Our Charter of Liberty:
Essays on the U. S. Constitution
Michael L. Chadwick
© Copyright 1997 by Michael L. Chadwick. All rights reserved.
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Published in the United States by Liberty Park, USA Publishing Company
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Table of Contents
1. Natural Rights of Man–Their Divine Origin
2. Miracle at Philadelphia–The Constitutional Convention of 1787
3. A Reverent Look at the U.S. Constitution
4. James Madison–A Tribute to the Father of the Constitution
5. Workshop of Liberty–An Interview with James Madison
6. The Federal Constitution–An Interview with Alexis de Tocqueville
7. General Welfare Clause–Establishing a Limited Government
8. Freedom of Religion–An Essential Ingredient of Sound Government
9. Judicial Review–Upholding the Original Intent of the Framers
10. Treaty Making Power–Its Inherent Limitations
11. The Federalist–America's Classic Commentary on the Constitution
1. Natural Rights of Man–Their Divine Origin
"The Sacred Rights of Mankind," Alexander Hamilton declared in 1775, "are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the Hand of Divinity itself, and can never be erased or obscured by mortal power."
Most of the early colonists believed that man's basic rights, outlined in the law of nature, were gifts of God. The Revolutionary patriots were not alone in their thinking; many statesmen and philosophers through the ages have also embraced the concept of natural rights. Cicero, Locke, Burlamaqui, and Blackstone were but a few notable men whose works were widely read in America. Each of them maintained that the law of nature was the will of his Creator. Let us listen to a few of their statements.
Marcus Tullius Cicero, the Roman statesman, orator and Stoic philosopher (106-43 B.C.) outlined the origin of natural rights as follows:
"Of all these things about which learned men dispute there is none more important than clearly to understand that we are born for justice, and that right is founded not in opinion but in nature. There is indeed a true law, right reason, agreeing with nature and diffused among all, unchanging, everlasting, which calls to duty by commanding, deters from wrong by forbidding.... It is not allowable to alter this law nor to deviate from it. Nor can it be abrogated. Nor can we be released from this law either by the senate or by the people. Nor is any person required to explain or interpret it. Nor is it one law at Rome and another at Athens, one law today and another hereafter; but the same law, everlasting and unchangeable, will bind all nations and at all times; and there will be one common lord and ruler of all, even God, the framer and proposer of this law."
John Locke (1632-1704) was one of the most widely read philosophers in America. In Locke, the early patriots read of rights which man holds by reason of his being a creature of God. No just government may deprive him of them. In his Second Treatise of Government, written in 1690, Locke maintained that: "Though the legislative . . . be the supreme power in every commonwealth, yet . . . it is not . . . absolutely arbitrary over the lives and fortunes of the people. . . . Their power . . . is limited to the public good of society. It is a power that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects; the obligations of the law of Nature cease not in society, but only in many cases are drawn closer, and have, by human laws, known penalties annexed to them to enforce their observation, Thus the law of Nature stands as an eternal rule to all men, legislators as well as others, "The rules that they make for other men's actions, be conformable to the law of Nature–i.e., to the will of God, of which that is a declaration, and the fundamental law Nature being the preservation of mankind, no human sanction can be good or valid against it."
One of the most prominent European writers on the law of nature was Jean Jacque Burlamaqui, (1694-1748) counsellor of state and professor of nature and civil law at Geneva, Switzerland. His famous text, The Principles of Natural and Politic Law, was published in 1748. This volume was extremely popular among the early Americans in the latter half of the eighteenth century. One reason for its popularity was that it was translated into English in 1752 and used as a textbook.
Burlamaqui held that there were "rules which nature alone prescribes to man, in order to conduct him safely to the end, which every one has, and indeed ought to have, in view, namely, true and solid happiness, The system or assemblage of these rules considered as so many laws imposed by God on man, is generally distinguished by the name of Natural Law. This science includes the most important principles of morality, jurisprudence, and politics, that is, whatever is most interesting in respect as well to man as to society."
Another major treatise which was widely read and quoted in early America was Sir William Blackstone's Commentaries on the Laws of England (1765-1769), Blackstone (1732-1780) was a world renowned English jurist and legal historian, His definition of natural law was universally quoted by the Revolutionary patriots. He held:
"Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. . . . And consequently, as man depends absolutely upon his maker for everything, it is necessary that he should in all points conform to his maker's will
"This will of his maker is called the law of nature For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.
"Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe But as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept, These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian has reduced the whole doctrine of law...
"This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original."
It was a rarity for any young man during the colonial period to become a lawyer who had not familiarized himself with these immortal words. The colonists closely adhered to Blackstone's definition of natural law because they found it too satisfying and appropriate to ignore. His discussion of the rights of individuals was also extremely helpful to the Revolutionary patriots:
"This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endowed him with the faculty of free will. . . . Political, therefore, or civil liberty, which is that of a member of society, is no other than natural liberty, so far restrained by human laws (and no further as is necessary and expedient for the general advantage of the public."
It is evident that the writings of Cicero, Locke, Burlamaqui, Blackstone and others furnished the early Americans with much philosophical ammunition to use in their literature of protest which eventually resulted in the Declaration of Independence. As we read through colonial records, we find such statements as John Dickinson's message to the Committee of Correspondence in Barbados:
"Kings or parliaments could not give the rights essential to happiness, as you confess those invaded by the Stamp Act to be. We claim them from a higher source–from the King of Kings, and Lord of all the earth. They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power, without taking our lives In short, they are founded on the immutable maxims of reason and justice."
During the revolutionary period, the law of nature had four basic meanings. First, it was a combination of moral standards which governed personal conduct. There were clearly discernable rules of human conduct which were outlined in scripture and discernable through reason and experience.
"For the greatest of all laws that respect mankind," a colonist, writing under the pen name of Spartanus, in the New Hampshire Gazette, on June 15, 1776, said, "is to love our neighbors as ourselves, and do as we would be done by."
Happiness was the natural result of those individuals who obeyed the Golden Rule and misery the lot of those who rejected it. One of the duties of a political community which was discernable in the law of nature was the promotion of virtue and the eschewment of vice. Virtue was a corollary of natural law and an ingredient of good government.
Second, natural law also formed a system of justice which required the formation of laws in conformity to it. Laws which violated the community's inherited sense of right and wrong were to be rejected. This was in accordance with Blackstone who had written, "no human laws are of any validity if contrary to . . . the law of nature."
The chief duty of lawmakers then was to design and analyze legislation in light of accepted notions of justice. A law was considered good and mandated compliance if, in the words of James Wilson, it was "founded on the law of nature."
Third, natural law outlined the perimeters of political authority. Governments which went beyond the clear boundaries of natural law ended up either in a state of anarchy or tyranny. The colonists considered that constitutions should be earthly replicas of natural law in force. A violation of such constitutions were considered not only unconstitutional but unnatural.
The Massachusetts House of Representatives declared, "that in all free States the Constitution is fixed; and as the supreme Legislative derives its Power and Authority from the Constitution, it cannot over leap the Bounds of it without destroying its own Foundations." In other words, governments are obligated to respect natural law and fashion laws in support of it.
Fourth, natural law was considered by the colonists as the only source of natural rights. In 1765 the Massachusetts House of Representatives passed a resolution which declared that, "the inhabitants of the Province are unalienably entitled to those essential rights ('founded in the law of God and of Nature') in common with all men: and that no law of society can, consistent with the law of God and nature, divest them of those rights."
And America's premier founding document–the Declaration of Independence–in appealing to the Laws of Nature and of Nature's God, declared that, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...."
"Can the liberties of a nation be thought secure," Thomas Jefferson wrote in Notes on the State of Virginia in 1782, "when we have removed their own firm basis, a conviction in the minds of the people that these liberties are the gift of God?"
The doctrine of natural law was, therefore, a central part of revolutionary political thinking and formed the foundation of our governmental system. Continually we find the colonists using such adjectives as: natural, absolute, eternal, essential, unalienable, inherit, universal, unalterable, sacred, fundamental, divine, God-given, and hereditary, thereby giving the natural rights of mankind utmost significance.
It should be pointed out that natural rights are different from civil or constitutional rights. The former belong to man in a state of nature, while the latter become effective in a governmental system. Natural rights are brought into the political governmental system and they cannot be eliminated by it. That is why Jefferson could claim that every man is endowed by their Creator with certain unalienable Rights, and their origin lay in the state of nature. In fact, John Adams maintained that natural rights were "antecedent to all earthly government," and were incapable of surrender, being the gift of God to all mankind. In other words, government is limited by the law of nature and God. Therefore, natural law was to serve as a guide for enacting laws in society and as a check upon the human nature tendency to abuse power.
What specific rights did the colonists declare could not be taken away from them without taking their lives? In the voluminous sermons, pamphlets and documents of the revolutionary period, you find five natural rights singled out again and again as the legitimate heirs of all mankind–life, liberty, property, conscience and happiness,
First, right to life was beyond dispute and universally accepted. Blackstone had declared it "the immediate gift of God, a right inherent by nature in every individual." A resolution of the Town of Boston in 1772 declared that: "Among the Natural Rights of the Colonists are these: First, a Right to Life, Secondly to Liberty, thirdly to Property; together with the Right to support and defend them in the best manner they can–Those are evident Branches of, rather than deductions from the Duty of Self Preservation commonly called the first Law of Nature."
The early Americans frequently stated that the right to life was the first natural right. "The pretense of an absolute, irrestible, despotic power, existing in every government somewhere, is incompatible with the first principle of natural right," stated John Quincy Adams in an address on July 4, 1831. "Take for example the right to life. The moment an infant is born, it has a right to the life which it has received from the creator . . . no human being, no combination of human beings, has the power, I say not the physical, but the moral power, to take a life not so forfeited by commission of a crime, unless in self-defense, or by the laws of war. . , ."
Second, the natural right to liberty formed the central tenet of the other rights claimed by the colonists and granted by Providence. "The God who gave us life," Jefferson wrote in the Rights of British America in 1774, "gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them."
The revolutionary literature is full of praises to the grand concept of liberty. "Liberty," James Iredell wrote, was the "right of every human. . . ." It was the immortal Benjamin Franklin, the wise old sage of the revolutionary period, who forcefully declared that "every man . . . is, of common right, and by the laws of God, a freeman, and entitled to the free engagement of liberty."
An excellent definition of political liberty is found in the Report of Convention of Towns, Essex County, Massachusetts, rejecting the first proposed constitution for Massachusetts in 1778. "Political liberty is by some defined a liberty of doing whatever is not prohibited by law. Let it be thus defined; political liberty is the right every man in the state has, to do whatever is not prohibited by laws, To Which He has Given His Consent. This definition is in unison with the feelings of a free people."
Without freedom of choice, man cannot be free. There cannot be any merit in his actions if they are not voluntary or based upon a clear selection between good and evil, right and wrong, in light of conscience, and the personal moral code outlined in the scriptures.
"Liberty, as it is the honour and glory of a nation," wrote one colonist in 1765 to the New-York Gazette, "so also it is their pleasure and happiness. There is not perhaps one temporal blessing bestowed by the supreme being on mankind that is more agreeable when enjoyed; more difficult to be parted with; or more desirable when absent. A love for Liberty seems interwoven with our very nature; and we are always ready to pronounce a people happy or miserable in proportion as they are possessed or destitute of it. . . . There is perhaps nothing in this life more essential to our happiness. It is the state for which we are naturally calculated. It is what we all desire. The absence of it produces positive pain, as well as the presence of it positive happiness. It is the fountain of wealth, and of all real honors. For I cannot conceive of any true dignity a Slave can enjoy; for although he commands a thousand or ten thousand others, he is yet a Slave himself."
Third, the right to acquire, enjoy and dispose of private property was universally recognized in the literature of the revolutionary period, Americans "are entitled to life, liberty and property," declared the First Continental Congress in 1774. "The law of nature," wrote a colonist under the pen name of Sidney in the Norfolk Virginia Gazette, "being founded in reason and justice admits of property." Samuel Adams, while speaking to General Conway, stated, "It is acknowledged to be an unalterable law in nature, that a man should have the free use and sole disposal of the fruit of his honest industry, subject to no control."
The colonists accepted the premise that property must be secure or liberty cannot exist in a political community, All men, not just a select few, possessed inherent rights, among which was life and liberty along with the means of acquiring and possessing all types of property. "That personal freedom is the natural right of every man," Dr. Joseph Warren declared in an oration in Boston on March 5, 1775, "and that property, or an exclusive right to dispose of what he has honestly acquired by his own labor, necessarily arises therefrom, are truths which common sense has placed beyond the reach of contradiction."
According to revolutionary thought, the primary purpose of government was to secure men their unalienable rights. Lawmakers were to provide means for each individual to establish and maintain his legal right to property. During the first session of the U.S. Congress, while proposing the Bill of Rights as amendments to the Constitution, James Madison exclaimed that, "Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety."
The right to happiness was the fourth major natural right claimed by our Revolutionary forebears. "The Creator," James Iredell wrote, "surely wills the happiness of his Creatures." He "did not make men to be unhappy."
That Providence intended men to be happy was universally accepted in early America as the Declaration of Independence admirably attests. And the Massachusetts Bill of Rights of 1780 declared that, "the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality. . . ."
While it is true that upon entering society, men agree to submit to the legislative, executive and judicial power of the state, yet, they retain so much of their natural freedom as to have a right to happiness. The maintenance of a state of happiness is one of the very purposes of government and if it violates this objective it becomes unjust, unwise and unnatural. If a government is unduly hampering the happiness of the people, they have a right to make corrective changes, consistent with the law of nature.
The colonists firmly believed that the laws of God, as expressed in the law of nature, were designed to help men achieve a state of happiness, both individually and collectively.
James Wilson, a Philadelphia attorney, born in Scotland, and a graduate of the University of Edinburgh, held that happiness is the first law of every government. Writing in "Considerations on the Nature and Extent of the Legislative Authority of the British Parliament," published in 1774, he explained:
"All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.
"This rule is founded on the law of nature: it must control every political maxim: it must regulate the legislature itself. The people have a right to insist that this rule be observed; and are entitled to demand a moral security that the legislature will observe it. If they have not the first, they are slaves; if they have not the second, they are, every moment, exposed to slavery. For civil liberty is nothing else but natural liberty, divested of that part which constituted the independence of individuals, by the authority, which it confers on sovereigns, attended with a right of insisting upon their making a good use of their authority, and with a moral security that this right will have its effect."
Fifth, the right of conscience or the privilege of each individual to worship God in whatever manner they please was an essential, natural right of a people destined to establish full religious liberty. The Virginia Declaration of Rights, written in 1776, best expressed the sentiment of the early colonists: "Religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and it is the duty of all to practice Christian forebearance, love, and charity towards each other."
The Virginia Statute on Religious Liberty, written in 1786, was no less forceful in declaring that freedom of conscience was an unalienable right. It asserted: "No man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities . . . the rights hereby asserted are of the natural rights of mankind. . . ."
The men of the revolution continually placed tremendous emphasis upon the natural rights of life, liberty, property, happiness and conscience. They believed that these rights belonged to all mankind. It was these rights which were to form the basis of our free institutions. But before a constitution guaranteeing these and other rights could be written, it was necessary for the colonies to gain complete independence.
Political conditions in the years prior to 1776 were troublesome as the colonies continued struggling with the complexities of self-government. Opposition to England was mounting daily and the colonists needed to justify their defiance of the mother country. They found their defense in the ancient right of resistance to tyranny. What John Adams ridiculed as "the most mischievous of all doctrines, that of passive obedience and non-resistance" had no part in the colonial political thinking.
William Smith asserted: "The doctrine of absolute non-resistance has been fully exploded among every virtuous people. The freeborn soul revolts against it," And it was James Otis who boldly uttered: "He that would palm the doctrine of unlimited passive obedience upon mankind–is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country."
The major effort of the revolutionary patriots was to legalize the right of appealing to arms and this they did by detailing the rights of resistance in pamphlets, at the pulpit and in town meetings.
Resistance to oppression was considered a personal and a community right. Alexander Hamilton recalled to his countrymen in "A Full Vindictation" that "self-preservation is the first principle of our nature." Numerous other writers asserted the unalienability of the principle of self-defense.
As the movement toward independence gained momentum' the patriots devoted their energies to public resistance to arbitrary power, The Old and New Testaments, the law of nature and history each sanctioned popular resistance to oppressive authority and the main occasion for exercising this right was the breaching of the original contract, "overleaping the bounds of fundamental law."
The General Court of Massachusetts knitted together the contract and resistance in a proclamation on January 23, 1776: "As the happiness of the people is the sole end of government, so the consent of the people is the only foundation of it, in reason, morality, and the natural fitness of things. And therefore every act of government, every exercise of sovereignty, against, or without, the consent of the people, is injustice, usurpation, and tyranny. . . .
"When kings, ministers, governors, or legislators, therefore, instead of exercising the powers entrusted with them, according to the principles, forms and proportions stated by the constitution, and established by the original compact, prostitute those powers to the purposes of oppression–to subvert, in stead of supporting a free constitution;–to destroy, instead of preserving the lives, liberties and properties of the people;–they are no longer to be deemed magistrates vested with a sacred character, but become public enemies, and ought to be resisted."
A Georgetown, South Carolina, grand jury expressed a similar notion: "When a People . . . find that, by the baseness and corruption of their rulers, those laws which were intended as the guardians of their sacred and unalienable rights, are impiously perverted into instruments of oppression; and, in violation of every social compact, and the ties of common justice, every means is adopted by those whom they instituted to govern and protect them, to enslave and destroy them: human nature and the laws of God justify their employing those means for redress which self-preservation dictates."
Opposition to illegal authority was the central cause which motivated the colonists in their rhetorical and later armed resistance. Their emphasis on the broken contract with England justified them in assuming the power of government. After all, it was England and its agents who had broken the contract of government by exercising unlawful authority. This theme was outlined in a letter from Pacificus to Tranquillus in 1774 in the Pennsylvania Gazette: "I readily agree with you, Sir, that the crime of rebellion is of the deepest dye, and in every civil war, doubtless one side or the other are rebels; but if that be the only government pleasing to God or useful to man, which maintains the peace, safety and happiness of the people, and if no good reason can be assigned to induce any rational creature to become a member of that community which denies these blessings to its members, then I would ask, who are the rebels in any contest of the kind, the governors who abuse the trust reposed in them, and exercise the delegated power of the people to their hurt; or the governed, who attempt to protect themselves against the abuse of that power?
"If subjection is only due to a legal exertion of power, and if power ought only to be employed for the good of the community, then he alone is chargeable with rebellion, who uses the power he possesses to the hurt of the people, and not the people, who oppose every illegal exertion of that power."
The revolutionary colonists considered resistance to unlawful authority not only a right but a virtue. It was "the Christian and social duty of each Individual," the Provincial Congress reminded the people of Massachusetts in 1775. And Rev. John Allen attested: "It is no rebellion to oppose any King, ministry, or governor, that destroys by any violence or authority whatever, the rights of the people. Shall a man be deemed a rebel that supports his own rights? It is the first law of nature, and he must be a rebel to God, to the laws of nature, and his own conscience, who will not do it."
In brief, "the man who refuses to assert his right to liberty, property, and life, is guilty of the worst kind of rebellion, he commits high treason against God." And he breaks faith with future posterity: "Honor, justice, and humanity call upon us to hold, and to transmit to our posterity, that liberty which we received from our ancestors. It is not our duty to leave wealth to our children; but it is our duty to leave liberty to them. No infamy, iniquity, or cruelty, can exceed our own, if we, born and educated in a country of freedom, entitled to its blessings, and knowing their value, pusillanimously deserting the post assigned us by Divine Providence, surrender succeeding generations to a condition of wretchedness, from which no human efforts, in all probability, will be sufficient to extricate them."
The right of resistance to England's arbitrary power was, in effect, the colonist's last resort. The protection of their lives, liberties, and properties could be secured in no other way.
Once a sufficient proportion of the people favored the policy of independence, the revolutionary patriots turned to the theory of natural rights to justify and defend their actions. Chief Justice William Henry Drayton of South Carolina delivered an extended justification of the revolution and of the formation of the South Carolina Constitution in a charge to a grand jury held at Charleston during April and May, 1776.
He outlined that the Constitution of South Carolina arose according to the law of nature. In his charge the Chief Justice outlined to the court that the King had abdicated his authority and that South Carolina was a free and independent colony.
Chief Justice Drayton summarized the legal position of the revolutionary patriots with these words: "And thus, as I have on the foot of the best authorities made it evident, that George the Third, King of Great Britain, has endeavored to subvert the constitution of this country, by breaking the original contract between king and people; by the advice of wicked persons, has violated the fundamental laws, and has withdrawn himself, by withdrawing the constitutional benefits of the kingly office. and his protection out of this country: From such a result of injuries, from such a conjuncture of circumstances–the law of the land authorizes me to declare, and it is my duty boldly to declare the law, that George the Third, King of Great Britain, has abdicated the government, and that the throne is thereby vacant; that is, HE HAS NO AUTHORITY OVER US, AND WE OWE NO OBEDIENCE TO HIM."
Near the end of his charge he said: "The Almighty created America to be independent of Britain. . . . In a word, our piety and political safety are so blended, that to refuse our labors in this Divine work, is to refuse to be a great, a free, a pious and a happy people."
A few days later the Second Continental Congress passed a resolution advocating that the colonies establish separate governments. On May 15, 1776, the same body passed a preamble to the resolution declaring that all authority of the crown should be suppressed and all authority exempt by the people in the colonies.
The Second Continental Congress had officially abandoned its policy of attempting a redress of grievances and committed itself to the policy of independence. It was not until July 2nd, however, that Congress formally declared independence from England when it adopted a resolution introduced by Richard Henry Lee of Virginia on June 7th. And on July 4th, Congress adopted the "Declaration of Independence."
The Declaration served as the final justification for Congress in declaring independence. The first paragraph of the Declaration, which invokes the law of nature, reads:
"When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."
The Declaration contains two parts: first, a statement of political principles which justified the revolution against constituted authority; and second, a detailed list of grievances which had sorely plagued the colonies.
The second paragraph of the Declaration contains the general philosophy:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of 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 is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety 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 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, it is their duty, to throw off such Government, and to provide new Guards for their future security. Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world."
In the Declaration we find the commonly accepted principles of natural rights eloquently summarized. If the truths outlined in that immortal document were not self-evident, they were accepted by the overwhelming majority of the patriotic leaders of the colonies.
