that
soon convinced
me
it
New
the latter might have
ought not to be.
The Federalist and Anti-Federalist Papers
What
disapproved from the
I
first
2
moment,
was the want of
also,
1
7
a bill
of rights to guard liberty against the legislative as well as the executive
branches of the government; that
is
to sav, to secure
freedom
in religion,
freedom of the press, freedom from monopolies, freedom from unlawful imprisonment, freedom from
by the laws of the
cases determinable
all
permanent
a
To
perpetual reeligibility of the President. adhere.
.
.
and
military, land.
I
a trial
by
jury, in
disapproved, also, the
these points of disapprobation
I
.
SELECTIONS EROM THE FEDERALIST Number .
.
.
2:
John Jay
Providence has been pleased to give
united people
—
this
one connected country to one
people descended from the same ancestors, speaking the
a
same language, professing the same
same principles
religion, attached to the
of government, very similar in their manners and customs, and
and
their joint counsels, arms,
efforts, fighting side
w
ho,
by
by side throughout
a
long and bloody war, have nobly established general liberty and independence.
This country and appears as
it
a
band of brethren, united
should never be
sovereignties.
.
people seem to have been
was the design of Providence,
if it
and convenient for ties,
this
.
split into a
.
.
collect
4:
to each other
move on uniform
and
unsocial, jealous, and alien
avail itself of the talents
principles of policy.
protect the several parts and
w hole, and
that of the whole.
It
and experience
Union they may be found.
It
It
can
can harmonise, assimilate, and
members, and extend the
and precautions to each. In the formation of
to the defence of
by the strongest
John Jay
of the ablest men, in whatever part of the
w ith
and
.
One government can
interest of the
for each other,
that an inheritance so proper
number of
Number .
made
benefit of
treaties,
it
its
foresight
will regard the
the particular interests of the parts as connected
can apply the resources and power of the whole
any particular
part,
and that more easily and expeditiously
than State governments or separate confederacies can possibly do, for want of concert and unity of system.
It
can place the militia under one plan of
2
1
We Hold These Truths
8
by putting
discipline, and, to the
Chief Magistrate,
their officers in a proper line of subordination
will, as
and thereby render them more
were, consolidate them into one corps,
it
efficient
than
if
three or four distinct independent companies.
Number .
.
.
A man
doubt
must be
gone
far
that, if these States
would have frequent and
would be
.
.
.
Alexander Hamilton
in
Utopian speculations
who
can seriously
should either be wholly disunited, or only united
in partial confederacies, the
want of motives
6:
divided into thirteen or into
subdivisions into which they might be thrown
To presume
violent contests with each other.
a
such contests as an argument against their existence,
for
to forget that
men
are ambitious, vindictive, and rapacious.
To
number of independent, unconnected sovereignties in the same neighbourhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated look for a continuation of
experience of ages.
.
.
harmony between
.
Number [It]
may
be concluded that
consisting of a small
government
common ot the
in
a
io:
James Madison
pure democracy, by which
number of
citizens,
who
itself;
mean
a
society
person, can admit of no cure for the mischiefs of faction.
a
communication and concert and there
is
felt
bv
a
A
majority
from the form of gov-
result
nothing to check the inducements to sacrifice
the weaker partv or an obnoxious individual. racies
1
assemble and administer the
passion or interest will, in almost every case, be
whole;
ernment
a
1
lence
is
it
that such
democ-
have ever been spectacles of turbulence and contention; have ever
been found incompatible with personal security or the rights of property;
and have
in general
their deaths.
been
T heoretic
as short in their lives as they
politicians,
who
have been violent
have patronised
this species of
ernment, have erroneously supposed that by reducing mankind to equality in their political rights, they would,
at
the
same time, be
a
in
gov-
perfect
perfectly
equalised and assimilated in their possessions, their opinions, and their passions.
A
republic,
by which
1
mean
a
government
in
which the scheme of
representation takes place, opens a different prospect, and promises the cure
The Federalist and Anti-Federalist Papers
which we
for
are seeking. Let us
pure democracy, and
which
the efficacy
Hence,
over
a small
—
Does the advantage
it.
.
.
is
it
varies
*9
from
the cure and
.
same advantage which
in controlling the effects of faction,
republic
which
in
comprehend both the nature of
must derive from the Union.
it
democracy,
a
shall
examine the points
clearly appears, that the
it
over
we
2
a republic has
enjoyed by
is
a large
enjoyed bv the Union over the States composing
consist in the substitution of representatives
whose
enlightened views and virtuous sentiments render them superior to local prejudices and to schemes of injustice? resentation of the
Union
dowments. Does
it
will
It
be denied that the rep-
will not
be most likelv to possess these requisite en-
by
consist in the greater security afforded
variety of parties, against the event of any one party being able to
and oppress the
the
Union
in the greater obstacles
secret
v
of the
Union
gives
it
Does
increase this security?
opposed
ishes of an unjust
to the concert
in fine, consist
it,
and accomplishment of the
and interested majority? Here, again, the extent
the most palpable advantage.
The influence of factious
may
leaders
kindle a flame within their particular
States, but will be unable to spread a general conflagration
A
other States.
outnumber
degree does the increased variety of parties
rest? In an equal
w ithin
comprised
a greater
religious sect
may
degenerate into
through the
a political faction in a
part of the Confederacy; but the variety of sects dispersed over the entire face of
source.
it
must secure the national councils against any danger from
A
rage for paper
money,
division of property, or for less apt to
of
it;
for an abolition of debts, for an equal
any other improper or wicked
pervade the w hole body of the Union than
in the
same proportion
as
such
a
malady
particular county or district, than an entire State.
Number .
.
.
Under
a
/
i:
is .
particular
a
more .
project, will be
likely to taint a
.
vigorous national government, the natural strength and re-
common
interest,
would
combinations of European jealousy to restrain our growth.
would even take away the motive impracticability of success. a
flourishing marine
necessity.
We
member
Alexander Hamilton
sources of the country, directed to a
and
that
An
1'his
all
the
situation
by inducing an
to such combinations,
active
baffle
commerce, an extensive navigation,
would then be the offspring of moral and physical
might defy the
little
arts of the little politicians to control or
vary the irresistible and unchangeable course of nature.
.
.
.
We Mold These Truths
220
Number ... In the is
place
first
is
it
Alexander Hamilton
14:
remembered
to be
that the general
government
not to be charged with the whole power of making and administering
laws.
Its
members
the
all
jurisdiction
is
limited to certain enumerated objects,
which concern
of the republic, but which are not to be attained bv the
separate provisions of anv. The subordinate governments, which can extend their care to
those other objects which can be separately provided for,
all
will retain their
due authority and
Were
activity.
proposed by the plan
it
of the Convention to abolish the governments of the particular States, adversaries
would have some ground
show
not be difficult to
that
if
for their objection;
A
second observation to be made
which we know
to
is
them
must be
left to
those
immediate object of the
to
add to them such other States
or in their neighbourhoods,
as
which we cannot
The arrangements that may be necessary
and fractions of our
for those angles
that the
is
be practicable; and
to be equally practicable.
frontier
to reinstate
union of the thirteen primitive States,
to secure the
own bosoms,
arise in their
doubt
would
proper jurisdiction.
federal Constitution
may
it
they were abolished the general government
would be compelled, by the principle of self-preservation, in their
though
its
which
territory
whom
lie
on our north-western
further discoveries and experience w
ill
render more equal to the task. Let the
it
be remarked,
Union
will
be
in the third place, that the intercourse
facilitated
be shortened, and kept
bv new improvements. Roads w
in better order;
accommodations
ill
throughout
everywhere
for travellers
w
ill
be multiplied and meliorated; an interior navigation on our eastern side will
be opened throughout, or nearly throughout, the whole extent of the thirteen States.
The communication between the Western and Atlantic
between different parts of each, w
ill
districts,
and
be rendered more and more easy by
those numerous canals with which the beneficence of nature has intersected
our country, and which
A
fourth and
State will, to
its
still
art finds
so
it
inducement
to
a frontier,
make some
general protection; so the States which heart of the Union, circulation of
its
greatest need of
its
lie at
and
connect and complete. is
and
w
will
ill
be
at
that as almost every
will thus find, in a regard
sacrifices for the sake of the
the greatest distance from the
and w hich, of course, may partake
benefits,
to foreign nations,
to
more important consideration
on one side or other, be
safety, an
little difficult
least of the
ordinary
the same time immediately contiguous
consequently stand, on particular occasions,
strength and resources.
.
.
.
in
The Federalist and Anti-Federalist Papers
Number .
.
.
21
23: Alexander Hamilton
Reasons have been already given to induce
governments
be prone to
will too naturally
which
the foundation of
a
supposition that the State
with that of the Union,
a rivalship
be the love of power; and that
will
between the federal head and one of
its
members
apt to unite with their local government.
advantage, the ambition of the
in
If,
a facility
to
forces,
them
hand, the libertv of the people would be
As
w
hich
left
addition to this
had better be than
to
it
would
make
may be
considered as
w hich they
enterprises upon, and
w horn thev
.
.
But
dangerous weapon of pow
attested, that the people are
amount
to, if
to nothing. It is a
rule
results
33: Alexander
said that the law
is
it
s
.
.
in
it
is
a truth,
always most
the possession of
.
It is
this, or
what would they
w ould amount
evident they
law, bv the very meaning of the term, includes supremacy.
w hich
those to
from every
whom
it is
number of political
conduct.
If a
the laws
w hich
the latter
may
must be the supreme regulator of
w hom they
enact, pursuant to the
are
treaty,
dependent on the good
which
is
their
societies enter into a larger political society,
powers intrusted
must necessarily be supreme over those
constitution,
the individuals of
prescribed are bound to observe. This
political association. If individuals enter into a state of
society, the laws of that society
its
it
of the Union are to be the supreme law of
thev were not to be supreme?
