We Hold These Truths: Understanding Ideas and Ideals of Constitution 0020641303

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® “The

most

succinct, accessible publication about the Constitution.”

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

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I.

4 2.73'o29 0-02-064130-3 (pbk.)

at special

itle.

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For details contact:

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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