The doctrine of natural rights, including the right of resistance to tyranny, had been fervently delineated in hundreds of pamphlets and letters, and thousands of sermons and speeches. The colonial leaders such as James Otis, Samuel Adams, his cousin John Adams, John Dickinson, Richard Bland, Dr. Benjamin Church, James Wilson, Thomas Jefferson, Alexander Hamilton, Thomas Paine, Chief Justice William Henry Drayton, and a score of others, accepted that the laws of nature were ordained by God and were applicable not only in the state of nature, but a civil state too.
The laws of nature, ascertained through the use of reason are the basis for an appeal against the constituted government. And the revolutionary leaders made thorough use of them to justify their movement toward independence and self-government. They felt it was the duty of a just government to abide by laws of nature and when they did not, the people were obligated to seek refuge in the natural right of resistance. Revolt against the existing government was justified if the people were merely attempting to restore their natural rights of life, liberty, property, conscience and happiness. Since the laws of nature decree that governments founded upon the consent of the government, shall uphold and protect these rights from all kinds of encroachments, the revolutionary patriots were performing a noble act indeed.
During the revolution each of the new states with the exception of Rhode Island and Connecticut, framed and adopted written constitutions. There is explicit evidence in nearly every charter that the natural law philosophy formed the basic foundation of the political principles of government.
Virginia was the first state to adopt a written constitution and separate bill of rights. In fact, their bill of rights was adopted on June 12, 1776, and the body of the Constitution on June 29th–an act which demonstrated their concern for the natural rights of man.
The Virginia bill of rights served as a model for the rest of the new states and for every state since 1776. In the first three articles of the preamble there is a lucid statement of the natural law theory.
"1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
"2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.
"3. That government is, or ought to be instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal."
Once again we see the concept outlined that the inherent rights of man are just as natural and inalienable in a state of civil society as they are in the state of nature.
Article 15 of the Virginia Preamble also contains an important caveat: "That no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles
"A frequent recurrence to fundamental principles" could be found in the law of nature or in the doctrine of natural rights.
"The United States of America," John Adams wrote in his classic work entitled, Defense of the Constitution of Government of the United States of America, "have exhibited, perhaps, the first example of governments erected on the simple principles of nature; and if men are now sufficiently enlightened to disabuse themselves of artifice, imposture, hypocrisy, and superstition, they will consider this event an era in their history. . , . Thirteen governments thus founded on the natural authority of the people, , . . are destined to spread over the northern part of that whole quarter of the globe, are a great point gained in favor of the rights of mankind,"
Nearly all of the most influential pamphleteers, orators and statesmen of the revolutionary period firmly believed that the natural rights of man–of divine origin–were not only worth defending but worth dying for. And the blood of many patriots were spilt in this land in defense of them. It was not in vain, however. History vividly reveals that the Revolutionary War was just the beginning of something noble.
The Statue of Liberty in New York Harbor stands as a fitting tribute to the noble patriots who fought so bravely to uphold the natural rights of man and to open the way for the establishment of a free nation and free institutions.
As we enter the 21st century, we should reconsider the importance of the doctrine of natural rights. They were the philosophical base upon which the Constitution was built and upon which it stands today. A thorough knowledge, not only of the Constitution, but of natural law, is essential if we are to preserve our form of government in the challenging days ahead. We have a sacred duty to build upon the great legacy of freedom bequeathed to us by the revolutionary patriots and framers of our Constitution. And if we continue to uphold their works, we can expect the smiles and blessings of heaven to rest upon us, and upon this wonderful country.
2. Miracle at Philadelphia–The Constitutional Convention of 1787
The drafting and signing of the United States Constitution has been called a miracle, not by modern-day historians, but by those who were present when it was formulated. In a letter to Lafayette on February 7, 1788, just five months after the Constitution was signed, George Washington declared: "It appears to me, little short of a miracle, that the Delegates from so many different States (which States you know are also different from each other), in their manners, circumstances, and prejudices, should unite in forming a system of national government, so little liable to well founded objections."
Washington was not alone in his observation. James Madison also felt a miracle occurred at Philadelphia in 1787. Writing to Thomas Jefferson, just after the completion of the Federal Convention, he said it was "impossible to consider the degree of concord which ultimately prevailed as less than a miracle."
Let us take a journey back into time and visit the Federal Convention which produced such a miraculous document–our charter of liberty.
It is Monday, May 14, 1787, the opening day of the Convention. It is swelteringly hot and humid. Some of the elderly citizens claim it is the worst summer since 1750. Visitors to the city claim it is nearly impossible to breath the dry air. "At each inhaling of air, one worries about the next one" a Frenchman wrote home. "The slightest movement is painful."
At the Pennsylvania State House, often called Independence Hall, delegates named by the legislatures of twelve states (Rhode Island's delegates refused to come), are scheduled to meet in a convention. It is convened to discuss the state of the Union and the future of the Articles of Confederation,
Some of the most notable names in America are scheduled to attend the conference. George Washington, James Madison, Alexander Hamilton, Benjamin Franklin, John Rutledge, Charles Pinckney, Robert Morris, Gouverneur Morris, John Dickinson, George Wythe, George Mason, John Blair, Roger Sherman, Rufus King and Eldbridge Gerry.
With the exception of Benjamin Franklin, who is eighty-one, the Convention delegates are surprisingly young. Charles Pinckney is twenty-nine; Alexander Hamilton, thirty; Rufus King, thirty-two; Jonathan Dayton, twenty-six; Gouverneur Morris, thirty-five; James Madison, thirty-six; and John Adams, thirty-seven. Although the average age is only forty-three, John Adams has expressed, when asked to give a speech in Boston, that he was "too old to make declamations."
Delegates attending the Convention possess wide backgrounds and experiences in colonial and state government–nearly three-fourths of them are members or past members of the Continental Congress Several, while serving as members of their state legislatures, helped write their state constitutions during the first few years after independence was won. Twenty-one fought in the Revolutionary War; eight signed the Declaration of Independence; and seven have been state governors. You can see why Thomas Jefferson, who is away in Paris on official business currently, after learning the names of the delegates, called them "an assembly of demi-gods."
Those acquainted with the delegates report that they are anxious and apprehensive but keep those feelings mostly to themselves. Sessions of the Convention are to be conducted under the rules of secrecy to prevent any leaks to the newspapers. The Continental Congress, which met last February, authorized the Philadelphia Convention to meet "for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several Legislatures, such alterations and provisions, therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of Government, and the preservation of the Union."
The Articles, adopted in 1781, are the first official constitution of the thirteen states. Article III of the Confederation reads: "The said states hereby severally enter into a firm league of friendship with each other."
While the friendship of the thirteen colonies was sufficient to hold the colonies together during the war, friendship is not sufficient to hold together the loosely connected Union now. The Confederation has no power to collect taxes, defend the new states, pay the public debt or encourage trade and commerce.
Many statesmen throughout the country clearly recognize that the Articles of Confederation are inadequate and need strengthening. Washington, Madison and Hamilton are the most vocal about the need for reform of the Articles.
During the war, General Washington often complained of the lack of assistance given by Congress to his army. "Our sick and naked," he wrote, ". . . our unfortunate men in captivity. . . ." His troops lacked adequate food, proper clothing and shoes, gun powder, barracks, and medicines. His letters were filled with anger and indignation at Congress' refusal to help his army.
Since the war, he has continued to speak vigorously of the need to bestow greater powers upon the Congress. "For heavens sake, who are Congress?" he asked in 1783. "Are they not the creatures of the people, amenable to them for their conduct, and dependent from day to day, on their breath? What then can be the danger of giving them such powers as are adequate to the great ends of government, and to all the general purposes of the Confederation?"
Although independence has been won and a new nation born, the states are still struggling with the concepts of self-government. Washington is an astute individual and has an unusual grasp of politics. He feels greater cooperation among the states would solve a number of troublesome problems, And the way to strengthen the Union lies in strengthening Congress
"I do not conceive we can exist long as a nation without having lodged somewhere a power which will pervade the whole Union in as energetic a manner as the authority of the state governments extends over the several states."
Washington and his former aide-de-camp, Alexander Hamilton, see eye-to-eye on the future role Congress should play. Hamilton, a young lawyer, foreign-born and quick-witted, has continually urged Washington to play a leading role in the strengthening of the Union. While it is not well known, Hamilton has drafted many of the General's public statements on this subject.
Hamilton feels it is impossible to govern the nation through thirteen, highly independent and sovereign nations. "There is only one remedy," he said, "to call a Convention of all the states and address the major problems confronting the Union.
Since the end of the Revolutionary War, Hamilton has been continually writing letters, making speeches, and publishing newspaper articles outlining the need for a Convention to address the problems of commerce, trade, war debt, credit, paper money, and boundary disputes.
The quarrel over the navigation of the Potomac River between Maryland and Virginia resulted in commissioners being sent to Mt. Vernon in the spring of 1785 to discuss the subject. That commission was enlarged and met in September of 1786 at Annapolis. James Madison, from Virginia, and Alexander Hamilton, from New York, attended.
The Annapolis Convention sent a recommendation, written by Hamilton, to Congress urging all thirteen states appoint delegates to meet at Philadelphia "on the second of May next, to take into consideration the trade and commerce of the United States."
Madison, like Hamilton, has an acute understanding of the trade wars being waged between the states. "New Jersey," he wrote, "placed between Philadelphia and New York, was likened to a cask tapped at both ends; and North Carolina, between Virginia and South Carolina. Virginia laws declaring that vessels failing to pay duty in her ports could be seized by anyone and prosecuted 'one half to the use of the informer and the other half to the use of the commonwealth.' These laws were not aimed at England or Spain, but Pennsylvania, Massachusetts, and Maryland."
"Most of our political evils," Madison wrote recently, "may be traced to our commercial ones."
The Annapolis report not only mentioned trade and commerce hinted at the possible need to re-adjust the Articles of Confederation. Thus, the stage is set for one of the most revolutionary conventions ever held.
Seventy-four delegates have been named to the Convention; however, only fifty-five are expected to arrive in Philadelphia. John Adams is in London and, as noted earlier, Thomas Jefferson is in Paris negotiating a treaty with France and Holland, dealing with commerce and foreign loans. According to several newspapers in New York, Congress is consistently complaining about the Convention. The Congress is expected to have difficulty obtaining a quorum since several members will be in Philadelphia attending the Convention.
Delegates have been drifting slowly into Philadelphia. Rhode Island's delegates are obstantly absent in protest of a strong central government. Several delegates are reportedly absent due to a lack of money in state treasury's to pay their expenses.
After a quorum of seven states are achieved, the Convention plans to get down to the business at hand–the drafting of provisions which shall "render the federal Constitution adequate to the exigencies of Government, and the preservation of the Union."
The delegates are expecting to debate, argue, and compromise over such issues as ancient and modern systems of government, congressional representation, slavery, popular elections, states rights, frequent elections, the power of national executives, etc. No one knows how the Convention will finally resolve these issues.
Before we enter the Convention Hall and listen to some of the debates, let's take a look at the men who fashioned it.
James Madison is a member of the Continental Congress He rode on horseback from New York to the city of love, arriving on May 6th. It is typical of the young lawyer to arrive early and be thoroughly prepared for events such as the Convention. Last April he outlined in a letter to George Washington the most important points to be debated at the Convention.
Madison is small in stature, "no bigger," some have remarked, "than half a price of soap." Actually he is 5' 6" tall. He speaks softly and quite often has to be asked to speak louder in meetings.
Of all the delegates Madison is the most prepared intellectually. Reportedly, for the last six months he has been in isolation studying ancient and modern systems of government. He wrote to his close friend, Thomas Jefferson, in Paris and asked for books which might "throw light on the general constitution and droit public of the several confederacies which have existed." Over a hundred volumes arrived: thirty-seven volumes of the recently published Eychclopedie Methodique, dozens of volumes of political theory, history and law of nations. Jefferson also sent books written by Diderot, Necker, d-Alban, Burlanaqui and Voltaire. Madison, in return, sent special grafts of American trees for show in France–pecan nuts, cranberries and pippin apples. Madison did fail to ship the opossums and "pair of Virginia redbirds" that Jefferson requested, however.
The volumes sent from Paris have been carefully studied by Madison as he combed the government of antiquity for political insights. His study of ancient and modern confederacies have resulted in a classic document comparing governmental systems in a paper entitled, "Vices of Political System of the United States." Both papers will prove, no doubt, valuable in the debates at Philadelphia.
Reportedly, Madison is planning to keep detailed notes of the proceedings–an event which, no doubt, will tax his physical health. "I (plan to) chose a seat," Madison told a small group the other night, "in front of the presiding member, with the other members on my right and left hand. In this favorable position for hearing all that passed, I am able to note in terms legible and in abbreviations and marks intelligible to myself what is read from the Chair or spoken by the members; and loosing not a moment unnecessarily between the adjournment and reassembling of the Convention I will be able to write out my daily notes during the session or within a few finishing days after its close in the extent and form preserved in my own hand on my files. . . . I do not plan to be absent for a single day, nor more than a casual fraction of an hour in any day, so that I will not have lost a single speech, unless a very short one."
This remarkable feat will preserve for posterity the events of the grand convention. Without Madison's Notes on the Proceedings of the Federal Convention, future generations will not know what transpired during the eventful months ahead when the delegates meet behind closed doors.
With the exception of George Washington, the most famous Convention delegate is Benjamin Franklin. Franklin is President of Pennsylvania, and it is his duty to entertain the delegates. His new dining room seats twenty-four.
Two years ago, Franklin returned from Europe where he had spent nine years as an agent for various colonies. After independence had been declared he was sent to France to negotiate an alliance. Before he sailed, he lent the government four thousand pounds from his personal account. Franklin, nearly seventy at the time, was adored in Paris–his simple clothes, famous fur cap and unpowdered hair, made him quite a popular attraction.
John Adams, who was also in Paris with Franklin, recently stated that, Franklin's reputation was "more universal than that of Leibnitz or Newton, Frederick or Voltaire, and his character more beloved and esteemed than any of them."
Benjamin Franklin is a true republican. He has a great faith in the common sense of the people. "God grant," he wrote recently, "that not only the love of liberty but a thorough knowledge of the rights of man may pervade all the nations of the earth, so that a philosopher may set his foot anywhere on its surface and say, 'This is my country."'
The Convention of Philadelphia has a prestigous and grand philosopher in Franklin.
George Washington arrived in Philadelphia on Sunday, May 13th, bells were rang throughout the city as a greeting. The artillery fired several rounds. He was escorted from Gray's Ferry on the Schuylkill by sharply dressed members of the City Troop. His first act was to call upon the city's most distinguished citizen, Benjamin Franklin, Reportedly, Franklin had laid in a cask of porter for the occasion.
General Washington is staying with Robert Morris, reportedly, one of the wealthiest men in Philadelphia, From 1781 to 1785, Morris was superintendent of finance for all thirteen states. The two men are close friends,
A friend from England, impressed with the 6' 4" height of Washington recently said of him, "his chest is full and his limbs, though rather slender, well-shaped and muscular. His head is small . . his eyes are of a light grey color . . . and, in proportion to the length of his face, his nose is long. Mr. Steward, the eminent portrait painter, told me there are features in his face totally different from those he had observed in that of any human being. The sockets of the eyes, for instance, are larger than what he ever met with before, and the upper part of the nose broader. All his features . . . were indicative of the strongest passions, and had he been born in a forest . . . he would have been the fiercest man among the savage tribes."
Washington's sterling character and self-discipline is legendary. Although he is expected to be elected President of the Convention, he will vote with the Virginia delegation.
Thomas Jefferson, speaking of Washington and Franklin recently, said that he "never heard either of them speak ten minutes at a time, nor to any but the main point which was to decide the question. They laid their shoulders to the great points, knowing that the little ones would follow of themselves."
Washington's presence at the Convention will serve to keep it together and most delegates believe that he will be called upon to serve as leader of any new federation.
Of the Massachusetts delegates, Rufus King is the most impressive. The young lawyer, only thirty-three, was born in Maine and sat in the Massachusetts legislature and in Congress. In Congress, he guided the resolution (originally Jefferson's) outlining that there should be "neither slavery or involuntary servitude" in the Northwest Territory.
George Wythe, a delegate from Virginia, signed the Declaration of Independence and aided in designing the state seal of Virginia which defiantly read, SIC SEMPER TYRANNIS. He is a classic scholar and served as the first professor of law at the College of William and Mary. He is a continentalist and supports a strong national government.
Edmund Randolph, who currently served as the Governor of Virginia, is thirty-three years old too, six-feet tall and strikingly handsome. While he is young, Randolph was a member of the Virginia Convention to draft a state constitution. He has also served as attorney general and attended the Annapolis Convention which served as the main initiator of the federal convention.
Gouverneur Morris, who is considered a marathon talker, is expected to speak out during the Convention. "The tall boy," as they labeled him in the Continental Congress, is "an eternal speaker and for brass unequalled." He is a close friend of Washington's. While driving fast horses some years back he injured his left leg which resulted in its amputation. Morris is an advocate of a strong central government, yet he lacks faith in the common man.
George Mason, who lives on the Potomac, is a neighbor of George Washington. The sixty-year-old republican is a flaming patriot. He was co-author of the Virginia Constitution and drafted the famous Virginia Bill of Rights. Mason has altered the motto, Pro Patria Semper, on his family coat of arms to read, Pro Republica Semper. Thomas Jefferson has called him, "the wisest man of his generation."
Mason is a states-sovereignty man, and although he is skeptical about human nature, he has great faith in the common man. "We ought to attend to the rights of every class of people," he stated recently, and "provide no less carefully for the . . . happiness of the lowest than of the highest orders of citizens.
James Wilson is called the "unsung hero" of the federal convention. A delegate from Pennsylvania, Wilson came from Scotland to America at twenty-one with a mind carefully schooled at Edinburgh and Saint Andrews Universities,
He is one of the Convention's "deepest thinkers and most exact reasoners," Wilson is a proponent of strong central government and, no doubt, will play a key role in the Convention.
One of the most extraordinary delegates at the Federal Convention is Alexander Hamilton. He was born in the West Indies and came to America in his youth. At thirty-two he is already famous. During the Revolutionary War he served as an aide-to camp to General Washington and earned the nickname, "The Little Lion"–being only 5' 7" tall.
Hamilton greatly admires the British Constitution, and during the Convention, he is expected to call for a single executive and senators to be chosen for life. "I believe," Hamilton has stated recently, that "the British government forms the best model the world ever produced...."
Thomas Jefferson has accused Hamilton of being "bewitched and perverted by the British example."
If Hamilton calls for an elected monarch, some feel it will only enlighten the debate.
In addition to the leaders, the following delegates are expected to attend: John Blair and George Wythe of Virginia; John Langden and Nicholas Gilman from New Hampshire; Elbridge Gery, Nathaniel Gorham, Caleb Strong from Massachusetts; William Samuel Johnson, Roger Sherman, and Oliver Ellsworth from Connecticut; Robert Yates and John Lansing, Junior, from New York; David Brearley, William Churchill Houston, William Patterson, William Livingston and Jonathan Dayton from New Jersey; Thomas Jifflin, George Clymer, Jared Ingersoll, Thomas Fitzsimons, and Gouverneur Morris from Pennsylvania; George Read, Gunning Bedford, Junior, John Dickinson, Richard Bassett and Jacob Broom from Delaware; James McHenry, Daniel of St, Thomas Jenifer, Daniel Carroll, John Francis Mercer, and Luther Martin from Maryland; John Blair and James McClung from Virginia; William Few, Abraham Baldwin, William Pierce and William Houstoun from Georgia; Alexander Martin, William Richardson Davie, Richard Dobbs Spright, William Bount, and Hugh Williamson from North Carolina; and John Rutledge, Charles Pinckney, Charles Cotesworth Pinckney, and Pierce Butler, from South Carolina
The delegates are to meet at the State House. It is cool in the building early in the morning; however, by noon the stagnate air becomes almost unbearable, There are two rooms on the main floor of the State House. The State Supreme Court meets in the west room and the delegates of the Federal Convention in the east room. The east room is already well known. It was here that the Declaration of Independence was signed. In order to protect the delegates from the loud sounds of passing horses and carriages, the City Commissioner has strewn gravel along Chestnut Street.
The east chamber is designed for public business. It is pleasant and inviting, forty feet by forty feet, with a wooden bar placed across the room from north to south, with a gate for delegates. Large windows look down on both sides of the room allowing plenty of sunlight to enter the room. The delegates will sit at small tables covered in green baize. The tables allow three or four members to sit together. An elevated platform sets at the front of the room.
Now let us go to the State House and observe the events of the first day. Only delegates from Pennsylvania and Virginia are present, hardly enough to proceed. Since this was to be a meeting of state deputations, it is essential that a majority be present. The delegates have decided to postpone the Convention until a majority of seven states are present.
It has rained miserably all weekend, and the roads are nearly impassable due to the soft mud. The Virginia delegation is loosing no time, however. They have agreed to meet each morning, by themselves, and then meet with the Pennsylvania delegation each afternoon. The delay will give Madison, Washington and other members of the Virginia delegation an opportunity to devise a cohesive plan of government for presentation at the Federal Convention.
Since the proceedings of the Convention are to be held in secrecy, we will have to depend upon reports from the delegates themselves as to what is occurring each day.
It is Friday, May 25th. The Convention just adjourned for the day. Delegates from seven of the twelve states were present and anxious to begin the Convention.
The first order of business was to elect a presiding officer. Robert Morris nominated George Washington, Benjamin Franklin was to have made the nomination, but due to inclimate weather, he stayed home. No other names were put forth. After a quick ballot, Washington was elected unanimously and formally conducted to the chair by Morris and John Rutledge. From his desk he made a short acceptance speech.
"When seated," one delegate reported, "he declared that as he never had been in such a situation he felt himself embarrassed, that he hoped his errors, as they would be unintentional, would be excused. He lamented his want of qualifications."
There is something unique the way Washington always deplores his lack of qualifications and calls upon God to help him This modesty was prevalent when he was nominated Commander in Chief of the army, as it is now of the Constitutional Convention. To his fellow colleagues, he is considered the "greatest character in America."