A
er,
Hamilton
what inference can be drawn from
the land. But
by
a
entertain the least suspicion.
Number .
the other
of things than
less safe in this state
danger w hen the means of injuring their rights are
those of
On
Union.
are least likely to be jealous. For
w hich the experience of ages has in
afford too strong a
those hands of which the people are most likely to be jealous
in
those of
in
immense
the national forces in the hands of the national government.
an army
far as
any contest
the people will be most
finally to subvert, the constitutional authority of the
in that
in
members should be stimulated by the separate
and independent possession of military temptation and too great
1
composed.
It
societies,
would otherwise be
faith of the parties,
and not
a
to
a
and
mere
government,
only another word for political power and supremacy. But
will not follow'
from
not pursuant to
its
this doctrine that acts of the larger society
constitutional powers, but
which
residuary authorities of the smaller societies, will
it
w hich
it
are
are invasions of the
become the supreme
law’
W e Hold These Truths
222
of the land. These will be merely acts of usurpation, and will deserve to
be treated as such.
.
.
.
Number I
myself
flatter
ticular States,
As
has been clearly
it
shown
in
mv
number that the parwould have coequal au-
last
under the proposed Constitution,
thority with the
imports.
Alexander Hamilton
Union
this leaves
community possess means
in the article
open
of revenue, except as to duties on
to the States far the greatest part of the resources
of the
there can be no colour for the assertion that they
not
as
abundant
ow n wants, independent of
all
Number .
.
.
as
could be desired for the supply of their
external control.
.
.
considered in relation to the foundation on which
which
its
.
39: James Madison
In order to ascertain the real character of the
the sources from
government,
it
is
On
in the
stitution
is
to
may be
ordinary powers are to be drawn; to the operation
government
examining the
it
to be established; to
of those powers; to the extent of them; and to the authority by
changes
would
first
w hich
future
are to be introduced.
relation,
it
appears, on one hand, that the Con-
be founded on the assent and
ratification of the
people of
America, given by deputies elected for the special purpose; but, on the other, that this assent
individuals
and
composing one
ratification
is
to be given
entire nation, but as
by the people, not
composing the
independent States to which they respectively belong.
and in
ratification of the several States, derived
each State,
it
to
— the authority of the people themselves. The
will
be
a federal
and not
a
,
but
forming one aggregate nation,
consideration, that
it
is
be the assent
act, therefore,
a federal act.
national act, as these terms are under-
stood by the objectors; the act of the people, as forming so States, not as
to result neither
is
many independent
obvious from
from the decision of
this single
from the unanimous assent of the
differing
no otherw
ise
from
It
must
several States that are parties to
their ordinary assent than in
its
of
a majority
the people of the Union, nor from that of a majority of the States. result
and
distinct
from the supreme authority
establishing the Constitution, will not be a national
That
It is
as
it,
being expressed,
not bv the legislative authority, but by that of the people themselves.
.
.
.
The Federalist and Anti-Federalist Papers
223
Number 45 James Madison :
.
.
in
The
.
the
adversaries to the plan of the Convention, instead of considering
first
place what degree of
power was absolutely necessary
purposes of the federal government, have exhausted themselves
for the
in a sec-
ondary inquiry into the possible consequences of the proposed degree of
power
to the
government of the particular
States. But
if
the Union, as has
been shown, be essential to the security of the people of America against foreign danger;
be essential to their security against contentions and
if it
wars among the different States;
if it
be essential to guard them against
those violent and oppressive factions which embitter the blessings of liberty,
and against those military establishments which must gradually poison very fountain;
in a
if,
people of America,
word, the Union be
essential to the happiness of the
not preposterous to urge as an objection to
is it
its
a
gov-
ernment, w ithout w hich the objects of the Union cannot be attained, that such
government may derogate from the importance of the governments
a
of the individual States? Was, then, the American Revolution effected,
w as
American Confederacy formed, was the precious blood of thousands
the
spilt,
and the hard-earned substance of millions lavished, not that the people
of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might
enjoy
a certain
extent of power, and be arrayed with certain dignities and
attributes of sovereignty?
We
have heard of the impious doctrine
World, that the people were made
same doctrine
the
in the
Old
for kings, not kings for the people. Is
to be revived in the
New
in
another shape
—
that the solid
to be sacrificed to the views of political institutions
happiness of the people
is
of a different form?
too early for politicians to presume on our forgetting
It is
that the public good, the real welfare of the great
supreme object
to
.
.
it
.
.
Were
the
may
be
fitted
for the attainment of this
.
Number .
is
be pursued; and that no form of government whatever
has any other value than as object.
body of the people,
it
46: James Madison
admitted that the federal government
position with the State governments to extend limits, the latter
would
such encroachments.
If
still
have the advantage
an act of
its
in
may
feel
an equal dis-
power beyond the due the
a particular State,
means of defeating
though unfriendly
to
We Hold These Truths
22 4
the national government, be generally popular in that State, and should not
too grossly violate the oaths of the state officers,
executed immediately
it is
and, of course, by means on the spot and depending on the State alone.
The
opposition of the federal government, or the interposition of federal
officers,
would but inflame the
and the
evil
zeal of
parties
all
could not be prevented or repaired,
on the side of the
difficulty.
federal
On
government be unpopular even
a
in particular States,
warrantable measure be
times be the case, the means of opposition to
The
and
to with reluctance
the other hand, should an unwarrantable measure of the
to be the case, or
fail
without the em-
if at all,
plovment of means which must always be resorted
States,
it
which would seldom so,
which may someand
are powerful
at
hand.
disquietude of the people; their repugnance and, perhaps, refusal to
co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the
embarrassments created bv
legislative devices,
would often be added on such occasions, would oppose, difficulties not to
be despised; would form,
any
in
in a large State,
which State,
very serious
impediments; and where the sentiments of several adjoining States happened to
be
in
unison, would present obstructions which the federal government
would hardly be willing
to encounter.
Number .
.
.
in the
.
.
51: Alexander Hamilton
But the great security against
powers
.
same department
a
gradual concentration of the several
consists in giving to those
who
administer
each department the necessarv constitutional means and personal motives to resist
encroachments of the others.
this, as in all
other cases, be
Ambition must be made
The provision for defence must
made commensurate
to counteract ambition.
must be connected with the constitutional reflection
on human nature
all
reflections
w hat
on human nature?
would be necessary.
If
rights of the place.
is
If
government
men were
in
first
a
no government
angels were to govern men, neither external nor
be administered by
you must
be
angels,
ment which in this:
may
but the greatest
on government would be necessary.
to
It
man
itself
internal controls is
interest of the
that such devices should be necessarv to control
the absues of government. But of
danger of attack.
to the
The
in
men
In
framing
a
govern-
over men, the great difficulty
lies
enable the government to control the governed; and
the next place oblige
it
to control itself.
.
.
.
The Federalist ami Anti-Federalist Tapers
Number .
.
As
.
22 5
64: John Jay
the States are equally represented in the Senate, and by
all
men
the most able and the most willing to promote the interests of their con-
they will
stituents,
have an equal degree of influence
all
that
in
body,
especially while they continue to be careful in appointing proper persons,
and to
insist
States
assume
on
their punctual attendance.
form and
a national
w hole be more and more an
the
must be
weak one indeed
a
if it
In proportion as the
the good of
a national character, so will
object of attention, and the
government
It
w hole members
should forget that the good of the
can only be promoted by advancing the good of each of the parts or
which compose the whole.
United
be
will not
power of the President and
in the
Senate to make any treaties by which they and their families and estates will not
be equally bound and affected w
of the community;
ith the rest
and, having no private interests distinct from that of the nation, they will
be under no temptation to neglect the
Number .
.
.
Nothing was more
latter.
.
.
.
68: Alexander Hamilton
to be desired than that every practicable obstacle
should be opposed to cabal, intrigue, and corruption.
These most deadly
adversaries of republican government might naturally have been expected to
make
their
approaches from more than one quarter, but chiefly from the
desire in foreign
How
powers
to gain an
improper ascendant
could they better gratify this than by raising
to the chief magistracy of the
against
all
danger of this sort w
They have
not
made
our councils.
creature of their
own
Union? But the Convention have guarded
ith the
most provident and judicious attention.
depend on any
the appointment of the President to
pre-existing bodies of
men, who might be tampered with beforehand
prostitute their votes; but they have referred
immediate
a
in
act of the people of
it
in the first instance to
America, to be exerted
in the
to
an
choice of
persons for the temporary and sole purpose of making the appointment.
And
thev have excluded from eligibility to this trust
situation
might be suspected of too great devotion
No senator,
who from
to the President in office.
representative, or other person holding a place of trust or profit
under the United States can be of the numbers of the
electors.
corrupting the body of the people, the immediate agents at least
those
all
enter
upon the
task free
from any
sinister bias.
Thus without
in the election .
.
.
w
ill
We Hold These Truths
226
Number .
.
.
If
be said that the
it
judges of their
own
yS: Alexander Hamilton
body
legislative
are themselves the constitutional
powers, and that the construction they put upon them
conclusive upon the other departments,
is
cannot be the natural presumption where particular provisions in the Constitution.
it
it is
It is
may
be answered that this
not to be collected from any not otherwise to be supposed
that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents.
to
suppose that the courts were designed
latter
is,
among
The interpretation of
the proper and peculiar province of the courts.
is
and must be regarded bv the judges,
in fact,
them
therefore belongs to
to ascertain
its
as a
meaning,
A
constitution
fundamental law.
as well as the
of any particular act proceeding from the legislative body.
happen
rational
other things, to keep the
within the limits assigned to their authority.
the laws
more
far
is
be an intermediate body between
to
the people and the legislature, in order,
It
If
It
meaning
there should
be an irreconcilable variance between the two, that which has
to
the superior obligation and validity ought, of course, to be preferred; or,
other words, the Constitution ought to be preferred to the statute, the
in
intention of the people to the intention of their agents.