The second event of the day was the selection of Major William Jackson as secretary. The next step was the reading of credentials of the deputies or delegates. Although this procedure is time consuming, it is important because they are carefully drafted documents and allow the delegates to know the states' attitude toward a strong national government. The smallest states spoke the loudest and left no doubt where they stood, Georgia announced herself as "Sovereign and Independent."
Washington and certain other delegates are aware of the need for a strong, cohesive government. These men believe that if the states retain all sovereignty the Union is doomed. "Thirteen sovereignties," Washington wrote recently, "pulling against each other, and all tugging at the federal head, will soon bring ruin on the whole."
And James Wilson, a proponent of a strong central government, has declared to the Convention, "I am both a citizen of Pennsylvania and of the United States."
It is apparent that the delegates from the small states are poised in opposition to the delegates from the larger states.
After the credentials were read, a committee of three was elected by ballot to prepare standing orders and rules. After appointment of a messenger and doorkeeper) the Convention adjourned until Monday.
It is now Monday, May 28th. Dr. Franklin attended the Convention for the first time. Due to his suffering from gout and stone, he was carried to the State House in a sedan chair, which he had bought in Paris. Four muscular prisoners from the Walnut Street Jail bare Franklin around town. He is a unique sight indeed. Glass windows are positioned on both sides, and the four twelve foot, pliant poles attached to the chair give it just the right give for the footsteps of its bearers. The chair was carried into the east room, and after Franklin disembarked, it was placed in the rear near the west wall. The prisoners were then escorted back to jail until it was time to take Franklin home this evening.
Over the weekend the Rules Committee finished its business. The rules were simple yet formal. "Every member," read George Wythe of Virginia, "rising to speak, shall address the President; and whilst he shall be speaking, none shall pass between them, or hold discourse with another, or read a book, pamphlet or paper, printed or manuscript . . . A member shall not speak oftener than twice, without special leave, upon the same question; and not the second time, before every other, who had been silent, shall have been heard, if he choose to speak upon the subject, . . . When the House shall adjourn, every member shall stand in his place until the President pass him. . . ."
Seven states are to comprise a quorum for balloting. One rule provides for reconsideration of proposals already passed upon. Another calls for complete secrecy of the proceedings.
The Convention is scheduled to convene each day at 10:00 a.m. and dismiss at 3:00 p.m.
It appears that attendance is averaging about thirty.
It is now May 29th. Since Virginia was a leader in calling for the Convention, it was incumbent upon the deputies from that state to suggest a plan or agenda to follow. And the Virginia delegation did not let their colleagues down. As soon as the deputies reconvened on Tuesday, Edmund Randolph, Governor of Virginia, began outlining the defects of the Confederation. The six-feet tall, handsome governor reportedly stated, "Look at the public countenance, from New Hampshire to Georgia' Are we not on the eve of war, which is only prevented by the hopes from this Convention?"
After outlining the defects of the Confederation, the Governor introduced fifteen Resolves which outlined an entirely new national government. While the delegates had met to revise the Articles of Confederation, the Virginia Plan, as it is called, goes far beyond that.
Although introduced by Governor Randolph, the Resolves bear the handiwork of James Madison. These resolutions are important because they will, no doubt, set the stage for the summer debate. There is even talk that the Virginia Plan will form the basis of a new form of government. The Virginia Plan contains fifteen resolutions.
1. Resolved that the Articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution; namely, 'common defense, security of liberty and general welfare.'
2. Resolved therefore that the rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases.
3. Resolved that the National Legislature ought to consist of two branches.
4. Resolved that the members of the first branch of the National Legislature ought to be elected by the people of the several States every for the term of; to be of the age of years at least, to receive liberal stipends by which they may be compensated for the devotion of their time to public service; to be ineligible to any office established by a particular State, or under the authority of the United States, except those peculiarly belonging to the functions of the first branch, during the term of service, and for the space of after its expiration; to be incapable of re-election for the space of after the expiration of their term of service, and to be subject to recall.
5. Resolved that the members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures, to be of the age of years at least; to hold their offices for a term sufficient to ensure their independency, to receive liberal stipends, by which they may be compensated for the devotion of their time to public service; and to be ineligible to any office established by a particular State, or under the authority of the United States, except those peculiarly belonging to the functions of the second branch, during the term of service, and for the space of after the expiration thereof.
6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be empowered to enjoy the Legislative Rights vested in Congress by the Confederation and moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof.
7. Resolved that a National Executive be instituted; to be chosen by the National Legislature for the term of years, to receive punctually at stated times a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the National Laws, it ought to enjoy the Executive rights vested in Congress by the Confederation
8. Resolved that the Executive and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, and every act of a particular Legislature before a Negative thereon shall be final, and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by of the members of each branch.
9. Resolved that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour, and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution, that the jurisdiction of the inferior tribunals shall be to hear and determine in the first instance, and of the supreme tribunal to hear and determine in the denier resort, all piracies and felonies on the high seats, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.
10. Resolved that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of Government and Territory or otherwise, with the consent of a number of voices in the National legislature less than the whole.
11. Resolved that a Republican Government and the territory of each State, except in the instance of a voluntary junction of Government and territory, ought to be guaranteed by the United States to each State.
12. Resolved that provision ought to be made for the continuance of Congress and their authorities and privileges, until a given day after the reform of the articles of Union shall be adopted, and for the completion of all their engagements.
13. Resolved that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto.
14. Resolved that the Legislative Executive and Judiciary powers within the several States ought to be bound by oath to support the articles of Union.
15. Resolved that the amendments which shall be offered to the Confederation, by the Convention ought at a proper time, or times, after the approbation of Congress to be submitted to an assembly or assemblies of Representatives, recommended by the several Legislatures to be expressly chosen by the people, to consider and decide thereon.
Governor Randolph was on his feet for nearly four hours. After he sat down, Charles Pinckney, a delegate from South Carolina, stood up and proposed a new system of government also. Because the hour was late he did not discuss it, however. The plan seems to have drawn little attention due to the fact that it had been proposed a year ago in Congress. The effort of Pinckney is expected to carry little weight in comparison to the proposals introduced by such an important delegation as Virginia. Pinckney's Plan is not likely to be discussed at any length by the Convention. The deputies then resolved that "they would the next day form themselves into a committee of the whole, to take into consideration the state of the Union."
It is now Wednesday, May 30th. In accordance with the balloting of the previous day, the Convention resolved itself into a Committee of the whole and Nathaniel Gorham of Massachusetts was placed in the chair.
The Committee of the Whole is a device, invented in England centuries ago, to give the House of Commons freedom of debate under autocratic rulers, It is a procedure whereby freer discussion and less formal action is taken on measures.
The Committee of the whole resembles an informal committee. The delegates can resolve themselves back into a Convention and vote formally at will, It appears that the delegates will spend several weeks in the Committee of the Whole discussing the Virginia Plan.
It is Friday, June 15. For over two weeks the delegates, averaging thirty in attendance, have been debating each part of the Virginia Plan. The Plan calls for a national government with three separate branches of government–legislative, executive, and judicial. The legislature is to consist of two houses and possess power sufficient to force the states into adherence. Every aspect of the Virginia Plan is being extensively analyzed and discussed. The large states are favoring a strong national government, whereas the small states are in favor of amending the Articles of Confederation.
As the delegates reconvened, William Patterson of New Jersey introduced a plan which he and his supporters "wished to be substituted in place of that proposed by Mr. Randolph."
The New Jersey Plan, as it is called, is in sharp conflict with the Virginia Plan. It consists of nine resolutions in the form of amendments to the Articles of Confederation. Additional powers would be vested in Congress for raising a revenue by import duties, stamp taxes, postal charges, and from regulating trade and commerce.
The New Jersey Plan calls for an executive, elected by Congress, and a supreme tribunal appointed by the executive.
The delegates have agreed to discuss and contrast the New Jersey Plan with the Virginia Plan in the Committee of the Whole.
William Patterson of New Jersey, John Lansing, Junior of New York, and Oliver Ellsworth of Connecticut are the principal advocates of the New Jersey Plan and James Madison of Virginia, James Wilson of Pennsylvania, and Edmund Randolph of Virginia are the leading opponents of the key features of the New Jersey Plan is the single legislative chamber of Congress. James Wilson, the astute lawyer from Pennsylvania, summarized the differences between the two plans: Virginia Plan proposes two branches in the legislature; Jersey, a single legislative body. Virginia, the legislative powers derived from the people; Jersey, from the states. Virginia, a single executive; Jersey, more than one. Virginia, a majority of the legislature can act; Jersey, a small minority can control. Virginia, the legislature can legislate on all national concerns; Jersey, only on limited objects. Virginia, legislature to negative all state laws; Jersey, giving power to the executive to compel obedience by force. Virginia, to remove the executive by impeachment; Jersey, on application of a majority of the states. Virginia, for the establishment of inferior judiciary tribunals; Jersey, no provision.
During the debate Alexander Hamilton has expressed the sentiment that he is "not in sentiment with either plan." Heated debate will be underway once again in the Convention.
It is Monday, June 18th. The first speaker on his feet was Alexander Hamilton. He reportedly spoke for nearly six hours, At thirty-two he is already famous for his role in the Revolutionary War and in the post war years leading to the Annapolis Trade Conference. Hamilton, an admirer of aristocracy and the British Government, proposed a radical plan of government where the executive and senators are to be chosen for life. State governors are to be appointed by the national government.
Hamilton made a statement during the debate which many delegates feel will haunt him in the future. "I believe," he said, "the British government forms the best model the world ever produced, . . . This government has for its object public strength and individual security–said with us to be unattainable. All communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people. The voice of the people has been said to be the voice of God. . . it is not true in fact.... Can a democratic Assembly, who annually resolve in the mass of the people, be supposed steadily to pursue the public good?"
Hamilton has thus introduced another plan into the Convention, however, it is not expected to be discussed or voted upon. Most delegates consider it such an extreme plan as not worthy of discussion.
It is Tuesday, June 19th. As soon as the meeting opened James Madison totally ignored Hamilton's proposal for an American King and began analytically shredding the New Jersey Plan piece by piece. Each point was phrased as a question, demonstrating the inadequacies of the New Jersey Plan to solve the major problems facing the states.
When Madison finished speaking, Rufus King of Massachusetts put a key question before the committee: Was Mr. Randolph's Plan preferable to Mr. Paterson's? The delegates voted and by a vote of seven to three, with Maryland divided, the states voted in favor of the Virginia Plan. The New Jersey Plan is dead. The Hamilton Plan is simply being ignored and not voted on. It has served one purpose, however, it has moved the Virginia Plan closer to the center of the political spectrum. The negative vote against the New Jersey Plan does not mean the small states have capitulated. They are determined to continue pressing their case against a strong, national government.
It is June 28th. The delegates were locked in heated debate over proportional representation most of the day. The delegates reached a critical point in their deliberations. Having failed to reach a compromise, the Convention was reportedly on the verge of breaking up. In fact, the tension was so great that the venerable old Franklin decided it was time to speak up. He said the following:
"The small progress we have made after 4 or five weeks close attendance & continual reasonings with each other–our different sentiments on almost every question, several of the last producing as many noes as ays, is methinks a melancholy proof of the imperfection of the Human Understanding. We indeed seem to feel our own want of political wisdom, since we have been running about in search of it. We have gone back to ancient history for models of Government, and examined the different forms of those Republics which having been formed with the seeds of their own dissolution now no longer exist, And we have viewed Modern States all round Europe, but find none of their Constitutions suitable to our circumstances.
"In this situation of this Assembly, groping as it were in dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened' Sir, that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings? In the beginning of the Contest with G. Britain, when we were sensible of danger we had daily prayer in this room for the divine protection.–Our prayers, Sir, were heard, and they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a Superintending providence in our favor, To that kind providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity. And have we now forgotten that powerful friend? or do we imagine that we no longer need his assistance? I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth–that God governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? We have been assured, Sir, in the sacred writings, that 'except the Lord build the House they labour in vain that build it,' I firmly believe this; and I also believe that without his concurring aid we shall succeed in this political building no better than the Builders of Babel: We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and bye word down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing Governments by Human Wisdom and leave it to chance, war and conquest.
"I therefore beg leave to move–that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in the Assembly every morning before we proceed to business, and that one or more of the Clergy of this City be requested to officiate in that service.
Although the Convention did not invite a minister to offer daily prayer, Franklin's solemn words greatly calmed the unrest and frustration of the delegates. In fact, it may have prevented the delegates from adjourning and returning home.
It is now Friday, June 29th. The delegates have already agreed, unanimously, to elect the lower house every two years and are busy discussing representation in the upper house. A motion was filed to give each state an equal vote in the upper house. Another vigorous debate is underway. It is Monday, July 2nd. The question of whether to give each state an equal vote in the upper house is before the delegates, The vote was a tie with five states in the affirmative and five states in the negative. The Convention is now at a standstill. Charles Pinckney of South Carolina proposed a compromise committee to seek a solution to the difficult question of proportional representation. It is Thursday, July 5th. The compromise committee, consisting of Gerry, Ellsworth, Yates, Paterson, Franklin, Bedford, Martin, Mason, Davie, Rutledge, and Baldwin, presented its report recommending that in the first branch of Congress each state should have one representative for every 40,000 inhabitants, and that in the second branch each state should have an equal vote,
Members of the small states, fearing domination in Congress by the large states are generally in favor of the plan. Discussion is underway to fashion a compromise.
It is Monday, July 16th. For over a week it has been extremely hot. On the evening of the 12th, the weather suddenly changed. It turned cool. On the 13th and 14th the delegates discussed and modified reports of the compromise committee. Today the delegates over came their greatest obstacle. Every state is to have two members in the upper house or senate. This great compromise will offset proportional representation in the lower house where one representative is to be elected to serve for every forty-thousand inhabitants.
The small states are exceedingly pleased over the compromise, and the larger states have decided to let it remain and not to open the debate again later.
It is doubtful that the delegates would have reached agreement without a change in the weather. Many consider it a Providential act. The delegates had argued "most pertinaciously for near six weeks," over proportional representation.
It is Thursday, July 26th. The Convention concluded its discussion on the executive. No fewer than sixty ballots were cast before a satisfactory method for selecting the President was agreed upon. Today the delegates appointed a small committee–the Committee of Detail–to set their resolves, amendments and numerous suggestions into a workable document, The five members of the committee include: Randolph of Virginia, Wilson of Pennsylvania, Gorham of Massachusetts, Ellsworth of Connecticut and Rutledge of South Carolina. The men are not expected to draft a finished Constitution. However, their report will be based upon the twenty~three resolutions already passed. The delegates have decided to give the committee eleven days–from July 26th to August 6th–to prepare. In the meantime, the Convention will recess.
It is Monday, July 30th. General Washington decided to go fishing with Gouverneur Morris near the vicinity of Valley Forge. While Morris was fishing, the general rode over to his old Cantonment of the American Army during the Winter of 1777. He visited all the works which are in ruins and the encampments in the woods where the grounds had not been cultivated. After a lengthy ride through the valley, the General returned to his friends and fished until dark.
It is Monday, August 6th. The Committee of Detail finished its work. The first draft of a constitution, based upon the greatly amended Virginia Plan was set before the delegates.
The report was printed for use of the members of the Convention on seven folio pages with wide margins for making notations. It consists of a preamble and twenty-five articles with forty-three sections and a larger number of paragraphs. The delegates will now carefully scrutinize the report and amend or delete as the majority desires.
It is Monday, September 10th. For the last five weeks the delegates have been considering the report of the Committee of Detail, Article by article, section by section, clause by clause, the delegates have painstakingly discussed the draft of the new Constitution. It was a trying task, yet the delegates have been dedicated to a careful examination and discussion of each part of the report.
With the adoption of the great compromise over proportional representation in the senate, many of the those who had opposed the establishment of a strong national government have been won over by Madison, Wilson, Washington, and others. A spirit of compromise filled the air as the delegates finished their discussion of the report. The delegates appointed a Committee of Style and Arrangement to make a final report to the Convention. The Committee consists of: William Samuel Johnson, Alexander Hamilton, Gouverneur Morris, James Madison, and Rufus King.
It is Wednesday, September 12th. The Committee of Style and Arrangement finished its work. Gouverneur Morris was selected to prepare the final draft of the Constitution and it is now being printed. While waiting for final draft, the delegates busied themselves by drafting a letter to the Congress explaining their reasons for proposing a "different organization" of government. The letter states that "the Constitution, which we now present, is the result of a spirit of amity and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable."
The letter seems to accord to a brief statement made early in the Convention by General Washington. One morning before a quorum had assembled several delegates were advocating measures designed purely to meet the immediate approval of the people. Washington interrupted the discussion and said: "It is too probable that no plan we propose will be adopted. Perhaps another dreadful conflict is to be sustained If to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and honest can repair The event is in the hand of God." And so it has been with remarkable results.
It is Saturday, September 15th. The real work of the Convention is drawing to a close. The printed copies of the Constitution were distributed to the delegates on Thursday, September 13th and they have spent the last three days carefully comparing each article and clause of the new document reported by the Committee of Style and Arrangement with the report which was referred to the Committee.
The majority of the delegates are in favor of the new document and are desirous to bring the Convention to an end. A number of small concessions were made to certain delegates in order to secure unanimous approval.
Just before a vote was taken upon the final draft report, Edmund Randolph and George Mason made a last plea for a second convention to add amendments to the Constitution proposed by various state conventions. Randolph's proposal was rejected.
It is Monday, September 17th. It rained hard on Friday and Saturday, but today it is a clear, yet cold day. Autumn can be felt in the air, The engrossed constitution was read as delegates began flowing to the east wing of the State House for the last time, A grand Convention was about to end its deliberations. Its noble participants have achieved what many thought impossible–a new national government designed to perpetuate and preserve the great natural rights of man. Gouverneur Morris has devised a form that will make the delegates action appear to be unanimous: "Done in Convention, by the unanimous consent of the States present the 17th of September . . . In Witness whereof we have here unto subscribed our names.
Morris persuaded Franklin to present the approval. Franklin prepared a speech. It read: "Mr. President: I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele, a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express is so naturally as a certain french lady? who in a dispute with her sister, said "I don't know how it happens, Sister but I meet with no body but myself, that's always in the right"–I n'y a que moi qui a tourjours raison."
"In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an Assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so hear to perfection as it does; and I think it will astonish 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 meet hereafter for the purpose of cutting one another's throats. Thus I consent, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good–I have never whispered a syllable of them abroad–Within these walls they were born, and here they shall die–If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partisans in support of them? we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity. Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administered.
"On the whole, Sir, I cannot help expressing a wish taint every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility–and to make manifest our unanimity, put his name to this instrument."
As Benjamin Franklin signed the Constitution he wept. While the other delegates were signing the Constitution, Doctor Franklin "looking towards the Presidents Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun. I have, said he, often and often in the course of Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting Sun."
The Constitution was signed by all the members present except Randolph, Mason and Gerry. Several other delegates had left earlier and had not returned to sign the Constitution. The Federal Convention then dissolved itself by an "Adjournment sine die," The delegates then took one last look at the grand charter they had fashioned and then turned and walked out the wide doors of the State House, The members of the Convention dined together and then took a "cordial leave of each other." General Washington then returned to his "lodgings, did some business with, and received the papers from the Secretary of the Convention, and retired to meditate on the momentous work which had been executed, after not less than five, and for a large part of the time Six, and sometimes 7 hours sitting everyday' (except) Sundays, and the ten days adjournment for more than four months." In just five short months General Washington will write these memorable words to LaFayette: "It appears to me, then, little short of a miracle, that the Delegates from so many different States (which States you know are also different from each other), in their manners, circumstances, and prejudices, should unite in forming a system of national Government, so little liable to well founded objections."
3. A REVERENT LOOK AT THE U.S. CONSTITUTION
The United States of America was founded upon the premise, eloquently expounded by Patrick Henry, that, "There is a just God who presides over the destinies of nations," The invisible hand of Providence was everywhere present in the formation of this great nation, especially in the drafting of the U.S. Constitution. Its creation was a miracle. In a letter to Marquis de LaFayette, on February 7, 1788, George Washington stated, "It appears to me . , . little short of a miracle, that the Delegates from so many different States (which States you know are also different from each other), in their manners, circumstances, and prejudices, should unite in forming a system of national Government, so little liable to well founded objections.
Miracles cannot be performed save by exceptional men. Gifted men such as: George Washington, Benjamin Franklin, George Mason, Edmund Randolph, James Madison, James Wilson, Robert Morris, Gouverner Morris, Roger Sherman, Alexander Hamilton, and a multitude of others were called up to lay the foundation of the American government. And they performed their task remarkably weIl.
"The Constitution," Thomas Jefferson wrote to his friend James Madison, in February of 1788, "is unquestionably, the wisest ever yet presented to men." And John Adams declared that it is "if not the greatest exertion of human understanding, the greatest single effort of national deliberation that the world has ever seen.".
The Constitution has been revered not only by American scholars and statesmen, but by foreigners too. The Prime Minister of Great Britain, writing in 1887, in a letter to the Centennial Committee on the Constitution, declared: "I have always regarded that Constitution as the most remarkable work known . . . in modern times to have been produced by the human intellect."
Signed on September 17, 1787 in Philadelphia, the U.S.. Constitution is the oldest written charter currently functioning in the world.
The Constitution consists of a Preamble and seven articles. In addition there are twenty-six amendments. The first ten amendments are known as the Bill of Rights. Let us now look at the Constitution, beginning with the Preamble.
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, 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."
The task of the founding fathers was not to construct a governmental system from the foundation up, There were already in existence thirteen foundation stones in the form of state governments. Upon the states a natural structure was erected. The Preamble points out the six basic objectives of the national government. The national government was to be supreme in its domain and the state governments in theirs. This balancing of governmental powers was designed to "form a more perfect Union."
While the Preamble is not a grant of power it does outline that the people are the sovereign rulers. The founding fathers adhered faithfully to this principle and created a limited government of delegated powers, the people retaining all others unto themselves.
Article I of the Constitution outlines the powers of the legislative branch. Section I states that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Members of the House of Representatives are elected every two years whereas the Senators were originally "chosen by Legislature" of each state prior to the Seventeenth Amendment. This unique method allowed the people to be represented in the nation's capitol through the House of Representatives, and for the States to be represented through the Senate. The appointment of senators was also designed as a check on the power of the national government, and to allow the states some indirect participation in the federal legislative process. The ratification of the Seventeenth Amendment in 1913 eliminated this wise check on the national government and provided for the direct election of the senators.
Section 7 of Article I provides that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." This provision requires that money bills originate in the body elected directly by the people.
A bill for raising revenue is one which calls for levying of taxes. A Declaration of the Stamp-Act Congress issued on October 19, 1765 stated: "That it is inseparably essential to the freedom of a people and the undoubted right of Englishmen that no taxes be imposed on them but with their own consent, given personally or by their representatives. . . .
As a result of their experience with England over taxes, the framers carefully entrusted the raising of revenue through taxes to the representatives directly elected by a vote of the people.
Section 8, Clause I, of Article I is one of the most controversial clauses of the Constitution. It reads: "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; but all Duties, Imposts and Excises shall be uniform throughout the United States. . . .
Some jurists, lawmakers, and scholars have felt that this provision granted the national government unlimited power to legislate in whatever area they deemed necessary, They have clung to this view in spite of such statements by James Madison, written in The Federalist, that: "The Powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce, with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."
At another time, the scholar-statesman from Virginia wrote in The Federalist: "It has been urged and echoed that the power 'to lay and college taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stopping to such a misconstruction.
"Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expression just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms 'to raise money for the general welfare.'
"But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than gist to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity; which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing had not its origin with the latter."
It is clear from a study of the debates at the Federal Convention, The Federalist and the writings of the principal architects of the Constitution that they established a limited national government with carefully defined powers
Some of the limited powers granted to Congress include: borrowing money on the credit of the United States; regulating commerce with foreign nations, and the states; establishment of uniform rules of naturalization and uniform bankruptcy laws; punishment of counterfeiting the securities and current coin of the United States; establishment of post offices; granting of copyrights for writers and inventors; constituting of tribunals inferior to the supreme court; defining and punishment of piracies and felonies committed on the high seas along with offenses the law of nations) declaring war; raising and supporting armies; providing and maintaining of a navy; making rules for the government and regulation of land and naval forces; calling forth the militia to suppress insurrections, repel invasions and execute the laws of the Union; providing for organizing, arming and disciplining the militia and governing those employed in the service of the United States; exercise legislation over the District of Columbia; and for making all laws which are necessary to implement the powers vested by the Constitution in the national government.
That the founders intended the national government to be energetic, yet limited is attested by a statement of James Madison in The Federalist. He said, "The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States."
Section 10, Clause I of Article I sets forth a number of restraints upon the states in order to make the Union function more orderly and smoothly. It reads: "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Morque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, expost facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."
The provision restraining the states from passing any laws "impairing the obligation of contracts," aptly illustrates the code of honor ascribed to by the framers and their desire that contracts once made should be fulfilled.
Article II of the Constitution outlines that: "The executive Power shall be vested in a President of the United States of the United States of America."
The President is selected by a process known as the electorial college, Clause 2 of Section I requires that: "Each State shall appoint' in such manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be 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 term "elector" means a citizen who has been selected to participate with other specially designated citizens in the choosing of the president and vice-president. The number of electors is equivalent to the number of senators and congressmen in each state For example, Utah has two senators and three congressmen Therefore, it has five electoral votes. The body of electors chosen by the states is frequently called the electoral college.
When George Washington was first elected in 1788 there were a total of sixty-nine electoral votes cast, that being the number of senators and representatives at that time.
The intention of the framers in indirectly selecting a president and vice-president was to insure that the most virtuous and wisest men were selected to serve. But during the administration of John Adams, the anti-Federalists or friends of Thomas Jefferson held a caucus and selected him as their candidate for president. Later the caucus was superseded by the party convention. This method prevails today.
At the beginning of the electoral college a number of states allowed their legislatures to select their electors. A number of electors were also chosen by districts. Presently, they are chosen by a ballot of the whole people. The ballot contains the names of the party candidates for president and vice-president. The electors are expected (though not obligated by the Constitution) to vote for the party candidates.
The electoral system, modified slightly by the Twelfth Amendment, has served the nation well.
Section 2 of Article II contains a list of duties of the Chief Executive. Clause 1 and 2 state: "The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into the actual Service of the United States; he may 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.
"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, 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 Count, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . . ."
Section 3 of Article II provides that the President "shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient. . . ; he shall take Care that the Laws be faithfully executed. . . ." As a check on the legislative department, the President is given limited legislative duties; he gives a State of the Union address where he points out the needs of the Union; he recommends legislation; and he vetoes bills of Congress; however, Congress is given power to override the President's veto. To check the chief executive, the Constitution requires that certain appointments be approved by the Senate; it requires treaties to be ratified by this same body and authorizes the appointment of diplomatic representatives with the advice and consent of the Senate.
Article III of the Constitution states that: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior. . . ."
The Supreme Court has original jurisdiction, (it can adjudicate matters directly without going through lower courts) in only two cases: (1) "Cases affecting Ambassadors, other public Ministers and Consuls;" and (2), "those in which a State shall be party."
In all other cases, the Supreme Court has only appellate jurisdiction, (it can adjudicate disputes only on appeal from inferior courts). In exercising appellate jurisdiction the Supreme Court is subject to "such Exceptions, and under such Regulations as the Congress shall make.
Concerning the judicial branch of government, Alexander Hamilton, writing in The Federalist explained: "The complete independence of the courts of justice is peculiarly essential in a limited Constitution, By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no expost facto laws, and the like. Limitations of this Kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."
Although the judicial branch plays an important role in our Republic, it is, as Alexander Hamilton stated, "the weakest of the three departments of power." James Madison pointed out that, "In republican government the legislative authority necessarily predominates. "
The division of governmental powers into three separate departments at the national level is one of the ingenious aspects of the Constitution. All three branches were prohibited from delegating their power to each other, yet, in a miraculous manner, they are bound into an efficient operating unit.
As J. Reuben Clark, former Under-secretary of State and Ambassador to Mexico said: "It is this union of independence and dependence of these branches–legislative-executive and judicial–and of the governmental functions possessed by each of them, that constitute the marvelous genius of this universal document. The framers had no direct guide in this work, no historical governmental precedent upon which to rely. As I see it, it was here that the divine inspiration came. It was truly a miracle,
Article IV of the Constitution outlines the relation of the individual states to each other and the relation of the United States to states and territories.
Section 4 of this article guarantees "to every State in this Union a Republican Form of Government. . . ."
According to James Madison, a key architect of the Constitution, a republican government derives "all its powers directly or indirectly from the great body of the people" and rests "on the capacity of mankind of self-government." In republican theory and practice it is "politic as well as just that the interests and rights of every class should be duly represented and understood in the public Councils." It is also a fundamental tenet of republicanism "that men cannot be justly bound by laws in making which they have no part." A republican government is one which is "administered by persons holding their offices during pleasure, for a limited period, or the during good behavior." And during the duration of their appointments to government service "the trust should be placed not in a few but (in) a number of hands."
The "fundamental" and "vital" principle of republican government is "les majoris parties," the will of the majority, and the "majority who rule in such governments" are regarded as "the safest Guardians both of public Good and private rights." However, majority rule must always be reasonable and just.
Republican government, limited in nature, is designed to secure "life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety," Whenever the government is "found adverse an inadequate to the purposes of its institution," the people have "an indubitable, unalienable, and indefeasible right to reform and change" it.
It's this concept of republican government that makes our form of government different from all others.
Article V contains the provisions for amending the Constitution. The founding fathers realized there would be a need for judicious changes to occur in the document as the fledgling nation developed and so they wisely provided two methods for proposing amendments.
The first method requires the assent of two-thirds of each House of Congress and the ratification by three-fourths of the states. The second method allows for amendments to be proposed by a constitutional convention called by Congress upon the application of two-thirds of the states. Ratification must also be by three-fourths of the states. The second method provides a way for the people to amend the Constitution in the face of an intransigent national government, or in other words, it provides a way to force the government to operate within constitutional bounds.
Obviously, the amending process is important. It gave us the Bill of Rights as the first ten amendments and gave us the end to slavery with the 13th Amendment.
George Washington, the Father of our Country, warned about the spirit of encroachment among the separate branches of the national government and of the importance of the amending-process in his famous Farewell Address;
"It is important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its administration, to confine themselves within their respective Constitutional spheres; avoiding in the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power; by dividing and distributing it into different depositories, 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 own eyes. To preserve them must be as necessary as to institute them. If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield."
Article VI outlines that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby...."
Needless to say any federal law or treaty which contravenes the Constitution would be void because the Constitution is superior to both. As Alexander Hamilton stated; "No legislative act, therefore, contrary to the Constitution, can be valid." And ratification of a treaty is a legislative act.
Article VII deals with the ratification of the Constitution.
The Constitution was ratified by three-fourths of the states in 1788 and went into operation in 1789 with the election of President George Washington. On September 25, 1789 twelve amendments were proposed by the new Congress to the States. Ratification of ten of the twelve amendments was completed on December 15, 1791, and they became known as the Bill of Rights. The Bill of Rights reads as follows:
Article I–Congress shall make no law 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 II–A well regulated Militia, being necessary to the security of a free State, the right of the people to keep the bear Arms, shall not be infringed.
Article III–No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law
Article IV–The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article V–No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person 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 life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
Article VI–In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by 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 Witnesses in his favor, and to have the assistance of counsel for his defense.
Article VII–In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
Article VIII–Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Article IX–The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Article X–The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
It should be pointed out that many of the architects of the Constitution felt that a bill of rights was unnecessary. It was while the Constitution was in the process of being rejected by the States, that a wave of protest swept through the States in favor of them. The subject was discussed by Hamilton in The Federalist. He came to the conclusion that a "bill of rights, in the sense and to the extent in which they are contented for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
The framers were aware that the Constitution established a limited national government with well defined powers. They had carefully enumerated the powers which each of the three branches of government could exercise and since Congress was free to only exercise certain powers, it was unnecessary to add a bill of rights because the people held all rights in a state of nature.
Even though Hamilton, Madison and others felt a bill of rights was unnecessary, a majority of the delegates in the state ratifying conventions deemed it not only necessary, but would not have ratified the Constitution without a specific promise that a bill of rights would be drafted as soon as the new government began operating.
Since Madison was elected to the First Congress, he spearheaded the drive which resulted in the adoption of the Bill of Rights.
As we enter the 21st century, let us pause and thank the Almighty for the great blessings which he has bestowed upon the American people. Let us thank Him for our liberties and for the efforts of those who drafted the Declaration of Independence, the Constitution and Bill of Rights. Then let us firmly resolve that in the trying years ahead, we will uphold and promote the principles of constitutional government at home and abroad. If we do so the blessings of heaven will rest upon us as it rested upon our forefathers.
4. James Madison–A Tribute to the Father of the Constitution
David Hume, the renowned British philosopher of the Eighteenth Century once wrote: "Of all men, that distinguished themselves by memorable achievements, the first place of honour seems due to Legislators and founders of States, who transmit a system of laws and institutions to secure the peace, happiness, and liberty of future generations,"
Hume's statement, written in 1748, is a prophetic tribute to James Madison, the key architect of republican government in early America. While we rightly revere the other Framers, Madison holds a unique place in our hearts and minds for a variety of reasons. First, he played a vital role in establishing religious freedom in Virginia. The statutes which he helped formulate were used as models throughout the colonies. Second, he played a major role in the calling of a constitutional convention through his attendance at the Annapolis Trade Convention. Third, he prepared the draft of the Virginia Resolution which formed the basis of the U.S. Constitution. Fourth, he devised the concept of an extended republic, thereby paving the way for a firm union of the States. Fifth, he authored 29 classic essays on the new Constitution which were printed in varies New York City newspapers. These essays, along with those of John Jay and Alexander Hamilton were published as The Federalist. Sixth, he played a pivotal role in the Virginia state ratifying convention by staunchly defending the Constitution against its most bitter opponent, Patrick Henry. Seventh, he sponsored the first ten amendments to the Constitution which became known as the Bill of Rights and toiled industriously to secure their ratification.
No other American, with the exception of George Washington, Benjamin Franklin, Thomas Jefferson and Abraham Lincoln, has contributed as much to the development and advancement of freedom and free institutions as James Madison. Truly, he earned the title, "Father of the Constitution."
Major William Pierce, a delegate to the Constitutional Convention in Philadelphia wrote the following about lames Madison in 1787: "A character who has long been in public life, and what is very remarkable, every person seems to acknowledge his greatness. He blends together the profound politician, with the scholar. In the management of every great question he evidently took the lead in the Convention, and though he cannot be called an orator, he is a most agreeable, eloquent, and convincing speaker, From a spirit of industry and application which he possesses in a most eminent degree, he always comes forward the best informed man of any point in debate. The affairs of the United States, he perhaps, has the most correct knowledge of any man in the Union. He has been twice a member of Congress, and was always thought one of the ablest members that ever sat in that Council."
James Madison was born on March 16, 1751 in Port Conway, Virginia, at the home of his maternal grandfather. His mother, Eleanor Conway Madison, was visiting there at the time. His mother was the daughter of an aristocratic Virginia family. His father, James Madison, Sr,, was a vesty man in the Anglican Church and a justice of the peace–positions which were held only by men of high rank and social standing. He was also a descendant of an aristocratic Virginia family and cultivated over 2,000 acres of land. The Madisons were the leading family of Orange County, Virginia.
James Madison thus entered birth in a status of life that not only demanded but expected great things from him.
In addition to being born with wealth and social position, James was gifted with exceptional intellect. His biography records his delight at age eleven of discovering The Spectator. The impact of that literary classic upon his young mind led him to state nearly seventy years later that from "his own experience," it was a volume "peculiarly adapted to inculcate just sentiments, and appetite for knowledge, and a taste for the improvement of the mind and manners."
James grew up on his family's plantation and in 1762, near the age of twelve, he was sent to a nearby boarding school established in King and Queen County by Donald Robertson. Madison's initiation into the world of schooling ideas was facilitated by Robertson, who nearly ten years earlier had emigrated to Virginia from Scotland. The young student later described his school master as "a man of extensive learning and a distinguished teacher." Under the tutelage of his Scottish teacher, the Young Madison "studied the Latin and Greek languages, was taught to read but not speak French, and besides Arithmetic and Geography, made some progress in Algebra and Geometry. Miscellaneous literature was also embraced by the plan of the school," Madison's affectionate references to Robertson indicate that he viewed his early schools as an adventure, not a burden to endure.
In 1767 the young Madison, then sixteen years old, returned home. The Reverend Thomas Martin from New Jersey had just become rector of the local Church of England, and since these were now four Madison children in need of schooling, Martin consented to live at Montpelier and tutor them.
Martin was a graduate of the College of New Jersey (now Princeton University) and spoke highly of Nassau Hall. His praise of the school led the Madisons to select the college as the place for young James to continue his education.
When the young Virginian entered the College of New Jersey in the summer of 1769, the school was preoccupied with a detailed analysis of society and the principles of government. It was here that Madison immersed himself in the liberalism of the Enlightenment and became a disciple of Eighteenth Century political theory. It was also here that he learned the stern habits of thought and study that transformed him into the most scholarly statesman in American history. It was here too that he would join the Whig Party.
The progressive college was dominated by John Witherspoon, its new president. (Later he would be the only clergyman to sign the Declaration of Independence.) Madison was fascinated by this learned cleric, whose dogmatic philosophy in politics, religion and philosophy made him the center of controversy.
Madison's aggressive character and his impulsive desire for learning resulted in his taking double the normal load of classes. The marathon type effort paid great dividends. He completed the four-year course of study in two years and was awarded his bachelor of arts degree in the autumn of 1771 at the age of twenty. This effort necessitated, Madison wrote in his autobiography, "an indiscreet experiment of the minimum of sleep and the maximum of application which the constitution would bear. The former was reduced for some weeks to less than five hours in the twenty-four." This effort demonstrated young Madison's unquenchable thirst for learning. However, the accelerated pace did undermine his health somewhat.
After graduation rather than return home, he decided to stay at the College for some post graduate work. He had become a friend to Rev. Witherspoon and during the winter of 1771-1772 he devoted his time to "acquiring a slight knowledge of the Hebrew (language), which was not among the regular classes" and to law.
During his undergraduate courses, Madison encountered these ideas which effected his life most dramatically and led to his life long devotion to the principles of politics, religion and civil liberty.
The course which transformed Madison into the scholar-statesman was entitled, "Moral Philosophy." The syllabus of Rev. Witherspoon's class lectures have been preserved and reveal the list of recommended readings which indoctrinated young students in the philosophy of the enlightenment, particularly the great Scottish philosophers,
The books of David Hume, Francis Hutcheson, Adam Smith, Thomas Reid, Lord Kames, and Adam Ferguson formed the center of the moral philosophy course at the College of New Jersey. In these books dealing with history, ethics, politics, economics, psychology, and jurisprudence, the young Virginian received his "very early and strong impressions in favor of Liberty both Civil (and) Religious."
Hutcheson, Hume, Smith and other Eighteenth Century Scottish philosophers held that politics, economics and law could be reduced to a science. Their leading model was Sir Isaac Newton, who earlier in the century had successfully demonstrated that the natural laws of the physical universe could be discovered through reason. The Scottish philosophers believed that the law of nature could also be used to discover the laws of human nature, Through the use of reason and the scriptures, man could determine the will of God, thereby paving the way for a reformation of society along those lines which led to unparalleled freedom and happiness.
The creation of a new social order which would guarantee liberty, equality, and happiness and protect conscience and property fascinated the young Virginia while studying his senior year. It was to this noble dream that Madison dedicated the remainder of his life.
The scholarly treatises of the Scottish philosophers, the writings of the classics, the theories and ideas of such Europeans as Montesquieu, Voltaire, Diderot, along with his abiding faith in God transformed the young Virginian into one of America's premier scholar-statesmen. Madison came away from the College of New Jersey with a firm belief that s social scientist could gain, through a study of the laws of nature and history, a sufficient knowledge of the internal workings of political society to be able to diagnose and cure its recurring defects.
When the young Virginian returned to Montpelier in 1772, after a thorough exposure to the revolutionary thinking of the time, he began "a course of reading which mingled miscellaneous subjects with the studies intended to qualify him for the Bar . . ." and began to take an active interest in the patriotic cause.
The "discouraging feebleness of his constitution," prevented him from joining the Revolutionary Army; however, he was elected in 1774 to the Committee of Safety which governed Orange County.
In 1776, he was elected to attend the general convention of Virginia. He served on a committee with George Mason. The committee drafted a new state constitution.
The political principles which governed the Convention's work were set forth in the famous Declaration of Rights, written by George Mason. Although Mason dominated the Convention, it was young Madison who was responsible for revising the Declaration of Rights section on freedom and religion. He insisted on deleting the word "toleration," remembering the recent persecutions of Baptist preachers in Orange and Culpepper counties under the royal government in Virginia
The theory of religious liberty, contained in the Declaration of Rights was revolutionary indeed. It originally stated: "That religion . . . can be governed only by reason and conviction, not by force or violence; and, therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience'" However, the use of the term "toleration" implied that freedom of religion was a privilege granted or withheld by the state according to the whim of rulers. Madison viewed freedom of conscience as a "natural and absolute right," and completely outside the jurisdiction of any government. Its origin was the law of nations.
Although the delegate from Orange County was "young and in the midst of distinguished and experienced members," he had successfully prevailed upon George Mason to amend the clause on religious liberty to read: "therefore all men are equally entitled to the free exercise of religion"–a most advanced concept at the time, since even in Virginia church and State were not yet separated. The public acceptance of Madison's views on freedom of conscience as a natural right laid the ground work for the great struggle over religious freedom in America.
Madison next served in the state legislature under Governor Patrick Henry. It was here that he began his lifelong friendship with Thomas Jefferson, who had recently completed drafting the Declaration of Independence. Madison failed to win reelection in 1777, largely because he failed to follow the practice of the day of supplying "spirituous liquors and other treats to his constituents." While Madison's opponents supplied the people with large quantities of liquor, the young Virginian felt determined to maintain the "purity" of republican government.
Although deprived of elective office, Madison's service to the new State did not stop. In November of 1777, his friends in the legislature appointed him to the Virginia Council of State. This body served as the governor's cabinet. At age twenty eight he was appointed a delegate to the Continental Congress in 1779. He traveled to Philadelphia in March of 1780 and continued to serve there until the end of the Revolutionary War. While in Philadelphia he helped organize the government of the United States under the Articles of Confederation, which became effective in 1781. He became a close confidant of Alexander Hamilton, who was a member of Congress from New York.
During Madison's six years of appointive office, he supplemented his theories of government with the lessons of experience. He became familiar with Virginia's foremost leaders and learned to cooperate with distinguished men from other states of Philadelphia. His interest in the common interests of all thirteen states grew year by year. He took part in issues of finance, national defense, international trade and relations, western lands and State sovereignty.
It was while Madison was serving in Congress that he became more than a Virginian statesman. Along with George Washington, he had become one of the most continental-minded men in America. The nature of his work in Philadelphia required him to think about the general welfare and happiness of not only Virginia but all thirteen states.
Since the Articles of Confederation provided that a delegate could serve only one term of three years, Madison was forced to return to Montpelier. His stay was short, however. In 1784 he was elected to the Virginia House of Delegates, and subsequently replaced Thomas Jefferson as leader of the radical party. Jefferson had been appointed American minister to France. During the next three years, Madison played a central role in disestablishing the Anglican Church and enacting several points of Jefferson's laws.
However, internal weakness in the Confederation threatened to make the state, "the sport of foreign politics." The Articles of Confederation were considered weak and ineffectual. Paper money was threatening the financial structure of several states. Trade wars between the states were continual. The debt of the Revolution and a dozen other problems plagued the new states.
Madison felt the governmental powers of the confederation should be strengthened to deal with these problems. His position led the legislature to appoint him a delegate to the Annapolis Trade Convention in September of 1786, to consider the changes which were necessary to facilitate greater commerce between the States.
Only five states sent representatives to the Annapolis Convention. The delegates which included Washington and Hamilton, therefore, decided to recommend to the thirteen states that a future Convention be convened to consider the "defects in the system of the Federal Government" and "to devise such further provisions as shall appear to them necessary to render the Constitution of the federal government (the Articles of Confederation) adequate to the exigencies of the Union," On February 21, 1787, Congress passed a resolution urging the states to appoint delegates to the Federal Convention to be held in May of 1787 in Philadelphia. The Virginia Legislature acted quickly and appointed George Washington, James Madison, Edmund Randolph, John Blair, George Mason, George Wythe, and James McClurg. Patrick Henry had been also appointed to go but declined.