Number .
.
.
I
.
they are contended tution, but tions to
.
Alexander Hamilton
for, are
would even be dangerous. They would contain various excep-
powers not granted; and, on
things shall not be
this
very account, would afford
done which there
no pow er
is
given by
that such a provision it
would
that
is
no power
be said that the liberty of the press
it
furnish, to
power.
which
not only unnecessary in the proposed Consti-
colourable pretext to claim more than were granted. For
should
.
affirm that bills of rights, in the sense and to the extent in
.
.
tfj:
.
w hich
restrictions
would confer
men
a
do?
shall not
Why, I
regulating power; but
a
a
declare that for instance,
be restrained
may be imposed?
disposed to usurp,
They might urge with
to
w hy
will not it
is
a
when
contend
evident that
plausible pretence for claiming
semblance of reason that the Consti-
tution ought not to be charged with the absurdity of providing against the
abuse ot an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a
power
The Federalist and Anti-Federalist Papers
proper regulations concerning
to prescribe
the national government.
.
.
Number .
.
.
227 it
was intended
to be vested in
.
85: Alexander Hamilton
Concessions on the part of the friends of the plan, that
has not a
it
claim to absolute perfection, have afforded matter of no small triumph to
“Why,” say they, “should we adopt an imperfect thing? Why amend it and make it perfect before it is irrevocably established?” No
enemies.
its
not
advocate of the measure can be found that the system,
whole,
a
though
good one;
is
it
may
which
answer,
I
a
not be perfect in every part,
is
Union
in the
next place, that
I
never expect to see
result of the deliberations of
perfect plan.
compound,
I
as well of the errors
and wisdom, of the individuals of are to
embrace thirteen
and union must terests
upon the
the extreme of im-
it
to the jeopardy of successive experiments,
man. The
which
should esteem
state of our national affairs,
a
a
is,
reasonable people can desire.
pursuit of
be
sentiment
such an one as promises every species of
prudence to prolong the precarious the
will not declare as his
the best that the present views and circumstances of
the country will permit; and security
who
as necessarily
and inclinations.
all
a
perfect
a
must necessarily
as of the
they are composed.
distinct States in a
be
the chimerical
work from imperfect
collective bodies
and prejudices
whom
in
and to expose
good sense
The compacts
common bond
compromise of
as
many
of amity
dissimilar in-
How can perfection spring from such materials?
.
.
.
APPENDIX C
Commentaries on the Constitution
from 1796
From the moment
it
became
1923
to
public, the merits and defects, the
weaknesses and strengths of the Constitution were debated. debates did not cease with the inauguration of the in 1789. In fact,
And
the
new government
the whole period until the end of the Civil
W ar
in
was one of frequently furious controversy over the Constitu-
1865
tion. Differences
of opinion were sharp over the existence of slaverv,
the powers of the three branches of government, fears of too strong a national
government, and the rights of the
states.
The random comments that follow are from a number of known Americans, ranging from George W ashington in the
well-
eigh-
teenth century to Calvin Coolidge in the twentieth.
Since the Civil War, the Constitution has taken ican
life as a
near-sacred text.
The Founding
its
place in
Amer-
Fathers are revered for
having contrived an instrument of government that has proved workable for 200 years with remarkably
today
is
less
government
little
tampering. Controversy
on the Constitution’s merits than on how it
established
work
I
for
2 2
8
all
]
citizens
and
to
make
interests.
the
Commentaries on
the Constitution
from r/96
to
229
1921
George Washington: Farewell Address (1796) ...
It is
important, likewise, that the habits of thinking
should inspire caution
in
those entrusted with
its
in a free
country
administration to confine
themselves within their respective constitutional spheres, avoiding exercise of the powers of one department to encroach
A
upon another. The
of encroachment tends to consolidate the powers of all the departments
spirit in
in the
one and thus to create, whatever the form of government,
despotism.
of that love of power and proneness to abuse
just estimate
predominates
a real
in the
human
heart
it
which
sufficient to satisfy us of the truth of
is
this position.
The
necessity of reciprocal checks in the exercise of political power,
dividing and distributing
it
into different depositories,
by
and constituting each
the guardian of the public weal against invasions by the others, has been
evinced by experiments ancient and modern, some of them in our country
and under our them.
institute
own If,
in
To
eyes.
the opinion of the people, the distribution or modi-
powers be
fication of the constitutional
amendment
corrected bv an nates.
.
.
preserve them must be as necessary as to
any particular wrong,
way which
the
in
in
let it
be
the Constitution desig-
.
Thomas
Jefferson:
Letter to Gideon Granger of Connecticut
(August .
.
.
The
1800)
13,
true theory of our Constitution
is
surely the wisest and best, that
the states are independent as to everything within themselves, and united as to
everything respecting foreign nations. Let the general government be
reduced to foreign concerns only, and those of
all
manage the
our
affairs
be disentangled from
other nations, except as to commerce, which the merchants will better the
more they
our general government a
let
very unexpensive one
servants. But,
I
are
may be reduced
—
a
manage
for themselves,
and
to a very simple organization,
and
left free
to
few plain duties
to be
repeat that this simple and economical
can never be secured contrary system.
I
if
the
New
performed by
few
mode of government
Kngland States continue
rejoice, therefore, in
a
to support the
every appearance of their returning
We Hold These Truths
230
which
to those principles
them.
.
.
I
had always imagined to be almost innate
in
.
Daniel Webster: Speech in the United States Senate
a reply
,
South Carolina on the
issue
to
Robert Y.
Hayne of
of nullification
(January 1830) .
.
.
T he people have preserved
forty years
with
and have seen
strongly attached to
undermined,
it.
nullified
here, as agents
will not
be
direct assault,
we, and those
if
and representatives of the people,
vigilantly discharge the
two
chosen Constitution, for
and renown grow
strength. T hey are
its
Overthrown by
it
own
their happiness, prosperity,
growth, and strengthen with
its
their
this,
it
now, generally,
cannot be; evaded,
who
shall
succeed us
shall conscientiously
and
great branches of our public trust, faithfully to
preserve and wisely to administer
it.
.
.
.
Zelotes Fuller, Universalist clergyman:
Washington
s
Birthday Address
(1830)
.
.
.
Wisely did the framers of the Constitution of our government,
defining with
unexampled accuracy the
rights of the citizens
after
and limiting
the authority of Congress, expressly prohibit the latter from interfering with the religious opinions of the people.
There has been no change
and we most sincerely pray that there never may
this particular,
as vet in
be.
Every
species of creeds and varieties of faith receive equal toleration and protection.
T he freedom of inquiry and the right of private judgment, the freedom of the press and of public speech are ileges
T his
still
our rich inheritance
which the laws of our common country guarantee as
is
it
should be. T hese privileges are
just
— thev are
priv-
to every citizen.
and unalienable; they
originate in perfect equity; they are the birthright of every individual, and
should not be infringed bv anyone; nor will they be, willingly or designedly,
by any
No
real friend to the
peace and happiness of humankind.
government under heaven affords such encouragement
America
to genius
and industry.
1
and enterprise, or promises such
lere, if a
man
rise to
eminence, he
as that of
rich
rewards to talent
rises
by merit and not
Commentaries on the Constitution from 1796
by
birth, nor yet
Bv
justice.
for the
by mammon. This
is
as
1927
ought to be
encouragement of the honest and ingenious I
lere, talent
want of gold
nor for the want of noble parentage, but
commands
all
—
this
the truly wise and candid,
government lere,
1
which
to
man
every
is
it
justly
to support
is
made
dignity,
its
the respectful attentions
however obscure the corner from whence and lawfully
generous
a
entitled.
pamper the pride of
labors for himself, and not to
royalty, not to support kingly
perfect
is
not frowned into
is
emanates, and receives that encouragement and support from
it
31
and due support
artist,
silence or trampled in the dust for the
of
2
the liberal government of our country, ample provision
given to every laudable undertaking.
is
it
to
pomp, luxury, and
dissipation!
Here, no
ghostly priest stalks forth, and bv virtue of prerogative seizes upon a tenth
of the hard earnings of the industrious poor, leaving them
and wretchedness; but they may apply their of themselves and families.
shop or
in
toils
to the conveniences
little all
and labors
of want
in the held or in the
whatever emplovment he may engage has the high satisfaction
to reflect that
it is
wholly
for the
he so please, and that he
if
He who
in a state
is
comfort and happiness of himself or family,
not bound by law to contribute to the support
of an artful, tyrannical, and corrupted priesthood.
.
.
.
John C. Calhoun: Address
to the people of the
United States
(1832)
We, then, hold it as unquestionable Crown of Great Britain, the people of the .
.
.
independent
states,
possessed of the
that
on the separation from the
several colonies
full right
became
free
and
of self-government; and that
no power can be rightfully exercised over them but by the consent and authority of their respective states, expressed or implied. as equallv
We
unquestionable that the Constitution of the United States
compact between the people of the formed and appointed
all
null
and void, and that
like
manner
it
created
was
joint agent of the several states;
transcending these powers, are simply and of themselves
that
states, in their
a
to execute, according to the provisions of the instru-
ment, the powers therein granted as the acts,
is
it
several states, constituting free, inde-
pendent, and sovereign communities; that the government
its
also hold
in case
of such infractions,
sovereign capacity, each acting for
as they
it
itself
is
the right of the
and
its
adopted the Constitution to judge thereof
citizens, in in
the
last
2
W e Hold
2
3
resort
and to adopt such measures
may be deemed limits. Such we
fit
These Truths
— not inconsistent with the compact —
to arrest the execution of the act within their respective
hold to be the right of the states
stitutional act of the
on proper occasions
as
in reference to
we deem
government; nor do
their
duty to exercise
and imperative than the right
less certain
an uncon-
itself is clear.