After he was appointed a delegate to attend the Philadelphia Convention, Madison began a scholarly study of the various governments which had dotted the earth since the days of Adam. Jefferson sent Madison, during this period, a multitude of "treatises on the ancient or modern Federal Republics." He therefore, spent from October until the end of April preparing two memoranda entitled, "Notes of Ancient and Modern Confederacies," and "Vices of the Political System of the United States."
Madison's careful study of such historic confederations as the Lycian League, Amphictyonic Council, and the United Netherlands, furnished him with "no other light than that of beacons, which give warnings of the course to be shunned, without pointing out which ought to be pursued." His study of ancient and modern confederacies convinced him that it would be impossible to establish a federal system based upon models of the past. He also discovered that a republican government had never been organized in so vast an area as America, The political theorists had written that a stable republic could only operate in a small area.
It was Madison who accepted the challenge of fashioning a new system that would insure freedom and happiness to a people who lived in a large area. Madison invented the concept of an extended republic and it is one of his greatest accomplishments. The new type of federal state envisioned by Madison would rest upon majority rule yet provide adequate safeguards to protect minority groups in an area the size of America.
A month before the Convention began, Madison began elaborating on his new scheme in letters to George Washington and Edmund Randolph. He also began formulating a blueprint of the new government. This blueprint formed the basis of the Virginia Plan which would be introduced at the Federal Convention in Philadelphia. The concept of an extended republic was a brilliant intellectual achievement and earned for him the title not only of "Father of the Constitution," but Scholar-statesman as well.
Madison's theory of an extended republic was also a great triumph in the application of the Enlightenment view that politics is a science.
It was also Madison that persuaded George Washington to attend the Convention. He had declined an invitation to address the Society of the Cincinnati, composed of officers who had served in the Revolutionary War. Washington felt it would be inappropriate for him to attend another Convention in Philadelphia. In addition, his rheumatism was so severe that he could scarcely move in bed or raise his hand to his head. But the General did recover and attend the conference.
Washington's presence at the Convention proved to be of major importance. His prestige held the Convention together. If Washington's reputation and fame provided cohesiveness, it was Madison who furnished the substance. It was the Virginia Plan, drafted mostly by Madison, which when amended formed the structural basis of the new constitution.
Madison viewed the Federal Convention with great expectations; one "one which would be staked . , the cause of liberty throughout the world."
During the hot and humid summer that the Convention met, Madison, in the words of William Pierce, a fellow delegate from George," "took the lead in the management of every great question." He was one of the three main debaters at the Convention and spoke more often on the floor than any other member–161 times. Whether the Convention was meeting in open session or as a Committee of the Whole, Madison always came forward as "the best informed man on any point in the debate."
And it was the inexhaustible Madison that somehow managed to write out a daily report of all the debates in the Convention. A task, which he later admitted, almost killed him.
After the Constitution was signed, Madison traveled to New York City where Congress was meeting. He had been elected a second time to serve as a delegate. In Congress, Madison voted for acceptance of the new charter of liberty and for its submission to the states for ratification.
Madison's labors in behalf of the Constitution did not end there, however. The rigorous struggle for ratification had begun. During the winter of 1787-1788, the talented Virginian joined Alexander Hamilton and John Jay in writing a series of 85 essays explaining and defending the new Constitution. These essays were compiled into two small volumes entitled, The Federalist. Thomas Jefferson praised this valuable collection of writings late in 1788, saying, that it was in his opinion, "the best commentary on the principles of government which ever was written."
George Washington also praised The Federalist in a letter to Alexander Hamilton dated August 28, 1788: "That work will merit the Notice of Posterity, because in it are candidly and ably discussed the principles of freedom and the topics of government, which will be always interesting to mankind so long as they shall be connected in Civil Society."
Modern scholars have acclaimed The Federalist to be a classic exposition of the Constitution and one of the most important political treaties ever written in the history of the world. Madison wrote 29 of the 85 essays.
After completing the Federalist, Madison returned to Virginia where he would play another pivotal role in the adoption of the new Constitution. He was elected a member of the Virginia Ratifying Convention in the spring of 1788 and served as leader of the pro-constitution party. During this convention Madison would lock horns with the fiery and passionate Patrick Henry, one of the great orators of the Revolutionary period. However, Madison met the verbal blows of Henry and others with such rational reasoning that eight members of the opposition abandoned their prior position and voted for acceptance of the Constitution, It was approved by a margin of 89 to 79. During the debate Madison assured the delegates that he would work to incorporate a bill of rights into the Constitution.
After a heated debate in other States the Constitution was ratified in 1788. A great task now lay ahead–the formation of a new government under the Constitution.
Back in Virginia, Patrick Henry was still simmering over ratification of the Constitution when the Virginia legislature met in the fall of 1788 to appoint Senators to the new U.S, Congress Madison's name was proposed. Patrick Henry arose on the floor to denounce him as "unworthy of the confidence of the people and warned that his selection "would terminate in producing rivulets of blood throughout the land." As a result of Henry's opposition, Madison was not appointed U.S. Senator. Henry continuing his personal war against Madison, endeavored to block his election by the people to the U.S. House of Representatives by rearranging the districting of the State.
Madison wrote to Washington that he was "disposed to serve the public," however, and carried on a vigorous and successful election campaign. He won by a majority of three hundred votes.
In 1789, Madison began the first of four terms as a Congressman from Virginia. One of his first contributions was to help President Washington write his inaugural address at the beginning of his administration. Throughout Washington's two terms Madison served as a close personal adviser to the President. Later, he would help draft Washington's famous "Farewell Address."
From the very first day of Congress, Madison leaped into the affairs of government with his usual dedication and enthusiasm. There was no act of Congress during the first session that he did not participate in He played a major role in drafting the legislation that created the various executive departments of the government and sponsored the first ten amendments to the Constitution. Under his careful guidance these amendments passed both houses of Congress and became known as the Bill of Rights.
The First Congress was plagued by a "want of precedents" which made business difficult and time-consuming. Many times Madison expressed the notion that "we are in a wilderness without a single footstep to guide us." Yet, the foundation of the government was erected, a "more perfect union" was set in place and a new era launched.
Before long, however, Madison became greatly alarmed over a new trend of events in the capitol. The trouble lay with his old colleague Alexander Hamilton. Hamilton had been appointed Secretary of the Treasury and was attempting to transform the new Republic into an oligarchy. Up to his old tricks, Hamilton began proposing a package of legislation designed to unite the moneyed and propertied interests of the eastern seaboard into a new administrative party. At the same time, he was laboring to centralize authority in the executive branch and make Congress subservient to it. A web of speculation and graft was spun around certain senators and congressmen. As Madison watched Hamilton's program take shape, he became alarmed.
At the Constitutional Convention, Madison worked diligently to create a charter of liberty in which "the interests and rights of every class of citizens should be duly represented and understood." Now he was watching Hamilton attempt to establish a governing aristocracy at the expense of the people and the clear mandates of the Constitution.
Before the end of the first Congress, Madison launched an attack upon Hamilton's policies and program as anti-republican and "unconstitutional." His efforts were not in vain. He was instrumental in saving the Constitution, and ensuring that a republican form of government continued. However, the "rich, the wise, and the well born" were successful in establishing the first Bank of the United States, patterned after the Bank of England.
Madison also joined hands with Thomas Jefferson who was violently opposed to Hamilton's program. In speeches, letters, and essays, Madison hammered away at Hamilton's policies, stressing that it was not the Federal Union which was at fault but certain individuals in the administration, The Constitution, he insisted, was sound, the trouble lay in Hamilton's perverted "interpretation of it.
Thus, an aroused party which could have evolved into revolutionary tendencies was mobilized by the astute Virginian under the banner of loyalty and veneration of the Constitution. Although Jefferson would assume the title of party chief, it was Madison who had formulated the principles of opposition. Once again Madison played a pivotal role in relation to the Constitution. The determined opposition to Hamilton's policies by the two Virginians later led to the election of Thomas Jefferson as President in 1801.
In 1794, another important event occurred in the life of James Madison. At the age of forty-three, he married Mrs. Dolly Payne Todd, the twenty-six year-old widow of a Philadelphia lawyer. Although the Madisons had no children of their own, they did rear her son,
Madison and his wife, Dolly, retired to Montpelier in 1797 after his term expired, but he did not remain inactive long. Infuriated at the passage of Alien and Sedition Acts under President John Adams, Madison wrote the Virginia Resolution, declaring the Acts grossly violated the U.S. Constitution. It was passed by the Virginia legislature in 1798. Kentucky passed a similar resolution prepared by Thomas Jefferson.
During 1799 and 1800, Madison served once again in the Virginia state legislature.
In 1801 Madison was one of Virginia's presidential electors, voting for Thomas Jefferson, the head of the newly formed Republican Party. Jefferson subsequently appointed his close friend and trusted adviser Secretary of State. Since the President's wife had died earlier, Dolly Madison became the First Lady and hostess for the Administration.
Madison's greatest accomplishment of the Jefferson era was his supervision of the negotiations resulting in the Louisiana Purchase. This act extended the concept of republican government to the Pacific ocean. Throughout Jefferson's two terms in office, Secretary Madison was called upon to settle difficulties with France and Britain due to the recurring wars in Europe. Madison consistently sought to maintain American neutrality.
In 1808, Madison was chosen to succeed Jefferson as President. His running-mate was George Clinton of New York, who was Vice-President during Jefferson's second term. Madison defeated Charles Cotesworth Pinckney, a former delegate to the Constitutional Convention from South Carolina, and the Federalist Party's nominee for president by an electoral vote of 122 to 47. Relationships with Great Britain steadily worsened during Madison's first term. He attempted to preserve American neutrality in the midst of the war between England and France, however, near the end of this term he became convinced that war with England was again inevitable. The maritime rights and economic independence of America was at risk.
On June 1, 1812 the President asked Congress for a declaration of war against England. Two weeks later, on June 18th, Congress declared war. Later that same year Madison was elected to his second term, despite the opposition of the Federalists to the war.
The war with England lasted for two years because the British were busily engaged with Napoleon's troops on the European Continent, however, after the defeat of Napoleon in 1814, British soldiers began arriving in America. A British army landed in Maryland and defeated U.S. troops at the Battle of Bladensburg in August of 1814.
A letter from Mrs. Madison, written to her sister on August 23, and 24, 1814, presents an interesting look at the war.
"Dear Sister,–My husband left me yesterday morning to join General Winder.–He inquired anxiously whether I had courage, or firmness, to remain in the president's house until his return, on the morrow, or succeeding day, and on my assurance that I had no fear but for him and the success of our army, he left me, beseeching me to take care of myself, and of the cabinet papers, public and private.–I have since received two dispatches from him, written with a pencil; the last is alarming, because he desires I should be ready at a moment's warning to enter my carriage and leave the city; that the enemy seemed stronger than had been reported, and that it might happen that they would reach the city, with intention to destroy it . . , I am accordingly ready; I have pressed as many cabinet papers into trunks as to fill one carriage; our private property must be sacrificed, as it is impossible to procure wagons for its transportation. I am determined not to go myself, until I see Mr. Madison safe and he can accompany me,–as I hear of much hostility towards him . . . disaffection stalks around us. , . , My friends and acquaintances are all gone....
"Wednesday morning, twelve o'clock.–Since sunrise I have been turning my spy-glass in every direction and watching with unwearied anxiety, hoping to discern the approach of my dear husband and his friends; but, alas, I can descry only groups of military wandering in all directions, as if there was a lack of arms, or of spirit to fight for their own firesides'
"Three o'clock.–Will you believe it, my sister? We have had a battle or skirmish near Bladensburgh, and I am still here within sound of the cannon' Mr. Madison comes not; may God protect him' Two messengers covered with dust, come to bid me fly; but I wait for him. . . . At this late hour, a wagon has been procured; I have had it filled with the plate and most valuable portable articles belonging to the house; whether it will reach its destination, the Bank of Maryland, or fall into the hands of the British soldiery, events must determine.
"Our kind friend, Mr. Carroll, has come to hasten my departure, and is in a very bad humor with me, because I insist on waiting until the large picture of General Washington is secured, and it requires to be unscrewed from the wall. This process was found too tedious for these perilous moments; I have ordered the frame to be broken and the canvas taken out; it is done.–and the precious portrait placed in the hands of two gentlemen of New York, for safe keeping. And now, dear sister, I must leave this house, or the retreating army will make me a prisoner in it, by filing up the road I am directed to take. When I shall again write to you' or where I shall be tomorrow, I cannot tell!!!"
After the Battle of Bladensburg the British captured Washington, burned the Capitol and parts of the White House; however, Dolly Madison escaped along with her portrait of Washington in time to prevent her capture by foreign troops. At the time the Capitol was ransacked by the British, peace negotiations were underway in Europe and a peace treaty was signed in December of 1814. Word of the treaty did not reach America in time to prevent the Battle of New Orleans in January of 1815, however.
The last two years of Madison's second term were largely uneventful as Westward expansion continued and new manufacturing industries continued to spring up in the expansive country.
In 1816 the President nominated James Monroe as Secretary of State, however, the real intent was to position him for the presidency. Monroe easily won the election over Rufus King, also a former delegate to the Constitutional Convention. A few years later Madison would advise Monroe in issuing his famous document known as the "Monroe Doctrine."
With the conclusion of his second term as President, Madison ended forty years of public service in the Republic.
Upon retiring to Montpelier in 1817, Madison was to spend twenty years in retirement. He devoted himself to his farm, reading and editing of his "Notes" on the debates of the Constitutional Convention. He had long ago decided not to make them public until after the death of all the delegates to the Convention Madison was clearly allied with Jefferson in the establishment of the University of Virginia and after the death of his close personal friend in 1826, he became its rector. In 1829 Madison was persuaded to serve as co-chairman of a state convention to draft a new constitution for Virginia.
When he was close to his eightieth birthday the old sage of Montpelier dictated a short autobiography.
The former President lived peacefully with Dolly to the age of eighty-five, full of faith in the future of the Republic.
On the morning of June 28, 1836, the venerable scholar-statesman was helped to his favorite chair. You can almost envision their final conversation.
"Are you feeling all right dear?" Dolly asked.
"Yes, I'm fine," the senior Madison responded.
Dolly sat down beside her beloved husband and put her warm hand upon his. He embraced her hand and looked out the large window at the rolling hills nearby.
Suddenly the room grew quiet. Dolly noticed a tear running down the wrinkled cheek of her husband. Then a second tear. "What's the matter?" she inquired.
"Nothing, I was just remembering the Revolutionary War, my acquaintances with General Washington and the delegates at the Constitutional Convention, the formation of the new government, and my friendship with Thomas Jefferson." he responded. "I've had a wonderful life." "It's not over yet," Dolly said reassuringly.
"Ah, its late, very late for an old man," he stated. "Why don't you run along and tend to your morning business."
"Okay, dear, I do love you."
"And I love you too."
Dolly stood up and kissed her husband on the forehead and walked into the kitchen area.
Madison folded his hands, leaned back, closed his eyes slowly. He took a long, deep breath. The world became still. A moment later his noble spirit departed. The sun shone brightly. And somewhere beyond its brilliant rays, the Creator of all welcomed James Madison with these memorable words: "Well done, my good and faithful servant. Enter into thy rest."
5. Workshop of Liberty–An Interview with James Madison
James Madison, one of America's foremost scholar-statesmen is often called the "Father of the Constitution" for the role which he played in the drafting and ratification of the Constitution and the Bill of Rights. Let us go back into time and interview this distinguished Framer and solicit his views concerning the document he helped draft. Madison's comments were taken from his writings.
Chadwick: Mr. Madison, would you describe the state of the Union as you were preparing to meet in Philadelphia in the Federal Convention of 1787?
Madison: At the date of the Convention, the aspect and retrospect of the political condition of the United States could not but fill the public mind with a gloom which was relieved only by a hope that so select a body would devise an adequate remedy for the existing and prospective evils so impressively demanding it.
It was seen that the public debt, rendered so sacred by the cause in which it had been incurred, remained without any provision for its payment. The reiterated and elaborate efforts of Congress to procure from the States a more adequate power to raise the means of payment, had failed. The effect of the ordinary requisitions of Congress had only displayed the inefficiency of the authority making them, none of the States having duly complied with them, some having failed altogether, or nearly so; while in one instance, that of New Jersey, a compliance was expressly refused; nor was more yielded to the expostulations of members of Congress deposed to her Legislature, than a mere repeal of the law, without a compliance. The want of authority in Congress to regulate commerce had produced in foreign nations, particularly Great Britain, a monopolizing policy, injurious to the trade of the United States, and destructive to their navigation; the imbecility, and anticipated dissolution, of the Confederacy extinguishing all apprehensions of a countervailing policy on the part of the United States. The same want of a general power over commerce led to an exercise of the power, separately, by the States, which not only proved abortive, but engendered rival, conflicting and angry regulations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighboring ports, and to coerce a relaxation of the British monopoly of the West India navigation, which was attempted by Virginia, the States having ports for foreign commerce, taxed and irritated the adjoining States, trading through them, as New York, Pennsylvania, Virginia, and South Carolina. Some of the States, as Connecticut, taxed imports from others, as from Massachusetts, which complained in a letter to the Executive of Virginia, and doubtless to those of other States. In sundry instances, as of New York, New Jersey, Pennsylvania and Maryland, the navigation laws treated the citizens of other States as aliens. In certain cases the authority of the Confederacy was disregarded, as in violation, not only of the Treaty of Peace, but of treaties with France and Holland; which were complained of to Congress. In other cases the Federal authority was violated by treaties and war with Indians, as by Georgia; by troops raised and kept up without the consent of Congress, as by Massachusetts; by compacts without the consent of Congress, as between Pennsylvania and New Jersey, and between Virginia and Maryland. From the Legislative Journals of Virginia it appears, that a vote refusing to apply for a sanction of Congress was followed by a vote against the communication of the compact to Congress. In the internal administration of the States, a violation of contracts had become familiar, in the form of depreciated paper made a legal tender, of property substituted for money, of installment laws, and of the occlusions of the courts of justice, although evident that all such interferences affected the rights of other States, relatively creditors, as well as citizens creditors within the State. Among the defects which had been severely felt was want of an uniformity in cases requiring it, as laws of naturalization and bankruptcy, a coercive authority operating on individuals, and a guarantee of the internal tranquility of the States.
As a natural consequence of this distracted and disheartening condition of the Union, the Federal authority had ceased to be respected abroad, and dispositions were shown there, particularly in Great Britain, to take advantage of its imbecility, and to speculate on its approaching downfall. At home it had lost all confidence and credit; the unstable and unjust career of the States had also forfeited the respect and confidence essential to order and good government, involving a general decay of confidence and credit between man and man. It was found, moreover, that those least partial to popular government, or most distrustful of its efficacy, were yielding to anticipations, that from an increase of the confusion a government might result more congenial with their taste or their opinions; whilst those most devoted to the principles and forms of Republics were alarmed for the cause of liberty itself, at stake in the American experiment, and anxious for a system that would avoid the inefficacy of a mere confederacy, without passing into the opposite extreme of a consolidated government. It was known that there were individuals who had betrayed a bias towards monarchy, and there had always been some not unfavorable to a partition of the Union into several confederacies; either from a better chance of figuring on a sectional theatre, or that the sections would require stronger governments, or by their hostile conflicts lead to a monarchial consolidation. The idea of dismemberment had recently made its appearance in the newspapers.
Such were the defects, the deformities, the diseases and the ominous prospects, for which the Convention were to provide a remedy, and which ought never to be overlooked in expounding and appreciating the constitutional charter, the remedy that was provided.
Chadwick: You were close friends with many of the leading figures of the Revolutionary period. Would you describe your feelings concerning the members of the Federal Convention?
Madison: Whatever may be the judgment pronounced on the competency of the architects of the Constitution, or whatever may be the destiny of the edifice prepared by them, I feel it a duty to express my profound and solemn conviction, derived from my intimate opportunity of observing and appreciating the views of the Convention, collectively and individually, that there never was an assembly of men, charged with a great and arduous trust, who were more pure in their motives, or more exclusively or anxiously devoted to the object committed to them, than were the members of the Federal Convention of 1787, to the object of devising and proposing a constitutional system which should best supply the defects of that which it was to replace, and best secure the permanent liberty and happiness of their country.
Chadwick: You made detailed notes concerning the constitutional convention. Would you elaborate on how you performed this monumental task?
Madison: In pursuance of the task I had assumed, I chose a seat in front of the presiding member, with the other members on my right and left hands. In this favorable position for all that passed, I noted, in terms legible and in abbreviations and marks intelligible to myself, what was read from the Chair or spoken by the members; and losing not a moment unnecessarily between the adjournment and reassembling of the Convention, I was enabled to write out my daily notes during the session, or within a few finishing days after its close, in the extent and form preserved in my own hand on my files.
In the labor and correctness of this I was not a little aided by practice, and by a familiarity with the style and the train of observation and reasoning which characterized the principal speakers. It happened, also, that I was not absent a single day, nor more than a casual fraction of an hour in any day, so that I could not have lost a single speech, unless a very short one.
It may be proper to remark, that, with a very few exceptions, the speeches were neither furnished, nor revised, nor sanctioned, by the speakers, but written out from my notes, aided by the freshness of my recollections.
Chadwick: Do you feel that the Almighty played a role in the formation of our charter of liberty?
Madison: The real wonder is that so many difficulties should have been surmounted during the Federal Convention, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any many of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.
Chadwick: At Philadelphia you and your colleagues established a republican form of government. How would you define a republic?
Madison: We may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure for a limited period, or during good behavior. It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans and claim for their government the honorable title of republic. It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.
Chadwick: What are the main differences between a republic and a democracy?
Madison: The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens and greater sphere of country over which the latter may be extended.
The effect of the first difference is, on the one hand, to refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by he people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people. The question resulting is, whether small or extensive republics are most favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter.
Chadwick: What is the natural limit of a republic?
Madison: As the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions, so the natural limit of a republic is that distance from the center which will barely allow the representatives of the people to meet as often as may be necessary for the administration of public affairs. Can it be said that the limits of the United States exceed this distance? It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years the representatives of the States have been almost continually assembled, and that the members from the most distant States are not chargeable with greater intermissions of attendance than those from the States in the neighborhood of Congress.