.
it
.
.
Andrew Jackson; Protest to the Senate on the occasion of
censure of the President
its
(April 15, 1834)
.
.
.
Were
the Congress to assume, with or without a legislative act, the
power of appointing
independently of the President, to take the
officers,
charge and custody of the public property contained naval arsenals, magazines, and storehouses,
would be regarded by
all
believed that such an act
is
it
and
in the military
power,
as a palpable usurpation of executive
subversive of the form as well as the fundamental principles of our govern-
ment. But where be
in the
is
the difference in principle
w hether
the public property
form of arms, munitions of war, and supplies, or
or banknotes?
None
can be perceived; none
is
in
gold and silver
believed to exist. Congress
cannot, therefore, take out of the hands of the Executive Department the
custody of the public property or money without an assumption of executive
power and
a
subversion of the
first
principles of the Constitution.
.
.
.
John Quincy Adams: Speech on the
fiftieth
anniversary
of George Washington's
first
inauguration
(April 30, 1839) .
.
.
The
Constitution of the United States
but the experience of
all
w as
former ages had show n
republican and democratic; that, of
all
human
govern-
ments, democracy was the most unstable, fluctuating, and shortlived; and it
was obvious
that
if
virtue
— the virtue of the people — was the foundation
of republican government, the stability and duration of the government
must depend upon the
stability
and duration of the virtue by which
it
is
sustained.
Now States,
the virtue
and was
which had been infused to give to
its
vital
into the Constitution of the
United
existence the stability and duration to
Commentaries on
which
it
the Constitution
from iyy6
iy 2
to
233
j
was destined, was no other than the concretion of those
principles
which had been
first
proclaimed
in
abstract
the Declaration of Independ-
ence; namely, the self-evident truths of the natural and unalienable rights
man, of the indefeasible constituent and dissolvent sovereignty of the
of
people, always subordinate to
sponsible to the
Supreme Ruler of
that sovereign, constituent,
of right and wrong, and always re-
a rule
the universe for the rightful exercise of
and dissolvent power.
This was the platform upon which the Constitution of the United States had been erected.
Its
virtues,
republican character consisted in
its
its
con-
formity to the principles proclaimed in the Declaration of Independence,
and
as its administration
must necessarily be always
varieties of public opinion;
and
irresistible necessity
its
was
stability
to
pliable to the fluctuating
and duration by
depend upon the
stability
the hearts and minds of the people of that virtue
overruling
a like
and duration
or, in other
,
words, of
those principles proclaimed in the Declaration of Independence and
bodied
in
the Constitution of the United States.
.
.
in
em-
.
William H. Seward: Speech in the United States Senate during the debate on Henry Clay's Compromise of
.
.
.
The
Constitution regulates our stewardship; the Constitution devotes
domain
the
But there
to union, to justice, to defense, to welfare, is
a
thority over the territory
1850
is
a
and
to liberty.
higher law than the Constitution which regulates our au-
domain and devotes
part
— no
it
to the
inconsiderable part
same noble purposes. The
— of the
common
mankind, bestowed upon them by the Creator of the universe. stewards and must so discharge our trust as to secure, tainable degree, their happiness.
.
.
We
are His
in the highest at-
.
Abraham
A
heritage of
Lincoln:
“Fragment on
Government
”
(July 1854)
The
legitimate object of
government
is
to
do
for a
whatever they need to have done, but cannot do
do
for themselves in their separate
and individual
community of people
at all,
or cannot so well
capacities. In
all
that the
people can individually do as well for themselves, government ought not to interfere.
2
We Hold These Truths
34
The
which the individuals of
desirable things
cannot well do, for themselves
fall
into
two
people cannot do, or
a
which have
classes: those
relation
wrongs, and those which have not. Each of these branch off into an
to
infinite variety
T he ors,
first
—
of subdivisions.
wrongs
that in relation to
— embraces
crimes, misdemean-
all
and non-performance of contracts. The other embraces
all
which,
in
nature and without wrong, requires combined action, as public roads
its
and highways, public schools,
charities,
the deceased, and the machinerv of
From
this
it
appears that
if all
pauperism, orphanage, estates of
government
men were
just,
itself
.
there
would be some,
still
though not so much, need of government.
Wisconsin State Legislature: Protest resolution against the fugitive slave
(March .
.
.
Resolved that the ,
States
but that, as in
itself;
common
having no
,
which now
all
final
judge of the extent of the powers
mode and measure
and construction contended
that the principle
for
rules in the councils of the nation, that the general
short of despotism, since the discretion of those
ment and not the the several states
Constitution
who
would be the measure of
which formed
it,
by the party government stop nothing
their
powers; that
that instrument, being sovereign
of those sovereignties, of
all
itself,
administer the govern-
dependent, have the unquestionable right to judge of a positive defiance
parties
of redress.
the exclusive judge of the extent of the powers delegated to
is
among
other cases of compact
judge, each party has an equal right to judge for
as well of infractions as of the
Resolved
19, 1859)
government formed by the Constitution of the United
was not made the exclusive or
delegated to
law
its
infraction;
and
in-
and that
unauthorized acts done or
attempted to be done under color of that instrument,
is
the rightful remedy.
James Russell Lowell: Essay
in 7 he Atlantic
Monthly
(February 1861) .
.
.
If
secession be
then the
a right,
with those possessing
it.
.
.
.
moment of
Within the
its
exercise
is
wholly optional
limits of the Constitution,
sovereignties cannot coexist; and vet what practical odds does state
becomes sovereign by simply declaring
it
make
two if a
herself so? T he legitimate
Commentaries on the Constitution from 1796
consequence of secession far as the general
who
own
her
lified
resist the
is
to
1(7
235
?
not that a state becomes sovereign but that, so
government
concerned, she has outlawed herself, nul-
is
become an aggregate of
existence as a state, and
execution of the laws.
.
Abraham
.
riotous
men
.
Lincoln:
First inaugural address
(March ... the in
I
4, 1861)
hold that, in contemplation of universal law and of the Constitution,
Union of these
states
is
the fundamental law of
perpetual. Perpetuity all
national governments.
no government proper ever had
a
termination. Continue to execute
Constitution, and the
destroy
Union
provision in
if
endure forever
rescind
it?
less it
than
all
— break
it,
who made
so to speak
— but does
Descending from these general
of the Union
safe to assert that
organic law for
its
own
—
being impossible to
it
in the
instrument
itself.
Union
is
as a contract, it?
it
One
party to a contract
not require
principles,
be peaceably
we find
all
to lawfully
the proposition
perpetual, confirmed by the history
itself.
The Union
is
much
older than the Constitution.
by the Articles of Association
in
1774.
It
the Declaration of Independence in 1776. faith of all the
in
it,
the parties
that in legal contemplation, the
it
not expressed,
the United States be not a government proper, but an association
of states in the nature of contract merely, can
unmade by mav violate
It is
if
the express provisions of our national
all
will
its
except by some action not provided for
it
Again,
implied,
is
It
was formed,
in fact,
was matured and continued by It
was further matured, and the
then thirteen states expressedly plighted and engaged, that
should be perpetual by the Articles of Confederation of 1778.
And
finally,
1787, one of the declared objects for ordaining and establishing the
Constitution, was
But
if
“
to
form a more
destruction of the
lawfully possible, the
having
lost the vital
perfect union."
Union by one
Union
is
less
by
or
a
part only of the states be
perfect than before the Constitution,
element of perpetuity.
.
.
.
2
We Hold These Truths
36
Calvin Coolidge:
Memorial Day
address
(1923)
.
.
.
The
people;
here
is
it
authority of law here is
is
not something which
the will of the people themselves.
not something which
is
The
the people themselves.
apart from the people;
right of the
something withheld from the people; selves.
Their sovereignty
relationship
between the
people entirely
justifies
is
The
is
imposed upon the
decision of the court it is
ownership of property here
it is
absolute and complete.
institutions of our
A
not
definition of the
government and the American
the assertion that: “All things were
is
is
the privilege of the people them-
and without them was not anything made that was made.”
American government
the judgment of
made by
It is
them
;
because the
the sole creation and possession of the people that
they have always cherished
it
and defended
it,
and always w
ill.
.
.
.
APPENDIX D
Judicial Interpretations
of the Constitution
The authority
of the
Supreme Court
to review legislative acts of
Congress and pronounce on their validity was not spelled out
However, the notion was not without precedent.
Constitution.
North Carolina court declared unconstitutional
1787, a
in the
In
a statute
passed by the state legislature concerning property confiscated from Loyalists during the
American Revolution.
In Bayard v. Singleton the
away property
court disallowed the right of the legislature to take (a right
embedded
without
in the state constitution)
In spite of this and other precedents, there
on the authority of the judiciary the President.
Thomas
mented: “There that
power
islative
to
is
branches.”
government must look stitutionality of
its
to review the acts of
word
in the
Congress or
was to
com-
Constitution which has given
more than
[the courts] It
settled position
Jefferson, in a letter of June 11, 1815,
not a
them
was no
a jury trial.
to the executive or leg-
Jefferson’s opinion that each branch of
its
own
authority to decide
upon the con-
actions.
Jefferson’s view did not prevail. In fact, twelve years before he
wrote
his letter,
Chief Justice John Marshall had handed
ruling in the most famous of
all
Supreme Court
stating the doctrine of judicial review. cision in
Marbury
If Jefferson’s
porters.
The
v.
Madison (1803)
is
[237]
a
decisions explicitly
portion of Marshall’s de-
reprinted below.
opinion did not prevail,
issue of judicial review
A
down
it
was not without
was one
its
sup-
that continued to
be
We Hold These Truths
8
2 3
debated for some decades. President to ignore the
removal. ident,
Court entirely when
When
him enforce
let
it
came
down
Marshall handed
Jackson replied,
Andrew Jackson went
to his policy of Indian
a ruling
opposed to the Pres-
Mr. Marshall has made
in effect:
so far as
his ruling;
it.
Since the Civil
War and
the triumph of federalism, however, the
challenges to the Court’s authority have diminished sharply. Pres-
bowed
idents and Congress have
to
its
rulings, although not
always
happily.
To cover the whole range of issues on which down
rulings
some of
would be impossible
here. T he decisions
quoted are
the major judicial statements about the powers of govern-
ment, citizenship, and individual
Marbury
the Court has handed
v.
statement
in
Madison Cohens
rights.
The
first
case quoted after
John Marshall’s remarkable and farsighted
is
Virginia (1821) about the nature of a national
v.
government and about the Constitution.
THE P O W E R S OF G O V E R N M E N T hese cases all
at
being definitive statements on
the powers of the federal government under the Constitution.
They a
make no pretense
few
are, rather,
samples of
specific issues
Madison
,
as well as
the
Supreme Court has
ruled on
under the authority conferred by Marbury
v.
under the sweeping statements on nationalism
made by John Marshall
in
Cohens
Marbury President John
how
v.
v.
Virginia.
Madison (1803)
Adams, on the eve of
his leaving office,
made
a
number of judicial appointments in order to pack the judiciary with members of his Federalist party. The Jefferson administration was reluctant to
let
the appointments be
filled.
William Marbury,
trying to force Secretary James Madison to give as justice of the peace,
sued
Chief Justice John Marshall,
in court. a
When
him
his
the case
Federalist, he
in
commission
came before
was faced with the
Judicial Interpretations of the Constitution
dilemma of deciding
in favor
of
by the new Republican
forced
Marbury only
to see his order
a right to
39
unen-
officeholders. Marshall’s ruling
Marbury had
lie decided that
brilliant,
2
was
the commission
under the provisions of the Judiciary Act of 1789. He then ruled that the act was unconstitutional, in so doing he established the doctrine of judicial review as case, almost as
much
prerogative of federal courts. This
a
as the Constitution itself,
became the Supreme
Court's charter for reviewing acts of Congress.
.
The
.
.
question
w hether an
the law of the land
is
a
act
repugnant to the Constitution can become
question deeply interesting to the United States
but, happily, not of an intricacy proportioned to
its
interest.
It
seems only
necessary to recognize certain principles, supposed to have been long and well established, to decide
it.
That the people have an original right to establish, for their future gov-
ernment, such principles
own
happiness
erected.
The
is
w hole American
the
deemed fundamental. And
supreme and can seldom
This original and
supreme
The
will organizes the
of the United States
legislature are defined
powers limited, and
writing,
if
these limits
be restrained?
The
unlimited powers
whom
is
to
It is a
either stop here or
by those departments.
is
is
written.
To what
that limitation
Or,
in
committed to to
government with limited and
abolished
those limits do not confine the persons on
if
if
a
acts prohibited
and
acts allowed are of equal
proposition too plain to be contested that the Constitution
.
.
it
or that the legislature
its
invalidity, bind the courts
other words, though
it
may
alter
.
an act of the legislature repugnant to the Constitution
effect?
purpose
between
the Constitution by an ordinary act.
notwithstanding
limits
The may
any time, be passed by those intended
controls any legislative act repugnant to
If
may
to
distinction
they are imposed, and
obligation.
at
It
and limited; and that those
what purpose
may,
government and assigns
of the latter description.
is
not be mistaken or forgotten, the Constitution are
from which they
they are designed to be permanent.
act,
establish certain limits not to be transcended
powers of the
been
principles, therefore, so
as the authority
different departments their respective powers.
The government
fabric has
very great exertion; nor can
a
is
to be frequentlv repeated.
it,
established are
proceed
w hich
the basis on
exercise of this original right
nor ought
it,
is
opinion, shall most conduce to their
as, in their
be not
is
void, does
and oblige them to give
law',
does
it
it, it
constitute a rule
W e Hold
240 as operative as
was
if it
was established
in
ruths
T
law? T his would be to overthrow
a
theory and would seem,
gross to be insisted on.
These
however, receive
shall,
It
at first a
in tact
what
view, an absurdity too
more
attentive consid-
eration. It is,
emphaticallv, the province and duty of the Judicial Department to
say what the law
T hose
is.
expound and
necessitv
who
apply the rule to particular cases must of
interpret that rule. If
two
law
s
must decide on the operation of each. So
other, the courts
opposition to the Constitution,
if
w
conflict
law be
if a
must cither decide
that case
conform-
ably to the law, disregarding the Constitution, or conformably to the
conflicting rules governs the case. T his
Con-
must determine w hich of these
stitution, disregarding the law, the court
is
in
both the law and the Constitution apply
to a particular case, so that the court
duty.
each
ith
is
of the very essence of judicial
then, the courts are to regard the Constitution, and the Constitution
If,
superior to any ordinary act of the legislature, the Constitution, and not
such ordinary
act,
who
Those, then, considered
must govern the case
which they both apply.
controvert the principle that the Constitution
court as
in
to
a
paramount law
is
to be
are reduced to the necessity of
maintaining that courts must close their eves on the Constitution and see only the law. T his doctrine would subvert the very foundation of tutions.
would declare
It
It
ritten consti-
that an act which, according to the principles
theorv of our government, obligatory.
w
all
would declare
is
entirely void,
is
yet, in practice, completely
that if the legislature shall
do w
hat
forbidden, such act, notwithstanding the express prohibition, effectual.
It
would be giving
otence,
w ith
narrow
limits.
be passed
That
it
at
the
to the legislature a practical
same breath w hich professes
It
is
and
and
to restrict their
is
expressly
is
in realitv
real
omnip-
pow ers within
prescribing limits and declaring that those limits
may
pleasure.
thus reduces to nothing what
we have deemed
the greatest im-
provement on
political institutions, a written constitution,
be sufficient
America, where written constitutions have been viewed with
so
much
in
would of
reverence, for rejecting the construction, but the peculiar expres-
sions of the Constitution of the United States furnish additional in favor
of
its
1'he judicial
arguments
rejection.
power of the United
under the Constitution. Could
power
itself
to sav that, in using
it,
it
States
is
extended to
all
be the intention of those
eases arising
who
gave this
the Constitution should not be looked into?
Judicial Interpretations of the Constitution
That
a case arising
is
what
arises?
it
some
too extravagant to be maintained. In
must be looked
stitution
part of
into
bv the judges. And
if
Cohens v. Viginia (182
This case arose when two state
law for selling tickets
men were
Con-
cases, then, the
they can open
obey?
are they forbidden to read or to
it
‘
under the Constitution should be decided without ex-
amining the instrument under which T his
24
.
.
at all,
it
.
1
arrested and convicted under
in a national lottery that
was permitted
under federal law. At issue before Chief Justice John Marshall was: (1)
the supremacy of federal over state law, and
Supreme Court
jurisdiction of the a state
and citizens of that
landmark opinions
ernment over the
The
state.
ruling
this
were
parties
of the federal gov-
states.
respect to those objects. This principle
To
the appellate
was one of Marshall’s
in establishing the authority
general government, though limited as to
there be anv w'ho
where the
in a case
The
(2)
deny
its
necessity,
is
a
its
objects,
supreme with
part of the Constitution; and
none can deny
supreme government, ample powers
possible to doubt the great purposes for
is
its
if
authority.
are confided; and
were
if it
which they were so confided, the
people of the United States have declared that they are given “in order to
form
a
more
perfect union, establish justice, insure domestic tranquillity,
provide for the
common
defense, promote the general welfare, and secure
the blessings of liberty to themselves and their posterity.”
pow ers confided are connected
to this
many
supreme government,
With the ample
for these interesting purposes,
express and important limitations on the sovereignty
of the states which are
made
for the
same purposes. The powers of the
Union, on the great subjects of war, peace, and commerce, and on many others, are in themselves limitations of the sovereignty of the states; but, in addition to these, the
instances,
sovereignty of the states
where the surrender can only operate
and where, perhaps, no other power servative
power
is
is
surrendered,
in
many
to the benefit of the people,
conferred on Congress than
a
con-
to maintain the principles established in the Constitution.
We Hold These Truths
242
The maintenance of these principles great duties of the government.
The
.
certainly
is
among
a
claim upon
a state a right
Court of the nation. However unimportant
his case to the
claim might be, however
community might be
the
little
the
.
Constitution gave to every person having
submit
to
.
purity
in their
decision, the framers of our Constitution thought
it
interested in
his its
necessary, for the pur-
poses of justice, to provide a tribunal as superior to influence as possible in
which
might be decided.
that claim
.
.
The
.
w
constituted government must be coextensive
be capable of deciding every
and laws.
stitution
A
constitution
is
.
.
judicial question
framed
for ages to
human
cannot always be tranquil.
may
it
defective in
It
is
institutions can
is
designed to approach
approach
it.
Its
course
exposed to storms and tempests, and they have not provided
if
its
own
which occur every day. Courts of
it,
its
so
w
ithin itself the
to be so
means of
laws against other dangers than those justice are the
reasonable to expect that
is
it
government ought
organization as not to contain
its
ployed; and
No
be destined to encounter.
securing the execution of
It is
the legislative, and must
nature will permit, with the means of self-preservation from the
far as its
ow n
well-
w hich grows out of the Con-
come, and
framers must be unwise statesmen indeed
its
ith
power of every
.
immortality as nearly as
perils
judicial
courts rather than on others.
.