Chadwick: Is the national government limited or unlimited in its powers?
Madison: In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other objects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled by the principle of self-preservation to reinstate them in their proper jurisdiction.
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
We have seen that in the new government, as in the old, the general powers are limited; and that the states, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.
Chadwick: What is the genius of republican liberty?
Madison: The genius of republican liberty seems to demand on one side not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.
Chadwick: The Constitution separates the three major departments of government, yet, blends them together in an interesting working relationship. Would you briefly explain how the doctrine of separation of powers is maintained by a system of checks and balances?
Madison: In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; second, because the permanent tenure by which the appointments are held in that department must soon destroy all sense of dependence on the authority conferring them.
It is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.
But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other–that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?
Chadwick: How would you define a tyranny as it relates to constitutional government?
Madison: One of the principal objections inculcated by the more respectable adversaries to the Constitution is its supposed violation of the political maxim that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
Chadwick: Do you feel that frequent elections are important in a republican form of government?
Madison: The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one is such a limitation of the term of appointments as will maintain a proper responsibility to the people.
Let me now ask what circumstance there is in the constitution of the House of Representatives that violates the principles of republican government, or favors the elevation of the few on the ruins of the many? Let me ask whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens?
Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State.
Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people. If we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents.
Chadwick: What role does the Constitution play in relation to the world?
Madison: "The free system of government we have established is so congenial with reason, with common sense, and with a universal feeling, that it must produce approbation and a desire of imitation, as avenues may be found for truth to the knowledge of nations. Our Country, if it does justice to itself, will be the workshop of liberty to the Civilized World, and do more than any other for the uncivilized."
Chadwick: What role does virtue play in government?
Madison: I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks–no form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.
Chadwick: You are a key architect of republican government in America. Would you outline the advantages of this form of government and explain how it controls factions?
Madison: Among the numerous advantages promised by a well–constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which' he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have~everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated 'tine danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation,- the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed on a candid review of our situation, that some of the distresses under-which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations. By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.
There are two methods of curing the mischiefs of faction: the one, by removing its caw; the other, by controlling its effects.
There are again two methods of removing the caw of faction: the one,- by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.
It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an ailment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.
The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for preeminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.
No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of cases on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets. It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.
The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects.
If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.
By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined to"ether, that is, in proportion as their efficacy becomes needful.
From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies 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 been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.
A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.
The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.
The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:
In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.
In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters.
It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.
The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety, of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.
Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,–is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest. In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.
The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.
In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.
Chadwick: The Constitution divides the sovereignty of the Federal Government and the States. When there are controversies between the two, what role would the Supreme Court play?
Madison: Other Governments present an individual and indivisible sovereignty. The Constitution of the United States divides the sovereignty; the portions surrendered by the States composing the Federal sovereignty over specified subjects; the portions retained forming the sovereignty of each over the residuary subjects within its sphere. If sovereignty cannot thus be divided, the political system of the United States is a chimera, mocking the vain pretensions of human wisdom. If it can be so divided, the system ought to have a fair opportunity of fulfilling the wishes and expectations which cling to the experiment.
Nothing can be more clear than that the Constitution of the United States has created a Government, in as strict a sense of the term as the governments of the States created by their respective constitutions. The Federal Government has, like the State governments, its Legislative, its Executive, and its Judiciary departments. It has, like them, acknowledged cases in which the powers of these departments are to operate; and the operation is to be directly on persons and things in the one Government as in the others. If in some cases the jurisdiction is concurrent as it is in others exclusive, this is one of the features constituting the peculiarity of the system.
In forming this compound scheme of Government, it was impossible to lose sight of the question, What was to be done in the event of controversies, which could not fail to occur, concerning the partition line between the powers belonging to the Federal and to the State governments. That some provision ought to be made, was as obvious and as essential as the task itself was difficult and delicate....
The provision immediately and ordinarily relied on is manifestly the Supreme Court of the United States, clothed as it is with a jurisdiction "in controversies to which the United States shall be a party," the court itself being so constituted as to render it independent and impartial in its decisions; while other and ulterior resorts would remain, in the elective process, in the hands of the people themselves, the joint constituents of the parties, and in the provision made by the Constitution for amending itself. All other resorts are extra and ultra constitutional, corresponding to the ultima ratio of nations renouncing the ordinary relations of peace.
If the Supreme Court of the United States be found or deemed not sufficiently independent and impartial for the trust committed to it, a better tribunal is a desideratum. But, whatever this may be, it must necessarily derive its authority from the whole, not from the parts; from the States in some collective, not individual capacity. And as some such tribunal is a vital element, a sine qua non, in an efficient and permanent Government, the tribunal existing must be acquiesced in until a better or more satisfactory one can be substituted....
Chadwick: You have stated that the "powers delegated by the . . Constitution are few and defined." Do you feel that Federal public works and similar projects are constitutional?
Madison: In answering that question, let me read to you a veto message which I sent to the House of Representatives concerning public works, dated March 3, 1817.
Having considered the bill this day presented to me entitled "An act to set apart and pledge certain funds for internal improvements," and which sets apart and pledges funds "for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense," I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with- the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause "to provide for the common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
A restriction of the power "to provide for the common defense and general welfare" to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.
If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and a reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
Chadwick: What role should government play as it relates to religion?
Madison: Whilst I was honored with the Executive Trust I found it necessary on more than one occasion to follow the example of predecessors. But I was always careful to make the Proclamations absolutely indiscriminate, and merely recommendatory; or rather mere designations of a day, on which all who thought proper might unite in consecrating it to religious purposes, according to their own faith & forms. In this sense, I presume you reserve to the Gov' a right to appoint particular days for religious worship throughout the State, without any penal sanction enforcing the worship....
Notwithstanding the general progress made within the two last centuries in favour of ... [religious] liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Govt & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded ag". And in a Government of opinion, like ours, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in strewing that religion & Gov' will both exist in greater purity, the less they are mixed together.
It was the belief of all sects at one time that the establishment of Religion by law, was right & necessary; that the true religion ought to be established in exclusion of every other; and that the only question to be decided was which was the true religion. The example of Holland proved that a toleration of sects, dissenting from the established sect, was safe & even useful. The example of the Colonies, now States, which rejected religious establishments altogether, proved that all Sects might be safely & advantageously put on a footing of equal & entire freedom.... We are teaching the world the great truth that Govt do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Govt.
Chadwick: After the Constitution was drafted there was considerable concern that it lacked a bill of rights. Were you in favor of including a bill of rights in the Constitution?
Madison: My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice. I have not viewed it in an important light.
1. because I conceive that in a certain degree . . . the rights in question are reserved by the manner in which the federal powers are granted.
2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests, opened a door for Jews Turks & infidels.
3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.
4. because experience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current.... Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to.... Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince.... The difference so far as it relates to the point in question–the efficacy of a bill of rights in controuling abuses of power–lies in this: that in a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect, as a standard for trying the validity of public acts, and a signal for rousing & uniting the superior force of the community; whereas in a popular Government, the political and physical power may be considered as vested in the same hands, that is in a majority of the people, and, consequently the tyrannical will of the Sovereign is not [to] be controuled by the dread of an appeal to any other force within the community.
What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following . . .
1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.
2. Altho it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be a good ground for an appeal to the sense of the community. Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers may by gradual & well timed advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard against it, especially when the precaution can do no injury. At the same time I must own that I see no tendency in our Governments to danger on that side.
It has been remarked that there is a tendency in all Governments to an augmentation of power at the expence of liberty. But the remark as usually understood does not appear to me well founded. Power when it has attained a certain degree of energy and independence goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and . . . is . . . applicable to the Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which divides these extremes should be so inaccurately defined by experience.
Supposing a bill of rights to be proper . . . I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public, and after repeated violations in extraordinary cases they will lose even their ordinary efficacy. Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Hab. Corp. be dictated by the alarm, no written prohibitions on earth would prevent the measure.... The best security against these evils is to remove the prextext for them.
Chadwick: Many people feel that the Constitutional Convention exceeded its authority when it rejected the Articles of Confederation and drafted a new Constitution. Do you feel the Convention was authorized to draft and propose a new Constitution?
Madison: The powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. As all of these, however, had reference, either to the recommendation from the meeting at Annapolis, in September, 1786, or to that from Congress, in February, 1787, it will be sufficient to recur to these particular acts.
The act from Annapolis recommends the "appointment of commissioners to take into consideration the situation of the United States; to devise such further provisions as shall appear to them necessary to render the Constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same."
The recommendatory act of Congress is in the words following:
"WHEREAS, There is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation; as a mean to remedy which, several of the States, and particularly the State of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States a firm national government:
"Resolved,–That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union."
From these two acts, it appears, 1st, that the object of the convention was to establish, in these States, a firm national government; 2d, that this government was to be such as would be adequate to the exigencies of government and the preservation of the Union; 3d, that these purposes were to be effected by alterations and provisions in the articles of Confederation, as it is expressed in the act of Congress, or by such further provisions as should appear necessary, as it stands in the recommendatory act from Annapolis; 4th, that the alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the former and confirmed by the latter.
From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a national government, adequate to the exigencies of government, and of the Union; and to reduce the articles of Confederation into such form as to accomplish these purposes.
There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.
Suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a national and adequate government could not possibly, in the judgment of the convention, be affected by alterations and provisions in the articles of Confederation; which part of the definition ought to have been embraced, and which rejected? Which was the more important, which the less important part? Which the end; which the means? Let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved; or that an adequate government should be omitted, and the articles of Confederation preserved. Let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed.
But is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no alterations or provisions in the articles of the Confederation could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention?
No stress, it is presumed, will, in this case, be laid on the title; a change of that could never be deemed an exercise of ungranted power. Alterations in the body of the instrument are expressly authorized. New provisions therein are also expressly authorized. Here then is a power to change the title; to insert new articles; to alter old ones. Must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? Those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of alterations and further provisions, and that which amounts to a transmutation of the government. Will it be said that the alterations ought not to have touched the substance of the Confederation? The States would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some substantial reform had not been in contemplation. Will it be said that the fundamental principles of the Confederation were not within the purview of the convention, and ought not to have been varied? I ask, What are these principles ? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed. Do they require that the members of the government should derive their appointment from the legislatures, not from the people of the States? One branch of the new government is to be appointed by these legislatures; and under the Confederation, the delegates to Congress may all be appointed immediately by the people, and in two States are actually so appointed. Do they require that the powers of the government should act on the States, and not immediately on individuals? In some instances, as has been shown, the powers of the new government will act on the States in their collective characters. In some instances, also, those of the existing government act immediately on individuals. In cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the Indians; of claims under grants of land by different States; and, above all, in the case of trials by courts-marshal in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate;–in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens. Do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the States? The Confederation itself authorizes a direct tax, to a certain extent, on the post office. The power of coinage has been so construed by Congress as to levy a tribute immediately from that source also. But pretermitting these-instances, was it not an acknowledged object of the convention and the universal expectation of the people, that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue? Had not Congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the Confederation? Had not every State but one; had not New York herself, so far complied with the plan of Congress as to recognize the principle of the innovation? Do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.
The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old.
In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation of the legislatures of all the States, they have reported a plan which is to be confirmed by the people, and may be carried into effect by nine States only. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a majority of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people—an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticized the powers of the convention, I dismiss it without further observation.
The third point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority.
In the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment of a Constitution for the United States. We have seen in what manner they have borne the trial even on that supposition. It is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the States, and so understood by the convention; and that the latter have accordingly planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. This reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention.
Let us view the ground on which the convention stood. It may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. It could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. They had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment, the alacrity with which the proposition, made by a single State (Virginia), towards a partial amendment of the Confederation, had been attended to and promoted. They had seen the liberty assumed by a very few deputies from a very few States, convened at Annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen States. They had seen, in a variety of instances, assumptions by Congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,"` since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some informal and unauthorized propositions, made by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the States were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that conventions were elected in the several States for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. They must have borne in mind, that as the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. It might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies.
Had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? Or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve States who usurped the power of sending deputies to the convention, a body utterly unknown to their constitutions; for Congress, who recommended the appointment of this body, equally unknown to the Confederation; and for the State of New York, in particular, which first urged and then complied with this unauthorized interposition ?
But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a Constitution for their country: does it follow that the Constitution ought, for that reason alone, to be rejected? If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? The prudent inquiry, in all cases, ought surely to be, not so much from whom the advice comes, as whether the advice be good.
The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America. How far this character is due to the Constitution, is the subject under investigation.
Chadwick: A number of prominent individuals in America feel that a republic can only flourish in a small area. You are a proponent of the idea of an extended republic. Is republican government limited to a small geographic area?
Madison: We have seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberty of the Old World, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. All that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the Union embraces. A few observations on this subject will be the more proper, as it is perceived that the adversaries of the new Constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find.
The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person, in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region..
To this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. Being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient Greece and modern! Italy. Under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory.
Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. If Europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentrated, and its force directed to any object which the public good requires, America can claim the merit of making the- discovery the basis of unmixed and extensive republics. It is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration.
As the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the centre which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. Can it be said that the limits of the United States exceed this distance? It ~rill not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled, and that the members from the most distant States are not chargeable with greater intermissions of attendance than those from the States in the neighborhood of Congress. That we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the Union. The limits, as fixed by the treaty of peace, are: on the east the Atlantic, on the south the latitude of thirty-one degrees, on the west the Mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. The southern shore of Lake Erie lies below that latitude. Computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. Taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths. The mean distance from the Atlantic to the Mississippi does not probably exceed seven hundred and fifty miles. On a comparison of this extent with that of several countries in Europe, the practicability of rendering our system commensurate to it appears to be demonstrable. It is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled; or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power. Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the Union.
Favorable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory.
In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled; by the principle of self preservation, to reinstate them in their proper jurisdiction.
A second observation to be made is that the immediate object of the federal Constitution is to secure the union of the thirteen primitive States, which we know to be practicable; and to add to them such other States as may arise in their own bosoms, or in their neighborhoods' which we cannot doubt to be equally practicable. The arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will render more equal to the task.
Let it be remarked, in the third place, that the intercourse throughout the Union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travelers will 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 districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.
A fourth and still more important consideration is, that as almost every State will, on one side or other, be a frontier, and will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the States which lie at the greatest distance from the heart of the Union, and which, of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. It may be inconvenient for Georgia, or the States forming our western or northeastern borders, to send their representatives to the seat of government; but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger. If they should derive less benefit, therefore, from the Union in some respects than the less distant States, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout.
I submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellow-citizens of one great, respectable, and flourishing empire. Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. No, my countrymen, shut your ears against this unhallowed language. Shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union, and excite horror at the idea of their becoming aliens, rivals, enemies. And if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces, in order to preserve our liberties and promote our happiness. But why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the People of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness. Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide.
6. The Federal Constitution– An Interview with Alexis de Tocqueville
In 1831 a renowned Frenchman named Alexis de Tocqueville traveled to the United States to study America's penal system. He was so impressed with the American political structure that he returned to France and wrote his famous two-volume work entitled, Democracy in America. Tocqueville's treatise is universally accepted as a masterful interpretation of the American experiment in self-government.
Let us go back into time, interview this talented observer of democracy in America, and solicit his views on the U.S. Constitution. De Tocqueville's comments were taken from his writings.
Chadwick: What is your view toward the founding of the American Republic and the framers of the Constitution?
De Tocqueville: The thirteen colonies which simultaneously shook off the English yoke at the end of the last century had the same religion, language, and mores, and almost the same laws; they fought against a common enemy; they must therefore have had strong reasons for uniting closely with each other and becoming absorbed in one and the same nation.
But each of them, having always had a separate existence and a government within its control, had created peculiar interests and usages and revolted against a solid and complete union which would have led to its individual importance being merged in the greatness of the Union. Hence there were two opposite tendencies: one drove the Anglo-Americans to unite, while the other induced them to divide.
As long as the war with the mother country continued, necessity made the principle of union prevail. And though the laws by which this union was constituted were defective, the link subsisted in spite of them.
But as soon as peace was concluded, the defects of this legislation stood revealed: the state seemed to dissolve all at once. Each colony, become an independent republic, assumed an absolute sovereignty. The federal government, condemned to weakness by its own Constitution and no longer sustained by the sense of public danger, witnessed the outrages offered to its flag by the great nations of Europe, while it could not even find resources sufficient to stand up to the Indian tribes or to pay the interest on the debts contracted during the War of Independence. On the verge of destruction, it officially declared itself powerless and appealed to the constituent power.
If ever there was a short moment when America did rise to that climax of glory where the proud imagination of her inhabitants would constantly like us to see her, it was at that supreme crisis when the national authority had in some sort abdicated its dominion.
The spectacle of a nation struggling energetically to obtain its independence is one which every century has seen.
But that which is new in the history of societies is to see a great people, warned by its lawgivers that the wheels of government are stopping, turn its attention on itself without haste or fear, sound the depth of the ill, and then wait for two years to find the remedy at leisure, and then finally, when the remedy has been indicated, submit to it voluntarily without its costing humanity a single tear or drop of blood.
When the inadequacy of the first federal Constitution was first felt, that outburst of political passions which gave birth to the Revolution had somewhat calmed down, but all the great men then thrown to the front were still alive. That proved a double blessing for America. The assembly responsible for drafting the second Constitution was not numerous, and it included the men of greatest intelligence and noblest character ever to have appeared in the New World. George Washington presided over it.
After long and mature deliberation, this national commission finally offered for the people's acceptance that body of organic laws which is still in force in the Union now. All the states adopted it in turn. The new federal government took up its duties in 1789, after an interregnum of two years. Chadwick: What is the cause of the superiority of the Constitution?
De Tocqueville: The great cause of the superiority of the federal Constitution lies in the actual character of the lawgivers.
At the time when it was drafted, the ruin of the Confederation appeared imminent: that, one may say, was a consideration present before all eyes. In that extremity the people chose, not perhaps the men it loved best, but those it held in highest esteem.
I have already noted above that the lawgivers of the Union were almost all remarkable for their enlightenment, and even more remarkable for their patriotism.
They had all grown up at a time of social crisis, when the spirit of liberty had been in constant conflict with a strong and dominating authority. When the struggle was over, and when, as is usual, the passions aroused in the crowd were still directed against dangers which had long ceased to exist, these men called a halt; they looked at their country more calmly and with greater penetration; they were aware that a final revolution had been accomplished and that henceforth the perils threatening the people could only spring from abuses of liberty. What they thought, they had the courage to say; because they felt in the bottom of their hearts a sincere and ardent love for that same liberty, they dared to speak about restraining it, because they were sure they did not want to destroy it."
Chadwick: What was one of the greatest difficulties that the framers faced in the Federal Convention?
De Tocqueville: The first difficulty which the Americans had to face was how to divide sovereignty so that the various states of the Union continued to govern themselves in everything to do with internal prosperity but so that the whole nation, represented by the Union, should still be a unit and should provide for all general needs. That was a complicated question and hard to resolve. It was impossible to define in advance, completely and exactly, the share of authority which should go to each of these governments dividing the sovereignty.
Who could foresee every detail of a nation's life?
The duties and rights of the federal government were simple and easy to define because the Union had been formed with the object of providing for certain great general needs. But the rights and duties of the governments of the states were many and complicated, for such a government was involved in all the details of social life.
Therefore the attributes of the federal government were carefully defined, and it was declared that everything not contained within that definition returned to the jurisdiction of state governments. Hence state authority remained the rule and the federal government the exception.
It was foreseen that in practice questions would arise about the exact limits of this exceptional authority and that it would be dangerous to leave the solution of these questions to the ordinary courts established in the different states by the states themselves. So they created a federal Supreme Court, a unique tribunal one of whose prerogatives was to maintain the division of powers appointed by the Constitution between these rival governments.
Chadwick: How were the legislative powers organized in the Constitution?
De Tocqueville: The federal legislative body of the Union was composed of a Senate and a House of Representatives.
The spirit of conciliation caused diverse rules to be followed in the formation of each of these assemblies.
When a federal constitution was desired, two opposing interests were brought face to face. These two interests had given rise to two views.
One party wanted to make the Union a league of independent states, a sort of congress where representatives of distinct peoples came to discuss certain matters of common interest.
The other party wished to unite all the inhabitants of the former colonies in a single people and to give them a government which, though its sphere would be limited, could act within that sphere as the one and only representative of the nation. The practical consequences of these two theories were widely divergent.
If a league, and not a national government, was to be organized, it would be the majority of the states which would make the law, not the majority of the inhabitants of the Union. For each state, great or small, would then keep its character as an independent nation and enter into the Union on a footing of perfect equality.
But once the inhabitants of the United States were considered as forming one and the same people, then it would be natural that only the majority of the citizens should make the law.
One appreciates that the small states could not consent to the application of this doctrine without completely abdicating their existence as far as federal sovereignty was concerned; from being a coequal authority, they would become an insignificant fraction of a great people. The first system would have granted them unreasonable power; the second would annul it.
In these circumstances there occurred what almost always does happen when interests and theory are opposed: the rules of logic were bent. The lawgivers adopted a middle path which forcibly reconciled two theoretically irreconcilable systems.
The principle of state independence prevailed in the shaping of the Senate, the dogma of national sovereignty in the composition of the House of Representatives.
Each state was to send to Congress two senators and a number of representatives in proportion to its population.
One should also remember that it was not the task of the American lawgivers to make one single nation out of the people for whom they wanted to provide laws. The object of the federal Constitution was not to destroy the existence of the states but only to restrain them. As soon, therefore, as real power was left in the hands of these secondary bodies (and they could not be deprived of it), the habitual use of constraint to bend them to the will of the majority had been renounced in advance. This granted, there was nothing extraordinary in introducing the influence of the individual states into the machinery of government. It only acknowledged the existence of a recognized power which had to be humored and not constrained.
Chadwick: What is the major differences between the Senate and the House of Representatives?
De Tocqueville: There is a difference between the Senate and the other house not only in the principle of representation but also in the mode of election, length of term of office, and diversity of prerogatives.
The House of Representatives is appointed by the people, the Senate by the legislatures of each state.
One results from direct election, the other from election in two stages.
The representatives' term of office lasts only two years, that of the senators six. The House of Representatives has only legislative functions; its only share in judicial power is the right to impeach public officials. The Senate shares in making the laws; it judges the political offenders brought before it by the House of Representatives; it is also the great executive council of the nation. Treaties concluded by the President must be ratified by the Senate; his appointments are not final till they have been approved by that body.
Chadwick: How do you view the powers of the President?
De Tocqueville: The American lawgivers had a difficult task to fulfill; they wanted to create an executive power dependent on the majority that yet should be sufficiently strong to act freely on its own within its proper sphere.
Maintenance of the republican form of government required that the representative of executive power should be subject to the national will.
The President is an elective magistrate. His honor, property, freedom, and life are a perpetual pledge to the people for the good use he will make of his power. Moreover, in exercising that power he is not completely independent; the Senate supervises him in his relations with foreign powers and in his appointments to offices so that he can neither corrupt nor be corrupted.
The lawgivers of the Union appreciated that the executive power could not worthily and profitably carry out its task unless it was given more stability and strength than were granted in the individual states.
The President was appointed for four years and could be reelected. With his future to consider, he should have the courage to work in the public interest and the means to do so.
The President was made the one and only representative of the executive power of the Union. Care was taken not to subordinate his will to that of a council, a dangerous expedient which both clogs government action and lessens the ruler's responsibility. The Senate has the right to annul certain of the President's acts, but it cannot force him to act or share executive power with him.
Some legislatures can act directly on the executive power, and we have seen that the Americans were careful to prevent that. But their action may be indirect.
The power of the two houses to deprive a public official of his salary takes away some of his independence; with the making of laws at their command, there is always a danger that they will gradually encroach on that share of power which the Constitution intended the President to preserve. This dependence of the executive power is one of the inherent vices of republican constitutions. The Americans could not eliminate that tendency which leads legislative assemblies to take over the government, but they did make it less irresistible.
The President's salary is fixed on his entry into office for the whole term thereof. Moreover, the President has a suspensive veto which allows him to check the passage of laws which might destroy that portion of independence which the Constitution entrusted to him. But a struggle between President and legislature is bound to be unequal, for the latter, if it sticks to its plans, is always able to overcome any resistance he can put up; but the suspensive veto at least forces it to go over the ground again; the matter must be reconsidered, and this time it requires a two-thirds majority to carry it. Moreover, the veto is a sort of appeal to the people. The executive power, which without that guarantee might be oppressed in secret, can then argue its case and make its reasons heard. But if the legislature persists in its plans, is it not always able to overcome any resistance put up against it? My answer to that is that in the constitution of any people whatsoever, one reaches some point at which the lawgiver is bound to rely on the good sense and virtue of the citizens. That point is nearer and more obvious in republics, further and more carefully hidden in monarchies; but it is always there somewhere. There is no country where the law can foresee everything or where institutions should take the place of reason and mores.
Chadwick: What is your views toward the electorial college?
De Tocqueville: As one studies the institutions of the United States and looks more closely at the political and social state of that country, one discovers a wonderful harmony between fortune's favors and man's endeavors. America was a new country, but the people living there had already a long experience of liberty elsewhere: two circumstances most favorable to internal order. Moreover, America stood in no fear of conquest. The lawgivers of America, profiting by these happy circumstances, found no difficulty in establishing a weak and dependent executive power; having shaped it in that way, they could without danger make it elective.
They had then only to choose the least dangerous of the various modes of election; the rules they laid down in this respect admirably complete the guarantees already provided by the physical and political structure of the country.
The problem was to find that mode of election which, while expressing the real will of the people, would least arouse their passions and leave them least in suspense. It was first of all agreed that a simple majority should decide the point. But it was still a matter of great difficulty to ascertain that majority without fear of those delays which were most important to avoid.
In practice it seldom happens that one man can win a majority of the votes of a great nation at the first attempt. That is even more difficult in a republic of confederated states, where local influences are particularly well developed and strong.
To get around this second trouble, the following method was devised: the electoral powers of the nation were delegated to a body representing it.
This mode of election increased the chances of a majority, for the fewer the electors, the easier it is for them to come to an understanding. This method also made it more likely that their choice would be good.
But should the right of election be entrusted to the legislative body itself, the normal representatives of the nation, or should it rather be entrusted to an electoral college whose sole function would be the appointment of the President?
The Americans preferred the second alternative. They considered that the men sent to make the ordinary laws but incompletely represented the wishes of the people concerning the choice of their chief magistrate. Moreover, being elected for more than a year, they might represent a will which had already changed. They judged that if the legislature were responsible for choosing the head of the executive, the members of that body would, long before the election, be exposed to corrupting maneuvers and become the plaything of intrigues; whereas special electors would, like a jury, remain unrecognized in the crowd until the day when they had to act, and would then appear for one moment on the scene to pronounce their decision.
It was settled then that each state should nominate a certain number of electors, who in turn would elect the President. As it had been noticed that assemblies responsible for choosing heads of government in counties with elective systems inevitably became centers of passion and of intrigue, that they sometimes took over powers not belonging to them, and that often their proceedings, with the uncertainty resulting therefrom, could drag on so long that they put the state in danger–for all these reasons it was settled that all the electors should vote on a fixed day, but without assembling together.
The mode of election in two stages made a majority probable, but not assured, for the electors might differ among themselves just as much as their constituents might have done.
In that eventuality, a choice had to be made between one of possible measures: either new electors had to be appointed, or those already nominated had to be consulted again, or finally the choice had to be handed over to a new authority.
The first two of these alternatives, apart from their uncertainty, entailed delays and would prolong a potentially dangerous excitement.
The third was therefore chose, and it was arranged that the votes should be sent under seal to the president of the Senate; he was to break the seals on the appointed day in the presence of the two houses. If none of the candidates had obtained a majority, then the House of Representatives itself was to proceed immediately to elect a President; but this right of election was carefully limited. The representatives could choose only one of the three candidates who had received most votes.
It is therefore only a rare event, and one hard to foresee, that the election is entrusted to the normal representatives of the nation, and moreover, they can choose only a citizen who has already been designated by a strong minority of the special electors; that is a happy combination which reconciles respect for the will of the people with celerity of execution and with precautions demanded by the interest of the state. However, to let the House of Representatives decide in case of a split does not completely solve all problems, for there may be no decided majority in the House of Representatives, and in that case the Constitution offers no remedy. Nevertheless, by fixing a limit of three possible candidates and by entrusting the choice to an enlightened body, it has smoothed out all those difficulties over which it could have some control; the remaining difficulties were inherent in the elective system itself.
Chadwick: Were the framers wise in allowing the re-election of the President?
De Tocqueville: To refuse the head of the executive the chance of reelection seems, at first sight, contrary to reason. One knows what influence the talents or character of a single man exercise over the fate of a whole people, especially in times of difficulty or crisis. Laws forbidding the citizens from reelecting their first magistrate would deprive them of their best means of bringing prosperity to the state or of saving it. In that way one would reach this odd result that a man would be excluded from the government just at the moment when he had succeeded in proving his capacity to rule well.
No doubt those are powerful arguments, but can one not bring up even stronger ones against them?
Intrigue and corruption are natural vices of elective governments; but when the head of state can be reelected, these vices spread beyond bounds and compromise the very existence of the country. When a simple candidate forces himself forward by intrigue, his maneuvers can only take place within a restricted sphere. But when the head of state himself is in the lists, he can borrow all the power of the government for his private use.
In the first case it is a question of a man with feeble resources; in the second, it is the state itself with all its immense resources which intrigues and which corrupts.
The simple citizen guilty of disreputable maneuvers to gain power can harm public prosperity only in some indirect way; but if the representative of the executive power descends to compete, the cares of government become for him a secondary consideration; his main concern is for his election. For him negotiations, like laws, are nothing but electoral combinations; places become the reward for services rendered not to the nation, but to its head. Even if the government's action is not always contrary to the nation's interest, at least it no longer serves it. But the function of government is solely to serve the country.
It is impossible to observe the normal course of affairs in the United States without noticing that desire for reelection dominates the President's thoughts, that the whole policy of his administration is bent toward that aim, that his slightest actions are subordinate to that aim, and that, particularly as the moment of crisis draws nearer, his private interest takes the place of the general interest in his mind.
Therefore the principle of reelection makes the corrupting influence of elective governments wider spread and more dangerous. It tends to degrade the political morality of the nation and to substitute craft for patriotism.
In America it attacks the very sources of national existence at still closer range.
Each type of government harbors one natural vice which seems inherent in the very nature of its being; the genius of a lawgiver consists in discerning that clearly. A state may stand triumphant over many bad laws, and the harm they do is often exaggerated. But any law having the effect of nourishing this mortal germ cannot fail, in the long run, to prove fatal, even though its ill effects may not be immediately apparent.
In absolute monarchies the ruinous principle is the unlimited and unreasonable extension of the royal power. Any measure, therefore, which takes away the counterweights left by the constitution to balance this power, is radically bad, even though its effects may long seem negligible. In the same way, in a country where democracy holds sway and a people constantly attracts everything to itself, laws which make its action ever prompter and more irresistible are a direct attack on the existence of the government.
The greatest merit of the lawgivers of America was to have seen this truth clearly and to have had the courage to act accordingly.
They agreed that, besides the people, there must be a certain number of authorities which, though not entirely independent of it, nevertheless enjoyed within their sphere a fairly wide degree of freedom; by this means, though forced to obey the permanent directions of the majority, they could still struggle against its caprices and refuse to be the tools of its dangerous exigencies.
With this object, they concentrated the whole executive power of the nation in the hands of one man; they gave wide prerogatives to the President and armed him with the veto with which to resist the encroachments of the legislature.
But by introducing the principle of reelection they destroyed a part of their work. They gave the President much power, but took away from him the will to use it.
Had he not been reeligible, the President would still not have been independent of the people, or his responsibility toward it never ceased; but the people's favor would not have been so necessary to him that he must in everything bend to its will.
Reeligible (and this is especially true in our day, when political morality is growing lax and men of greater character are vanishing from the scene) the President of the United States is only a docile instrument in the hands of the majority. He loves what it loves and hates what it hates; he sails ahead of its desires, anticipating its complaints and bending to its slightest wishes; the lawgivers wished him to guide it, but it is he who follows.
In this way, intending not to deprive the state of one man's talents, they have rendered those talents almost useless, and to preserve a resource against extraordinary eventualities, they have exposed the country to dangers every day.
Chadwick: We have discussed the legislative and judicial branches of government outlined in the Constitution. What is your views toward the judiciary?
De Tocqueville: Governments in general have only two methods of overcoming the resistance of the governed: their own physical force and the moral force supplied to them by the decisions of courts.
A government for whom war was the only means of enforcing obedience to its laws would be on the verge of ruin. One of two things would probably happen to it: either, if it were feeble and moderate, it would use force only in the last extremity and would connive at many partial acts of insubordination; in that case the state would gradually fall into anarchy.
Or if it were audacious and powerful, it would have recourse to violence every day and would soon degenerate into a pure military despotism. Either its inaction or its activity would be equally fatal for the governed.
The great object of justice is to substitute the idea of right for that of violence, to put intermediaries between the government and the use of its physical force.
It is something astonishing what authority is accorded to the intervention of a court of justice by the general opinion of man kind. That power is so great that it clings even to judicial formalities when the substance is no longer there; it gives body to a shadow.
The moral force in which tribunals are clothed makes the use of physical force infinitely rarer, for in most cases it takes its place; and when finally physical force is required, its power is doubled by this moral authority.
A federal government more than any other should desire this support of justice, for by its nature it is feeble and resistance can more easily be organized against it. If it had always and as its first move to use force, it would not be adequate to its task.
The Union therefore had a particular need for tribunals to make the citizens obey its laws and to repel the attacks that might be launched against it.
But what tribunals should it employ? Each state already had its own organized judicial authority. Should it turn to those courts? Or should it organize a federal judiciary? It is easy to show that the Union could not adapt the established state courts to its use.
The separation of the judiciary from all other powers in the state is certainly important for the security of each and the liberty of all, but it was equally necessary for national existence that the different powers of the state should have the same origin, follow the same principles, and act within the same sphere–in a word, that they should be correlative and homogeneous. No one, I imagine, has ever thought that crimes committed in France should be tried by foreign courts so as to be more sure of the impartiality of the judges.
In their relations with the federal government, the Americans are one single people, but within this nation they have allowed political bodies to remain which in some respects are dependent on the national government but are independent in all others; each has a distinct origin, maxims peculiar to itself, and special means of carrying on its affairs. To entrust the execution of the Union's laws to courts established by these political parties would be handing over the nations to foreign judges.
Furthermore, each state is not only foreign to the Union at large but is its perpetual adversary, since whatever authority the Union loses turns to the advantage of the states.
Thus, to make the state courts enforce the laws of the Union would be handing the nation over to judges who are prejudiced as well as foreign.
Besides this, it was not only their character which made the state courts incapable of serving the national end, but even more their number.
When the federal Constitution was formed, there were already thirteen courts of justice in the United States, judging cases without appeal. How could a state carry on if its fundamental laws could be interpreted and applied in twenty-four different ways at the same time? Such a system would be equally contrary to reason and to the lessons of experience.
The American lawgivers therefore agreed to create a federal judicial authority to apply the laws of the Union and decide certain questions of general interest which were carefully defined in advance.
The whole judicial power of the Union was concentrated in a single tribunal called the Supreme Court of the United States, but in order to facilitate the dispatch of business, inferior courts were added to it which were empowered to decide cases of small importance without appeal and to act as courts of first instance in more serious disputes. The members of the Supreme Court were not elected by the people or by the legislature. The President of the United States had to choose them after taking the advice of the Senate.
In order to render them independent of the other authorities, they were made irremovable, and it was decided that their salaries, once fixed, would be out of the control of the legislature.
It is easy enough to proclaim the establishment of a federal judiciary in principle, but a mass of difficulties arose when it was a question of determining its prerogatives.
Chadwick: What is your views concerning the jurisdiction of the federal courts?
De Tocqueville: An initial question arises: the Constitution of the United States established two distinct sovereignties facing each other, represented in the realm of justice by two different systems of tribunals; however much care was taken to define the jurisdiction of each of these systems, frequent collisions between the two could not be prevented. So, in such a case, who had the right to decide competence?
In nations that form one and the same political society, when a question of competence arises between two courts of justice, it is generally brought before a third court, which serves as arbitrator. That is easily done, because in such nations questions of judicial competence have no relation with questions of national sovereignty.
But above a high court of a particular state and a high court of the United States it was impossible to establish any tribunal which would not belong to one or the other.
It was therefore necessary to give one of these courts the right to judge its own case and to accept or refuse competence in the matter disputed. One could not grant that privilege to the various courts of the state; that would have destroyed the sovereignty of the Union, in fact, when it had been established in law; for interpretation of the Constitution would soon have given the particular states that portion of independence which the terms of the Constitution had taken from them.
The intention in creating a federal tribunal was to deprive the state courts of the right to decide, each in its own way, questions of national interest, and in that manner to form a uniform body of jurisprudence interpreting the laws of the Union. That aim would not have been achieved if the courts of the particular states, while abstaining from judging cases as federal, had been able to judge them by pretending that they were not federal.
The Supreme Court of the United States was therefore entrusted with the right to decide all questions of competence.
That was the most dangerous blow dealt against the sovereignty of the states. It was now restricted not only by the laws but also by the interpretation of the laws, by a known boundary and by another that was not known, by a fixed rule and by an arbitrary one. It is true that the Constitution had fixed precise limits to federal sovereignty, but each time that sovereignty is in competition with that of the states, it is a federal tribunal that must decide.
However, the dangers with which this method of procedure seemed to threaten the sovereignty of the states were not in reality as great as they appeared to be.
In America real power resided in the provincial governments rather than in the federal government. The federal judges feel the relative weakness of the power in whose name they act, and they are more ready to give up a right to jurisdiction in cases where the law has given it to them than to claim one illegitimately.
Chadwick: The Supreme Court has always occupied a position of high standing in America. How do you view the Court?
De Tocqueville: When, after a detailed examination of the organization of the Supreme Court, we come to consider the whole body of prerogatives granted to it, it soon becomes clear that a mightier judicial authority has never been constituted in any land.
The Supreme Court has been given higher standing than any known tribunal, both by the nature of its rights and by the categories subject to its jurisdiction.
In all the properly administered countries of Europe the government has always shown great repugnance to allowing the ordinary courts to deal with matters affecting itself. Naturally this repugnance is all the greater when the government is absolute. Contrariwise, as liberty increases, the prerogatives of the courts are continually enlarged; but no European nation has ever thought that all judicial questions, whatever their origin, could be left to judges of common law.
But that is just the theory which has been put in practice in America. The Supreme Court of the United States is the sole and unique tribunal of the nation. It is responsible for the interpretation of laws and of treaties; questions to do with overseas trade or in any way involving international law come within its exclusive competence. One might even say that its prerogatives are entirely political, although its constitution is purely judicial. Its sole object is to see that the laws of the Union are carried out; and the Union only controls relations between the government and the governed and between the nation and foreigners; relations between the citizens themselves are almost all regulated by state sovereignty.
To this first cause of its importance is added another even greater one. In the European nations only private persons come under the jurisdiction of the courts, but the Supreme Court of the United States may be said to summon sovereigns to its bar. When the court crier, mounting the steps of the tribunal, pronounces these few words: "The state of New York versus the state of Ohio," one feels that this is no ordinary court of justice. And when one considers that one of these parties represents a million men and the other two million, one is amazed at the responsibility weighing on the seven men whose decision will please or grieve so many of their fellow citizens.
The peace, prosperity, and very existence of the Union rest continually in the hands of these seven federal judges. Without them the Constitution would be a dead letter; it is to them that the executive appeals to resist the encroachments of the legislative body, the legislature to defend itself against the assaults of the executive, the Union to make the states obey it, the States to rebuff the exaggerated pretensions of the Union, public interest against private interest, the spirit of conservation against democratic instability. Their power is immense, but it is power springing from opinion. They are all powerful so long as the people consent to obey the law; they can do nothing hen they scorn it. Now, of all powers, that of opinion is the hardest to use, for it is impossible to say exactly where its limits come. Often it is as dangerous to lag behind as to outstrip it.
The federal judges therefore must not only be good citizens and men of education and integrity, qualities necessary for all magistrates, but must also be statesmen; they must know how to understand the spirit of the age, to confront those obstacles that can be overcome, and to steer out of the current when the tide threatens to carry them away, and with them the sovereignty of the Union and obedience to its laws.
The President may slip without the state suffering, for his duties are limited. Congress may slip without the Union perishing, for above Congress there is the electoral body which can change its spirit by changing its members.
But if ever the Supreme Court came to be composed of rash or corrupt men, the confederation would be threatened by anarchy or civil war.
However, we must not make a mistake; the original cause of the danger does not lie in the constitution of the tribunal, but in the very nature of the federal government. We have seen that nowhere is it more necessary to establish a strong judicial authority than in confederated nations because nowhere else are there individual entities able to struggle against the body social that are stronger and in better state to resist the use of physical force by the government.
Now, the more necessary it is for an authority to be strong, the more scope and independence it must be given. The more scope and independence an authority has, the more dangerous will any abuse of its power prove. Hence, the origin of the evil is not in the constitution of that authority, but in the very constitution of the state which makes the existence of such a power necessary.
Chadwick: The founders believed that a Republic was superior to a democracy. What is your view toward democracies?
De Tocqueville: Democracies are naturally inclined to concentrate all the power of society in the hands of the legislative body. That being the authority which springs most directly from the people, it is also that which shares its all embracing power most.
Hence one notes its habitual tendency to gather every kind of authority into its hands.
This concentration of powers, while it is singularly harmful to the proper conduct of business, also establishes the despotism of the majority.
Chadwick: What distinguishes the Constitution of the United States from other federal constitutions?
De Tocqueville: The United States has not provided the first and only example of a confederation. Without speaking of antiquity, modern Europe furnishes several examples. Switzerland, the German Empire, and the republic of the Netherlands have been, or still are, confederations.
When one studies the constitutions of these various countries, one notes with surprise that the powers granted to the federal governments are nearly the same as those accorded to the government of the United States. Like the latter, they give the central authority the right to make war and peace, to raise men and money, to provide for the general needs, and to regulate the common interests of the nations.
Nevertheless, federal government in these various countries has always remained weak and impotent, whereas that of the Union conducts affairs with vigor and with ease.
Furthermore, the first American Union could not survive because of the excessive weakness of its government, but that government which proved so feeble had been granted rights as broad as those of the present federal government. One may even say that in certain respects its privileges were greater.
There must therefore be in the present Constitution of the United States some new principles which do not strike one at first glance but which have a profound influence.
This Constitution, which at first sight one is tempted to confuse with previous federal constitutions, in fact rests on an entirely new theory, a theory that should be hailed as one of the great discoveries of political science in our age.
In all confederations previous to that of 1789 in America, the peoples who allied themselves for a common purpose agreed to obey the injunctions of the federal government, but they kept the right to direct and supervise the execution of the union's laws in their territory.
The Americans who united in 1789 agreed not only that the federal government should dictate the laws but that it should itself see to their execution.
In both cases the right is the same, and only the application thereof different. But that one difference produces immense results.
In all confederations previous to that of contemporary America, a federal government appealed to the particular governments to provide its needs. Whenever one of these disliked the measure prescribed, it could always avoid the necessity of obedience. If it was strong, it could appeal to arms; if it was weak, it could tolerate resistance to laws of the union, though accepted as its own, giving its impotence as an excuse and relying on the force of inertia.
Consequently, one of two things has always happened: either the most powerful of the combined states assumed the prerogatives of the federal authority and dominated all the others in its name or the federal government has been left to its own resources, anarchy has reigned among the confederates, and the union has lost its power to act.
In America the Union's subjects are not states but private citizens. When it wants to levy a tax, it does not turn to the government of Massachusetts, but to each inhabitant of Massachusetts. Former federal governments had to confront peoples, individuals of the Union. It does not borrow its power, but draws it from within. It has its own administrators, courts, officers of justice, and army.
No doubt the spirit of the nation, the collective passions, and the provincial prejudices of each state still singularly tend to diminish the power of the federal authority thus constituted and to create centers of resistance to its wishes; restricted in its sovereignty, it cannot be as strong as if it possessed complete sovereignty; but that is an evil inherent in the federative system.
In America each state has comparatively few opportunities or temptations to resist; if it does think of doing so, it cannot carry this out without openly violating the laws of the Union, interrupting the ordinary course of justice, and raising the standard of revolt; in a word, it would have directly to take up an extreme position, and men hesitate for a long time before doing that.