.
a
means most usually em-
government should repose on
.
very true that whenever hostility to the existing system shall become
The
made the Constitution, and the people can unmake it. It is the creature of their w ill, and lives only by their will. But this supreme and irresistible power to make or to unmake universal,
will
it
be also
resides only in the
irresistible.
whole body of the people, not
them. The attempt of any of the parts to
be repelled by those to w
repelling In a
it.
.
.
people
hom
to exercise
it is
in
any subdivision of
usurpation and ought
the people have delegated their
power of
.
government so constituted,
is it
unreasonable that the judicial power
should be competent to give efficacy to the constitutional laws of the leg-
That department can decide on the
islature?
law of
a state if
States. Is
it
it
be repugnant to the Constitution or to
unreasonable that
judgment of
validity of the Constitution or
a state
it
a law
of the United
should also be empowered to decide on the
tribunal enforcing such unconstitutional law?
very unreasonable as to furnish
a justification for
controlling the
Is
it
so
words of
the Constitution?
We
think
it
is
not.
We
think that in a government, acknow ledgedly
Judicial Interpretations of the Constitution
supreme, with respect to objects of
vital
24 3 interest to the nation, there
is
nothing inconsistent with sound reason, nothing incompatible with the na-
making
ture of government, in
those objects and so far as
departments supreme, so
all its
necessary to their attainment.
is
power over those judgments of the
the appellate
far as respects
The
state tribunals
contravene the Constitution or laws of the United States
is,
exercise of
which may
we
believe,
essential to the attainment of those objects.
McCulloch
From
its
v.
Maryland (1819)
incorporation the states had been hostile to the
During the depression of 1818-1819
the United States.
legislatures laid taxes
on bank branches within
Bank of
several state
their jurisdiction,
with the intent of destroying the institution. James McCulloch, cashof the Baltimore branch, refused to pay the tax and was sued by
ier
The Maryland
the state of Maryland.
McCulloch took the case
Supreme Court. The
to the
Does Congress have the authority
Can
court upheld the tax, so issues were:
to charter a national bank; and,
the states tax branches of the bank. Chief Justice John Marshall
upheld the right of Congress
in his interpretation
of the “necessary
and proper” clause of the Constitution.
.
.
.
We
limited,
admit, as
and that
must admit,
all its
that the
powers of the government are
limits are not to be transcended.
sound construction of the Constitution must allow that discretion, with respect to the
are to be carried into execution,
high duties assigned to the end be legitimate,
means which
it,
let it
will enable that
manner most
think the
to the national legislature
means by which the powers
which
in the
we
But
body
to
it
confers
perform the
beneficial to the people. Let
be within the scope of the Constitution, and
which
are appropriate,
are plainly adapted to that end,
all
which
are not prohibited, but consist with the letter and spirit of the Constitution,
are constitutional.
The power
.
.
.
of Congress to create, and of course to continue, the bank,
was the subject of the preceding
part of this opinion; and
is
no longer
to
be considered as questionable.
That the power of taxing it
is
it
by the
states
may
too obvious to be denied. But taxation
is
be exercised so as to destroy
said to
be an absolute power
2
We Hold These Truths
44
which acknowledges no other
limits than those expressly prescribed in the
Constitution, and like sovereign to the discretion of those
who
power of every other
use
it.
.
.
description,
is,
it,
we apply
exercise their
and that the Constitution leaves them
right in the confidence that they will not abuse If
not that the states
may
directly resist a law of Congress but that they
acknowledged powers upon
trusted
.
The argument on the part of the State of Maryland
may
is
it.
.
.
.
the principle for which the State of Maryland contends to
we
the Constitution generally,
shall find
We
character of that instrument.
it
capable of changing totally the
shall find
it
capable of arresting
measures of the government, and of prostrating
it
all
pursuance thereof, to be supreme; but
supremacy,
in fact, to the states.
T he question
in truth, a
is,
the states to tax the
.
.
made
transfer the
.
question of supremacy; and
if
the right of
means employed by the general government be conceded,
shall
be the supreme law of the land
tion.
.
is
made
in
pursuance thereof,
empty and unmeaning declama-
.
The Court has bestowed on The
would
this principle
the declaration that the Constitution, and the laws
.
the
the foot of the states.
at
T he American people have declared their Constitution, and the laws in
this
result
is
a
this subject
its
most deliberate consideration.
conviction that the states have no power, by taxation or
otherwise, to retard, impede, burden, or in anv manner control the operations of the constitutional laws enacted
by Congress
the powers vested in the general government.
to carrv into execution
This
is,
we
think, the un-
avoidable consequence of that supremacy which the Constitution has declared.
We
are
unanimously of opinion
Maryland, imposing tutional
and void.
.
on the Bank of the United
a tax .
States,
legislature of is
unconsti-
.
Dartmouth College
New
bv the
that the law passed
Hampshire had,
in
v.
Woodward (1819)
1815, altered the terms of
Dartmouth
College’s charter of 1769 and changed the school into a university.
The college sued William of the school, to recover lor
Woodward. When
1
1.
its
Woodward, former original charter.
the case
came before
secretary-treasurer
The the
state court
found
Supreme Court,
Judicial Interpretations of the Constitution
245
however, the decision was reversed. Chief Justice Marshall ruled that corporation charters
were contracts protected by the contract
clause of the Constitution.
.
.
.
The
founders of the college contracted, not merely for the perpetual
application of the funds
which they gave
funds were given; they contracted, constitution of the corporation. as far as
human
to the objects for
also, to
secure that application by the
They contracted
for a system,
they had formed
w hich
should,
government of the
foresight can provide, retain forever the
literary institution
w hich those
the hands of persons approved
in
by
themselves.
This system
is
totally
The
changed.
charter of 1769 exists no longer.
reorganized; and reorganized in such
is
molded according
institution,
to the
w ill
the control of private literary men, into
w ill of government. This may be
the
particular,
and
may
a
manner
of a
faith
for the
Gibbons
The significance of
v.
w as
a literary
founders and placed under
its
advantage of
be for the advantage of literature
of which their property
convert
machine entirely subservient
not according to the will of the donors, and
on the
as to
It
is
given.
to
this college in
in general,
but
it
is
subversive of that contract, .
.
.
Ogden (1824)
this case lies in
Chief Justice Marshall’s broad
commerce -clause of the Constitution, giving Congress the right to regulate commerce w ith foreign nations and among the states. The case arose over the right of New' York to issue a license conferring a monopoly on boat transportation between New York and New- Jersey. Aaron Ogden had such a monopoly, but Thomas Gibbons had a license from the federal government to operate over the same route. interpretation of the
.
.
.
The
action
is
genius and character of the to be applied to
internal concerns
which
all
w hole government seem
it is
its
the external concerns of the nation and to those
affect the states generally; but not to those
are completely within a particular state,
and w ith which
to be that
which do not
which
affect other states,
not necessary to interfere for the purpose of executing
We Hold These Truths
246
some of the general powers of the government. The completely internal commerce of a state, then, may be considered as reserved for the state itself. But, in regulating commerce with foreign nations, the power of Congress does not stop
at
the jurisdictional lines of the several states.
very useless power
if it
could not pass those
United States with foreign nations
is
district has a right to participate in
our country state in the
has the
in
that of the it.
to regulate
exercised within a state.
it,
that
.
.
was one of
came before
if a
illegal.
may commence Congress may be
foreign voyage
power of
et al. v.
United States
935)
New
several cases concerning
the Court in the mid- 1930s.
pany sued the government, claiming were
this right. If Congress
.
(•
New
Deal legislation
The Schechter com-
that controls over
its
The
Court, with Chief Justice Charles Evans Hughes of Schechter and declared the
in favor
NRA
of his reasons was that the
unconstitutional.
had delegated
.
.
If
operations
York State by the National Recovery Administration
rendering the opinion, found
.
Every
power must be exercised whenever the
A.L.A. Schechter Poultry Corporation
within
of the
every direction pass through the interior of almost every
or terminate at a port within a state, then the
that
States.
a
streams which penetrate
Union, and furnish the means of exercising
power
would be
The commerce
whole United
The deep
subject exists. If it exists within the states,
This
lines.
It
One
legislative
the federal
powers
NRA
Act
to the executive branch.
government may determine the w ages and hours of em-
commerce of a state because of their relation to cost indirect effect upon interstate commerce, it would seem
ployees in the internal
and prices and
their
that a similar control
might be exerted over other elements of cost also
affecting prices, such as the
ods of doing business, that enter into cost intrastate business
etc. All the
would is
number of employees,
extent of the regulation of cost
meth-
processes of production and distribution
likewise be controlled.
in itself the
rents, advertising,
If
the cost of doing an
permitted object of federal control, the
would be
a
question of discretion and not
The government also makes the point that
efforts to enact state legislation
of power.
Judicial Interpretations of the Constitution
establishing high labor standards have been similar action
is
taken generally,
2 47
impeded by the
commerce w
belief that unless
be diverted from the states
ill
adopting such standards, and that this fear of diversion has led to demands for federal legislation
implication
is
on the subject of wages and hours. The apparent
that the federal authority
under the commerce clause should
be deemed to extend to the establishment of rules to govern wages and hours
in intrastate
trade and industry generally throughout the country,
thus overriding the authority of the states to deal with domestic problems
from labor conditions
arising It
commerce.
in their internal
not the province of the Court to consider the economic advantages
is
or disadvantages of such a centralized system. federal Constitution does not provide for
It is
sufficient to say that the
Our growth and development
it.
have called for wide use of the commerce power of the federal government in its control
over the expanded activities of interstate
protecting that restrain
commerce from burdens,
and monopolize
it.
interferences,
commerce and
in
and conspiracies to
But the authority of the federal government
may
not be pushed to such an extreme as to destroy the distinction, which the
commerce states”
commerce “among
clause itself establishes, between
and the internal concerns of
a state.
.
.
The Ashwander Rules
the several
.
(
1936 )
V
came before the Court. The Court upheld the right of the federal government to build dams over rivers that flow through more than one state. But more interesting than the decision itself was the concurring opinion of Associate In 1936, the case of Ashwander v. I
Justice Louis B. Brandeis. In
should never have
he proceeded to
come
it,
Brandeis contended that the case
before the Court in the
set forth the rules
first
by which the Court
place.
Then
selects cases
for review.
The Court of
its
has frequently called attention to the “great gravity and delicacy”
function in passing upon the validity of an act of Congress, and has
restricted exercise of this function
of federal courts
is
by
rigid insistence that the jurisdiction
limited to actual cases and controversies, and that they
have no power to give advisory opinions.
On
this
ground
it
has in recent
We Hold These Truths
248
years ordered the dismissal of several suits challenging the constitutionality of important acts of Congress.
The Court developed, within
upon
its
a
its
.
.
own governance
large part of
hey
all
confessedly
in the cases
under which
jurisdiction, a series of rules
decision. T 1
for
.
it
has avoided passing
upon
the constitutional questions pressed
are:
T he Court will not pass upon the constitutionality of legislation
.
for
it
in a
friendly, nonadversary proceeding, declining because to decide such ques-
and
tions “is legitimate only in the last resort,
mination of real, earnest, and
was the thought
vital
controversy between individuals.
by means of
that,
as a necessity in the deter-
a friendly suit, a
It
never
party beaten in the
legislature could transfer to the courts an inquirv as to the constitutionality
of the legislative act.”
.
.
.
T he Court will not “anticipate
2.
advance of the necessity of deciding
The Court
3. is
The Court
will not pass
upon
by the record,
erly presented
it.”
.
.
in
.
will not “formulate a rule of constitutional law broader than
required bv the precise facts to 4.
question of constitutional law
a
w hich
upon which the case may be disposed application. T hus,
is
of.
also present
.
some other ground
T his rule has found most varied
on
case can be decided
if a
.
.
although prop-
a constitutional question,
there
if
to be applied.”
is
it
two grounds
either of
— one
involving a constitutional question, the other a question of statutory construction or general law
— the Court
The Court will not pass upon one who fails to show that he is
5.
of
T he Court w
6.
instance of one
“When
7.
even
if a
that this
ill
w ho
a statute
injured bv
operation.
upon the
its
ill
has availed himself of
first
ascertain
its
benefits.
is
whether
is
raised, a
he defendants
v.
.
.
.
.
.
.
.
draw n it is
in
question, and
a cardinal principle
construction of the statute
by which the question may be avoided.”
United States
.
constitutionality of a statute at the
serious doubt of constitutionality
Court w
.
upon complaint
the validity of
the validity of an act of the Congress
fairly possible
I
not pass
will decide only the latter.
.
.
is
.
Curtiss-W right Export Corporation (1934)
in this case, officers in the
Curtiss-Wright Export
Corporation, were indicted for selling machine guns to Bolivia during its
war with Paraguay
right to sole
in 1934.
At
issue in the case
conduct of foreign policy and
was the President’s
his right to forbid inter-
Judicial Interpretations of the Constitution
ference in
by independent individuals and organizations. The
it
corporation had acted
May
gress of
249
contravention of a Joint Resolution of Con-
in
1934, an ^ presidential proclamation of the
28,
same
day, pursuant to the resolution. Associate Justice George Sutherland delivered the opinion of the Court, finding in favor of the President.
...
It is
important to hear
in
mind
that
we
are here dealing not alone with
an authority vested in the President by an exertion of legislative power, but
with such an authority plus the very delicate, plenary and exclusive power ot the President as the sole
international relations
—
a
organ of the federal government
power which does not require
in
the field of
as a basis for
its
exercise an act of Congress, but which, of course, like every other govern-
mental power, must be exercised sions of the Constitution.
It is
subordination to the applicable provi-
in
quite apparent that
our international relations, embarrassment
ment
—
is
legislation
to be avoided
which
and success
to he
is
within the international
made
field
for
if,
in the
— perhaps
maintenance of
serious embarrass-
our aims achieved, congressional
and inquiry
effective through negotiation
must often accord
to the President a degree
of discretion and freedom from statutory restriction which would not be
admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of in foreign countries,
and especially
confidential sources of information.
knowing the conditions which
prevail
He
has his
is
this true in
He
time of war.
has his agents in the form of dip-
lomatic, consular and other officials. Secrecy in respect of information gath-
ered by them
may
be highly necessary, and the premature disclosure of
productive of harmful results.
.
.
.
In the light of the foregoing observations,
should not be
condemning
in haste to
apply
delegation of legislative power. find
a general rule
legislation like that
overwhelming support
it
it
in the
principles
unbroken
evident that this Court
which
under review
The
is
will
have the effect of
as constituting
which
justify
an unlawful
such legislation
legislative practice
which has
prevailed almost from the inception of the national government to the present
day.
.
.
.
Youngstown Sheet and Tube Company
v.
Sawyer (1952)
During the Korean War, American steelworkers threatened on
strike.
When
to
go
the labor dispute continued unresolved, President
W e Hold
250 I
larrv
Truman
These Truths
ordered the Secretary of Commerce to seize the
steel
companies to keep them operating. The companies sued, and when the case
came before
Supreme Court
the
the ruling invalidated the
President’s order. T he Court reasoned that Congress had given
no
prior authorization for nationalizing the steel industry. Associate
Hugo
Justice
.
.
.
The
Black delivered the decision.
President’s power,
if
any, to issue the order must stem either from
an act of Congress or from the Constitution
There
itself.
is
no statute that
expressly authorizes the President to take possession of property as he did
Nor
here.
there any act of Congress to which our attention has been
is
directed from
which such
a
power can
we do
be implied. Indeed,
fairly
understand the Government to relv on statutory authorization for zure.
There
are
two
statutes
which do authorize the President
personal and real property under certain conditions.
ernment admits
that these conditions
order was not rooted
in either
.
.
this sei-
to take
both
However, the Gov-
were not met and
of the statutes.
not
that the President’s
.
T he President’s order does not direct that a congressional policy be ex-
ecuted in
a
manner prescribed by Congress
policy be executed in a
of the order
itself,
—
it
directs that a presidential
manner prescribed by the
like that
of
many
President.
The preamble
statutes, sets out reasons
why
the
President believes certain policies should be adopted, proclaims these policies as rules a
of conduct to be followed, and again,
government
sistent
official to
authorizes
promulgate additional rules and regulations con-
with the policy proclaimed and needed to carry that policy into
execution. T he
power of Congress
proclaimed bv the order
is
to adopt such public policies as those
beyond question.
private property for public use.
It
It
disputes, and fixing
rules designed to settle labor
wages and working conditions
economy. T he Constitution does not subject Congress
can authorize the taking of
can make laws regulating the relationships
between employers and employees, prescribing
It is
like a statute,
this
in certain fields
of our
law-making power of
to residential or military supervision or control.
said that other Presidents without congressional authority
have taken
possession of private business enterprises in order to settle labor disputes.
But even
if
this
be true, Congress has not thereby
exclusive consti-
make laws necessary and proper to carry out the powers Constitution “in the Government of the United States, or any
tutional authority to
vested by the
lost its
Department or Officer thereof.”
Judicial Interpretations of the Constitution
The Founders Congress alone
25
'
of this Nation entrusted the law-making power to the
both good and bad times.
in
the historical events, the fears of
behind their choice. Such
a
seizure order cannot stand.
It
would do no good
power and the hopes
for
to recall
freedom that
lay
review would but confirm our holding that this .
.
Watkins
.
v.
United States (1957)
This case arose during the heyday of congressional investigations
Communist subversion in the United States, commonly known as the McCarthy Era. The defendant had been convicted of contempt of Congress for refusing to answer some questions about persons of into
acquaintance and their past
his
Committee on Un-American any law
in this
may who
the past have been
in .
.
.
activities.
Activities that “I
me
country requires
have long since
movement.” At
He
to testify
Communist
said to the
I
louse
do not believe
that
about persons
who
members but removed themselves from the Communist party
.
.
.
was the extent of congressional
issue in the case
investigative power. Chief Justice Earl
Warren found
for the de-
fendant in his ruling.
.
.
.
We
ment.
start
with several basic premises on which there
The power
is
of the Congress to conduct investigations
the legislative process.
That power
broad.
is
It
general agreeis
inherent in
encompasses inquiries con-
cerning the administration of existing laws as well as proposed or possibly
needed
statutes.
political
system
It
It
includes surveys of defects in our social, economic or
for the
comprehends probes
purpose of enabling the Congress to remedy them. into departments of the Federal
expose corruption, inefficiency or waste. But broad as inquiry,
it
is
not unlimited. There
is
Government to is this power of
no general authority
to
expose the
private affairs of individuals without justification in terms of the functions
of the Congress. T his was freely conceded by the Solicitor General in his
argument of this
These
No
case.
Nor is
the Congress
a
law enforcement or
trial
agency.
are functions of the executive and judicial departments of government.
inquiry
is
an end
in itself;
it
legitimate task of the Congress.
must be
related to
and
in
furtherance of
a
Investigations conducted solely for the
We Hold These Truths
252
personal aggrandizement of the investigators or to “punish" those investi-
gated are indefensible.
Baker
v.
Carr (1962)
Rulings prior to this case had effectively removed the Supreme
Court from any decisions on states.
For
apportionment w
legislative
this reason several states
had managed
keep their
to
islatures in the control of rural districts, regardless of
of population to the their districts at
The
all,
cities.
as
Some
had refused
states
was the case w
ith
Tennessee
ithin the leg-
massive shifts
to reapportion
in this situation.
ruling in Baker v. Carr overturned previous decisions, citing the
mandate
constitutional
cases in law
power
that “the judicial
shall
extend to
all
and equity arising under the Constitution, the laws of
the United States, and treaties ruling also cited the equal
Amendment.
made under
their authority.”
I
he
protection clause of the Fourteenth
Associate Justice William Brennan delivered the opin-
ion of the Court.
.
.
.
These appellants seek
of their in
ow
n,
relief in
order to protect or vindicate an interest
and of those similarlv situated. Their constitutional claim
is,
substance, that the 1901 statute constitutes arbitrary and capricious state
action, offensive to the Fourteenth
Amendment
in its irrational
disregard
of the standard of apportionment prescribed bv the state’s constitution or of any standard, effecting
a
gross disproportion of representation to voting
population. T he injury which appellants assert disfavors the voters in the counties in
is
which they
that this classification
reside, placing
them
in a
position of constitutionally unjustifiable inequality vis-a-vis voters in irra-
A
tionally favored counties.
citizen’s right to a vote free of arbitrary
pairment by state action has been judicially recognized as
a right
im-
secured
by the Constitution, w hen such impairment resulted from dilution by talse tally
cincts
We the
... or by
... or by
a refusal to
a stuffing
a
count votes from arbitrarily selected pre-
of the ballot box.
.
.
.
hold that the claim pleaded here neither rests upon nor implicates
Guaranty Clause and
that
its
justiciability
is
therefore not foreclosed by
our decisions of cases involving that clause. T he District Court misinterpreted Colegrove
v. (ireen
and other decisions
ot this
Court on which
it
relied.
Judicial Interpretations of the Constitution
2
Appellants' claim that they are being denied equal protection
and
it
“discrimination
equal protection clause
shown, the
is
53
justiciable,
under the
is
sufficiently
is
not diminished by the fact that the discrimination
relates to political rights.”
.
.
right to relief
.
CITIZENSHIP The Supreme Court izenship in a
number
has ruled upon the nature and rights of
of cases.
Two
of the better
were the Slaughterhouse cases of 1873 an ^ Perez
The
issues in each case are quite different.
to the definition of citizenship as
Amendment. The latter issue
it
was
instances
Brownell in 1958.
v.
The
known
cit-
cases of 1873 re l ate
spelled out in the Fourteenth
Perez case deals with the loss of citizenship. This
has never been resolved.
The Slaughterhouse Cases (1873) 869 the Louisiana legislature granted a monopoly of the slaughterhouse business to one firm in New Orleans. Competitors sued, In
1
challenging the monopoly, on the grounds that the Fourteenth
Amendment
protected them.
The
state
protection of the laws and deprived
them of
businesses) without due process of law. in the Fifth
Amendment and had been
as well.
purpose was
Its
to set
had denied them the equal
Due process had been defined inserted into the Fourteenth
up procedural safeguards
When
viduals and others in maintaining their rights.
Amendment was drawn
their property (their
for indi-
the Fourteenth
up, the Radical Republicans in Congress
intended that the due process clause should protect corporations from state legislation, as well as protecting rights.
The
newly freed blacks
Court’s ruling here denied the
first
in their
intended purpose
and focused solely on the second and on the nature of citizenship. Associate Justice Samuel F. Miller delivered the ruling, one which
was not
[I]t
to stand very long as
had been held bv
this
Court,
it
related to businesses.
in the celebrated
few years before the outbreak of the Civil War, that
a
Dred Scott
case, only a
man of African descent,
2
Hold These Truths
VV e
54
whether
a slave or not,
was not and could not be
the United States. T his decision, while
it
a citizen of a state
or of
met the condemnation of some
of the ablest statesmen and constitutional lawyers of the country, had never
been overruled; and,
if it
was
to be accepted as a constitutional limitation
of the right of citizenship, then
made freemen were
still
the negro race
all
not only not citizens, but
coming so bv anything short of an amendment
To remove
who had
this difficulty primarily,
recently been
were incapable of be-
to the Constitution.
and to establish
a clear
and compre-
hensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a state, the ist clause
of the
ist
section
was framed:
“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the
United States and of the
state
wherein
they reside.”
we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States The
first
observation
without regard to their citizenship of
Dred Scott decision by making and subject to
all
a
particular state, and
overturns the
persons born within the United States
jurisdiction citizens of the
its
it
United States. That
its
main
purpose was to establish the citizenship of the negro can admit of no doubt.
The
phrase “subject to
its
jurisdiction”
was intended
to exclude
from
its
operation children of ministers, consuls and citizens or subjects of foreign
born within the United States.
states
T he next observation
is
counsel in the present case.
more important It is
in
view of the arguments of
that the distinction
the United States and citizenship of a state
is
between citizenship of and estab-
clearly recognized
lished.
Not only may
a
man be
a citizen
citizen of a state, but an important
into the latter.
but
is
it
1
le
of the United States without being
element
must reside within the
is
a
necessary to convert the former
state to
make him
only necessary that he should be born or naturalized
a citizen
in
of
it,
the United
States to be a citizen of the Union. It is
quite clear, then, that there
a citizenship
upon
is
a citizenship
of the United States and
of a state, which are distinct from each other and which depend
different characteristics or circumstances in the individual.
.
.
.
Judicial Interpretations of the Constitution
2
55
Perez v. Brownell (1958)
Can Congress
away anyone’s citizenship that it can do so in certain
take
gress has legislated
a foreign election or
among
for
any reason? ConVoting
instances.
in
holding office under another government are
the reasons Americans have, on rare occasion, lost their
cit-
izenship. In this case, the petitioner, Perez, had voted in another
country and had been deprived of
his citizenship
The Court
of the Nationality Act of 1940.
under the terms
agreed with Congress.
Chief Justice Earl Warren, however, dissented. Although the law still
stands, enforcement of
it
has
become
less stringent.
An
excerpt
of Warren’s dissent follows.
.
.
.
have
Citizenship rights.
is
man’s basic right for
Remove
it
nothing
is
this priceless possession
than the right to
less
and there remains
person, disgraced and degraded in the eyes of his countrymen. lawful claim to protection from any nation, and no nation
on
his behalf.
His verv existence
whose borders he happens presumably enjoy, and
at
at
is
to be.
may
a stateless
He
has no
assert rights
the sufferance of the state within
In this
country the expatriate would
most, only the limited rights and privileges of aliens,
the alien he might even be subject to deportation and thereby
like
deprived of the right to assert any rights. T his government was not established with
power
to decree this fate.
The people who created this government endow ed it with broad powers. They created a sovereign state with power to function as a sovereignty. But the citizens themselves are sovereign, and their citizenship
may be
the general powers of their government. Whatever
powers
to regulate the
diction, a
government
conduct and
affairs of all
of the people cannot take
persons
away
is
the scope of
w ithin
wanting
The government
is
to
do
so.
.
.
its
their citizenship
because one branch of that government can be said to have rational basis for
not subject to
a
its
juris-
simply
conceivably
.
without power to take citizenship away from
a native-
The Fourteenth Amendment recimmune from the exercise of governmental
born or lawfully naturalized American. ognizes that this priceless right
is
powers. If the Government determines that certain conduct by United States citizens should
to the
be prohibited because of anticipated injurious consequences
conduct of foreign
interest,
it
may w ithin
affairs or to
some other
legitimate governmental
the limits of the Constitution proscribe such activity
We Hold These Truths
256
and assess appropriate punishment. But every exercise of governmental
power must
find
its
source in the Constitution.
The power
to denationalize
not within the letter or the spirit of the powers with which our Govern-
is
ment was endowed. T he
may elect to renounce his citizenship, and he may be found to have abandoned his status
citizen
under some circumstances
by voluntarily performing his country.
The mere
acts that
compromise
his
undivided allegiance to
act of voting in a foreign election,
regard to the circumstances attending the participation,
show
voluntary abandonment of citizenship.
a
.
.
however, without is
not sufficient to
.
THE DESEGREGATION CASES After the Civil War, the white citizens of the South reimposed
upon blacks many of the elements of discrimination that had existed under slavery. These Black Codes and Jim Crow laws severely restricted the rights of blacks and officially segregated them from w hites in schools, public
In 1896, the
v.
Supreme Court
In 1954, the
facilities.
Brown
accommodations, and other instances. ruled in favor of “separate but equal”
Court overturned
Board of Education
of
that ruling in the
famous
Topeka decision.
Plessy v. Ferguson (1896)
A
Louisiana law of 1890 stipulated that railroads must provide
equal but separate accommodations for white and black passengers.
Homer w
A. Plessy,
hites-only car.
the case
Brown
went
a
mulatto, challenged the law
He w as
to the
delivered the
arrested, tried,
by riding
and convicted.
On
in a
appeal,
Supreme Court. Associate Justice Henry B. majority opinion, which held the Louisiana
segregation law constitutional. Associate Justice John Marshall Har-
w as the lone
lan
dissenter. Ironically, his dissent
majority fifty-eight years later in the
.
.
.
So
far,
Brown
then, as a conflict with the Fourteenth
the case reduces itself to the question
w hether
would become the
case.
Amendment
is
concerned,
the statute of Louisiana
is
a
reasonable regulation, and with respect to this there must necessarily be
a
large discretion
on the part of the
legislature. In
determining the question
Judicial Interpretations of the Constitution
of reasonableness
is
it
257
with reference to the established
at liberty to act
usages, customs and traditions of the people, and with a view to the pro-
motion of their comfort, and the preservation of the public peace and good
Gauged by
order.
this standard,
we cannot
or even requires the separation of the
two
sav that
a
trict
Congress requiring separate
w hich
Amendment
w hich does not seem
questioned, or the corresponding acts of state legislatures.
tions based
is
pow erless
upon physical
is
than the
sch