In previous confederations the rights accorded to the union furnished more elements of discord than of power, for they multiplied the nation's claims without augmenting its means of enforcing them. For this reason the real weakness of federal governments has almost always increased in direct proportion to their nominal powers.
That is not so in the American Union; like most ordinary governments, the federal government can do what it has been given the right to do.
The human mind invents things more easily than words; that is why many improper terms and inadequate expressions gain currency.
Some nations form a permanent league and establish a supreme authority which, though it cannot act directly in dealings with individual citizens as a national government would do, nevertheless acts directly on each of the confederate peoples taken as a body.
Such a government, so different from all others, is called federal.
A form of society is then discovered in which several peoples really fused into one in respect of certain common interests but remained separate and no more than confederate in all else.
Here the central power acts without intermediary on the governed, administering and judging them itself, as do national governments, but it only acts thus within a restricted circle. Clearly here we have not a federal government but an incomplete national government. Hence a form of government has been found which is neither precisely national nor federal; but things have halted there, and the new word to express this new thing does not yet exist.
It is because they have not understood this new type of confederation that all unions have come to civil war, subjection, or inertia. The peoples composing them have all lacked either enlightenment to see the remedies for their ills or courage to apply them.
The first American Union, too, suffered from the same defects.
But in America the confederated states, before gaining independence, had long been part of the same empire; they had, therefore, not yet formed the habit of governing themselves completely, and national prejudicies had not been able to put down deep roots; more enlightened than the rest of the world, and with that enlightenment equally spread among them, they felt only in a mild degree those passions which ordinarily make people oppose the extension of federal power, and their greatest citizens strove against those passions. As soon as they felt the ill, the Americans firmly thought out the remedy. They amended their laws and saved their country.
Chadwick: What are the advantages of the federal system in America?
De Tocqueville: The federal system was devised to combine the various advantages of large and small size for nations.
A glance at the United States of America will show all the advantages derived from adopting that system.
In large centralized nations the lawgiver is bound to give the laws a uniform character which does not fit the diversity of places and of mores; having never studied particular cases, he can only proceed by general rules; so men must bend to the needs of legislation, for the legislation has no skill to adapt itself to the needs and mores of men; and from this, much trouble and unhappiness results. That inconvenience does not exist in confederations: the congress regulates the main features of social behavior, and all the details are left to the provincial legislatures.
One can hardly imagine how much this division of sovereignty contributes to the well-being of each of the states of the Union. In these little societies, unpreoccupied with cares of defense or aggrandizement, all the strength of society and all individual efforts are turned toward internal improvements. The central government of each state, being close to the governed, is continually informed of the needs that arise; every year new plans are put forward and discussed in the municipal assemblies or in the state legislature and then published in the press, exciting universal interest and eagerness among the citizens. Need for improvement constantly stirs, but does not trouble, the American republics; there ambition for power gives place to love of well-being, a more vulgar but less dangerous passion. It is an opinion generally current throughout America that the existence and survival of republican forms in the New World depend on the federal system. Many of the misfortunes into which the new states of South America have plunged are attributed to the desire to establish great republics there instead of breaking sovereignty up.
It is indeed incontestable that in the United States the taste for and practice in republican government were born in the townships and provincial assemblies. In a little country such as Connecticut, for example, where the opening of a canal or the cutting of a road is the main political business, where there is no army to pay or war to finance, and where the country cannot give much wealth or glory to its rulers, nothing could be more natural or appropriate to the nature of things than a republic. Now, it is that same republican spirit, those same mores and habits of liberty, which, having come to birth and grown in the various states, are then applied without any trouble in the nation as a whole. Public spirit in the Union is, in a sense, only a summing up of provincial patriotism. Every citizen of the United States may be said to transfer the concern inspired in him by his little republic into his love of the common motherland. In defending the Union, he is defending the increasing prosperity of his district, the right to direct its affairs, and the hope of pressing through plans for improvements there which should enrich himself–all things which, in the normal run, touch men more than the general interests of the country and national glory.
Equally, while the turn of mind and mores of the inhabitants made them better fitted than others to bring prosperity to a great republic, the federal system has made that task much less difficult. The confederation of all the American states does not suffer from those disadvantages usual to large conglomerations. The Union is a great republic in extent, but it can in come fashion be likened to a small one because there are so few matters with which the government is concerned. Its acts are important but rare. As the Union's sovereignty is hampered and incomplete, its use is not at all dangerous to freedom. Moreover, it does not arouse that inordinate craving for power and renown which are so fatal to great republics. As there is no necessity for everything to end at one common center, one finds neither vast metropolises, nor immense wealth, nor extreme poverty, nor sudden revolutions. Political passions, instead of spreading like a sheet of fire instantaneously over the whole land, break up in conflict with individual passions of each state.
But things and ideas circulate freely throughout the Union as through one and the same people. Nothing restrains the soaring spirit of enterprise. Its government attracts men of talent and enlightenment. Within the frontiers of the Union profound peace reigns, as within a country subject to the same empire; outside it takes rank among the most powerful countries in the world; two thousand miles of coast are open to foreign trade; and, holding in its hands the keys to the New World, its flag is respected in the farthest seas.
The Union is free and happy like a small nation, glorious and strong like a great one.
Chadwick: Is the federal system outlined in the Constitution within reach of other nations? De Tocqueville: When one examines the Constitution of the United States, the best of all known federal constitutions, it is frightening to see how much diverse knowledge and discernment it assumes on the part of the governed. The government of the Union rests almost entirely on legal fictions. The Union is an ideal nation which exists, so to say, only in men's minds and whose extent and limits can only be discerned by the understanding.
When the general theory is well understood, there remain difficulties of application; these are innumerable, for the sovereignty of the Union is so involved with that of the states that it is impossible at first glance to see their limits. Everything in such a government depends on artificially contrived conventions, and it is only suited to a people long accustomed to manage its affairs, and one in which even the lowest ranks of society have an appreciation of political science. Nothing has made me admire the good sense and practical intelligence of the Americans more than the way they avoid the innumerable difficulties deriving from their federal Constitution. I have hardly ever met one of the common people in America who did not surprisingly and easily perceive which obligations derived from a law of Congress and which were based on the laws of his state and who, having distinguished the matters falling within the general prerogatives of the Union from those suitable to the local legislature, could not indicate the point where the competence of the federal courts commences and that of the state courts ends.
The Constitution of the United States is like one of those beautiful creations of human diligence which give their inventors glory and riches but remains sterile in other hands.
Contemporary Mexico has shown that.
The Mexicans, wishing to establish a federal system, took the federal Constitution of their Anglo-American neighbors as a model and copied it almost completely. But when they borrowed the letter of the law, they could not at the same time transfer the spirit that gave it life. As a result, one sees them constantly entangled in the mechanism of their double government. The sovereignty of the states and that of the union, going beyond the spheres assigned to them by the constitution, trespass continually on each other's territory. In fact, at present Mexico is constantly shifting from anarchy to military despotism and back from military despotism to anarchy.
Chadwick: In early America, religion, particularly Christianity, was promoted by government officials from Presidents to governors. Would you share with us your views concerning the relationship of religion and government?
De Tocqueville: There is an innumerable multitude of sects in the United States. They are all different in the worship they offer to the Creator, but all agree concerning the duties of men to one another. Each sect worships God in its own fashion, but all preach the same morality in the name of God. Though it is very important for man as an individual that his religion should be true, that is not the case for society. Society has nothing to fear or hope from another life; what is most important for it is not that all citizens should profess the true religion but that they should profess religion. Moreover, all the sects in the United States belong to the great unity of Christendom, and Christian morality is everywhere the same.
One may suppose that a certain number of Americans, in the worship they offer to God, are following their habits rather than their convictions. Besides, in the United States the sovereign authority is religious, and consequently hypocrisy should be common. Nonetheless, America is still the place where the Christian religion has kept the greatest real power over men's souls; and nothing better demonstrates how useful and natural it is to man, since the country where it now has widest sway is both the most enlightened and the freest.
"I have said that American priests proclaim themselves in general terms in favor of civil liberties without-excepting even those who do not admit religious freedom; but none of them lend their support to any particular political system. They are at pains to keep out of affairs and not mix in the combinations of parties. One cannot therefore say that in the United States religion influences the laws or political opinions in detail, but it does direct mores, and by regulating domestic life it helps to regulate the state.
"I do not doubt for an instant that the great severity of mores which one notices in the United States has its primary origin in beliefs. There religion is often powerless to restrain men in the midst of innumerable temptations which fortune offers. It cannot moderate their eagerness to enrich themselves, which everything contributes to arouse, but it reigns supreme in the souls of the women, and it is women who shape mores. Certainly of all countries in the world America is the one in which the marriage tie is most respected and where the highest and truest conception of conjugal happiness has been conceived.
"In Europe almost all the disorders of society are born around the domestic hearth and not far from the nuptial bed. It is there that men come to feel scorn for natural ties and legitimate pleasures and develop a taste for disorder, restlessness of spirit, and instability of desires. Shaken by the tumultuous passions which have often troubled his own house, the European finds it hard to submit to the authority of the state's legislators. When the American returns from the turmoil of politics to the bosom of the family, he immediately finds a perfect picture of order and peace. There all his pleasures are simple and natural and his joys innocent and quiet, and as the regularity of life brings him happiness, he easily forms the habit of regulating his opinions as well as his tastes.
"Whereas the European tries to escape his sorrows at home by troubling society, the American derives from his home that love of order which he carries over into affairs of state.
"In the United States it is not only mores that are controlled by religion, but its sway extends even over reason.
"Among the Anglo-Americans there are some who profess Christian dogmas because they believe them and others who do so because they are afraid to look as though they did not believe in them. So Christianity reigns without obstacles, by universal consent; consequently, as I have said elsewhere, everything in the moral field is certain and fixed, although the world of politics seems given over to argument and experiment. So the human spirit never sees an unlimited field before itself; however bold it is, from time to time it feels that it must halt before insurmountable barriers. Before innovating, it is forced to accept certain primary assumptions and to submit its boldest conceptions to certain formalities which retard and check it.
"The imagination of the Americans, therefore, even in its greatest aberrations, is circumspect and hesitant; it is embarrassed from the start and leaves its work unfinished. These habits of restraint are found again in political society and singularly favor the tranquillity of the people as well as the durability of the institutions they have adopted. Nature and circumstances have made the inhabitant of the United States a bold man, as is sufficiently attested by the enterprising spirit with which he seeks his fortune. If the spirit of the Americans were free of all impediment, one would soon find among them the boldest innovators and the most implacable logicians in the world. But American revolutionaries are obliged ostensibly to profess a certain respect for Christian morality and equity, and that does not allow them easily to break the laws when those are opposed to the executions of their designs; nor would they find it easy to surmount the scruples of their partisans even if they were able to get over their own. Up till now no one in the United States has dared to profess the maxim that everything is allowed in the interests of society, an impious maxim apparently invented in an age of freedom in order to legitimatize every future tyrant.
"Thus, while the law allows the American people to do everything, there are things which religion prevents them from imagining and forbids them to dare.
"Religion, which never intervenes directly in the government of American society, should therefore be considered as the first of their political institutions, for although it did not give them the taste for liberty, it singularly facilitates their use thereof.
"The inhabitants of the United States themselves consider religious beliefs from this angle. I do not know if all Americans have faith in their religion–for who can read the secrets of the heart?–but I am sure that they think it necessary to the maintenance of republican institutions. That is not the view of one class or party among the citizens, but of the whole nation; it is found in all ranks. "In the United States, if a politician attacks a sect, that is no reason why the supporters of that very sect should not support him; but if he attacks all sects together, everyone shuns him, and he remains alone.
"While I was in America, a witness called at assizes of county of Chester (state of New York) declared that he did not believe in the existence of God and the immortality of the soul. The judge refused to allow him to be sworn in, on the ground that the witness had destroyed beforehand all possible confidence in his testimony. Newspapers reported the fact without comment.
"For the Americans the ideas of Christianity and liberty are so completely mingled that it is almost impossible to get them to conceive of the one without the other; it is not a question with them of sterile beliefs bequeathed by the past and vegetating rather than living in the depths of the soul.
"I have known Americans to form associations to send priests out into the new states of the West and establish schools and churches there; they fear that religion might be lost in the depths of the forest and that the people growing up there might be less fitted for freedom than those from whom they sprang. I have met rich New Englanders who left their native land in order to establish the fundamentals of Christianity and of liberty by the banks of the Missouri or on the prairies of Illinois. In this way, in the United States, patriotism continually adds fuel to the fires of religious zeal. You will be mistaken if you think that such men are guided only by thoughts of the future life; eternity is only one of the things that concern them. If you talk to these missionaries of Christian civilization you will be surprised to hear them so often speaking of the goods of this world and to meet a politician where you expected to find a priest. 'There is a solidarity between all the American republics.' they will tell you, 'if the republics of the West were to fall into anarchy or to be mastered by a despot, the republican institutions now flourishing on the Atlantic coast would be in great danger, we therefore have an interest in seeing that the new states are religious so that they may allow us to remain free.'
"That is what the Americans think, but our pedants find it an obvious mistake; constantly they prove to me that all is fine in America except just that religious spirit which I admire; I am informed that on the other side of the ocean freedom and human happiness lack nothing but Spinoza's belief in the eternity of the world and Cabanis' contention that thought is a secretion of the brain. To that I have really no answer to give, except that those who talk like that have never been in America and have never seen either religious peoples or free ones. So I shall wait till they come back from a visit to America.
"There are people in France who look on republican institutions as a temporary expedient for their own aggrandizement. They mentally measure the immense gap separating their vices and their poverty from power and wealth, and they would like to fill this abyss with ruins in an attempt to bridge it. Such people stand toward liberty much as the medieval condottieri stood toward the kings; they make war on their own account, no matter whose colors they wear: the republic, they calculate, will at least last long enough to lift them from their present degradation. It is not to such as they that I speak, but there are others who look forward to a republican form of government as a permanent and tranquil state and as the required aim to which ideas and mores are constantly steering modern societies. Such men sincerely wish to prepare mankind for liberty. When such as these attack religious beliefs, they obey the dictates of their passions' not their interests. Despotism may be able to do without faith, but freedom cannot, Religion is much more needed in the republic they advocate than in the monarchy they attack, and the democratic republics most of all. How could society escape destruction if, when political ties are relaxed, moral ties are not tightened? And what can be done with a people master of itself if it is not subject to God?
7. General Welfare Clause–Establishing a Limited Government
One of the most unique forms of government ever devised by man, with the aid of Providence, originated in the American colonies during the late 18th Century It was called republicanism, and it derived "all its powers directly or indirectly from the great body of people." Fundamental to the principle of republicanism was the concept of limited government. James Madison, who was the chief architect of republican government in America, outlined the concept of limited government in The Federalist as follows:
"The powers delegated by the proposed Constitution to the federal government are few and defined Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States, will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and in the internal order, improvement, and prosperity of the State."
The Framers of the Constitution carefully defined the powers possessed by each branch of government. Writing in Essay No. 14, Madison noted that the jurisdiction of Congress was limited to the specific grants of power in Article 1, Section 8, of the Constitution: "In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other objects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled by the principle of self preservation to reinstate them in their proper jurisdiction."
Many colonists were concerned that the new Constitution created an unlimited government at the national level. Madison answered this allegation in The Federalist. In Essay No. 41 he forcefully reiterated that the general welfare clause was not a grant of unlimited power to Congress: "Some who have not denied the necessity of the power of taxation have grounded a very fierce attack against the Constitution, on the language in which it is defined, It has been urged and echoed that the 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,' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare, No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
"Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms 'to raise money from the general welfare."'
It was clear to Madison and most other founders that the government they established was a limited one, Let us look at the specific language of the Constitution.
Article 1, Section 8, Clause 1, of the Constitution contains the following language: "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."
Clause 1 is followed by 16 subsequent clauses which specify the powers granted to Congress. For example, Clause 2 allows Congress to "borrow money on the credit of the United States." Clause 3 grants Congress the power to "regulate commerce with foreign nations, and among the several States." Clause 18 provides that Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers . . . ."
The words "common defense" and "general welfare" utilized in the U S. Constitution were taken directly from Article III and Article VIII of the Articles of Confederation, In a letter to Edmund Pendleton, dated January 21, 1792, James Madison noted that the term "general welfare" had been copied by the delegates at Philadelphia from the Articles, He then added; "It (general welfare clause) was always understood as nothing more than a general caption to the specific powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction."
The delegates needed to select a set of words which made it clear that Congress was empowered to levy taxes for all the National purposes set forth in the grants of power specified in Article l, Section 8, of the Constitution. The delegates selected the words, 'to provide for the common defense and general welfare,' as a general descriptive phrase for which Congress was to be empowered to levy and collect taxes These words were not a grant of power, they only introduced the limited grants of power which the Committee of Detail had specified in its Report of August 6, Soon after the Constitution was ratified and put into operation, advocates of the concept of unlimited government began chiselling away at our charter of liberty. On December 5, 1791, Alexander Hamilton presented his "Report of Manufactures" to Congress that called for the use of the taxing powers of Congress. In his Report, Hamilton advanced a broad interpretation of the general welfare clause: "The phrase is as comprehensive as any that could have been used, because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limits than the general welfare, and because this necessarily embraces a vast variety of particulars which are susceptible neither of specification nor definition. It is therefore of necessity left to the discretion of the National Legislature to pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general interests of learning, of agriculture, or manufactures, and of commerce, are within the sphere of the national councils, as far as regards an application of money.
"This only qualification of the generality of the phrase in question which seems to be admissible is this: That the object to which an appropriation of money is to be made must be general, and not local, its operation extending in £act or by possibility, throughout the Union, and not being confined to a particular spot.
"No objection ought to arise to this construction, from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the general welfare. A power to appropriate money with this latitude, which is granted, too, in express terms, would not carry a power to do any other thing not authorized in the Construction, either expressly or by fair implication."
It is obvious that if such an interpretation had been advanced prior to the ratification of the U S. Constitution the Constitution would have never been adopted.
A few weeks after the Report was made public, James Madison wrote to Henry Lee, then Governor of Virginia, asking:
"What think you of the commentary . . on the terms 'general welfare'?–The federal government has been hitherto limited to the specific powers, by the Greatest Champions for latitude in expounding those powers–If not only the means, but the objects are unlimited, the parchment had better be thrown into the fire at once."
Madison felt that the Hamilton Report was in need of great clarification. Its principles and interpretation: ". . . broaches a new constitutional doctrine of vast consequences, and demanding the serious attention of the public. I consider it myself as subverting the fundamental and characteristic principle of government: as contrary to the true and fair, as well as the received construction, and as bidding defiance to the sense in which the Constitution is known to have been proposed, advocated and adopted. If congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer one possessing enumerated powers, but an indefinite one subject to particular exceptions."
Madison felt it was necessary to not only oppose Hamilton in private, but in public as well. He launched a fervent attack upon what he felt were the erroneous and unconstitutional views of Hamilton on the floor of Congress. He stated: "It is to be recollected, that the terms 'common defense and general welfare,' as here used, are not novel terms, first introduced into this Constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old Articles of Confederation; where, although they are susceptible of as great a latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as it now assigned to them. On the contrary, it was always considered as clear and certain, that the old Congress was limited to the enumerated powers and that the enumeration limited and explained the general terms. . . .
"If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every State, county, and parish, and pay them out of the public Treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union, they may undertake the regulation of all roads, other than post roads. In short, everything, from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.... "Were the power of Congress to establish in the latitude contended for, it would subvert the very nature of limited government established by the people of America."
Hamilton's Report was put aside, thus rendering his first major defeat as Secretary of the Treasury. While Hamilton may have lost the battle, the war over limited versus unlimited government was not over.
It was just beginning. Let us now review several statements made the by early Framers and prominent Americans which support the concept of limited government.
June 17, 1798, Abraham Baldwin, a member of the convention which framed the Constitution, stated on the floor of Congress that ". . . to provide for the common defense and general welfare has never been considered as a source of legislative power, as it is only a member, introduced to limit the other part of the sentence."
Thomas Jefferson, a close, lifetime friend of James Madison, held an identical viewpoint in reference to the general welfare clause. In a letter to Albert Gallatian in 1817, Jefferson said: "You will have to learn that an act for internal improvement, after passing both Houses, was negatived by the President. The act was founded, avowedly, on the principle that the phrase in the Constitution which authorizes the Congress 'to lay taxes, to pay the debts and provide for the general welfare,' was an extension of the powers specifically enumerated to whatever would promote the general welfare; and this, you know, was the Federal doctrine. Whereas our tenet ever was, and indeed, it is almost the only landmark which now divides the Federalist and the Republicans, that Congress has not unlimited powers to provide for the general welfare, but was restrained to those specifically enumerated; and that, as it was never meant that they should provide for that welfare but the exercise of the enumerated powers, so it could not have meant that they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation on the purposes for which they may raise money,"
At another time Jefferson again explained this concept.
"Congress may collect taxes for the purpose of providing for the general welfare, in those cases wherein the constitution empowers them to act for the general welfare. To suppose that it was meant to give them a distinct substantive power, to do any act which might tend to the general welfare, is to render all the enumerations useless, and to make their powers unlimited."
One of the most extensive commentaries on the general welfare clause was given by President James Monroe in a veto message on May 4, 1822. In his message the President outlined the views which led him to oppose an act of Congress "for the preservation and repair of the Cumberland Road: "It is not claimed by the friends of this bill, that any direct authority exists for passing it' but that, such authority is implied from Various expressions of the Constitution, and, among others, the power conferred upon Congress 'to pay the debts and provide for the common defense and general welfare of the United States.' This claim has less reason on its side than either of those which we have already examined. The power of which this forms a part is expressed in the following words: '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; but all duties, imposts, and excises shall be uniform throughout the United States,' That the second part of this grant gives the right to appropriate the public money, and nothing more is evident from the following considerations: First, If the right of appropriation is not given by this clause, it is not given at all, there being no other grant in the Constitution which gives it directly or which has any bearing on the subject, even by implication, except the two following; First the prohibition, which is contained in the eleventh of the enumerated powers, not to appropriate money for the support of armies for a longer term than two years; and, second, the declaration of the sixth member or clause of the ninth section of the first article that no money shall be drawn from the Treasury, but in consequence of appropriations made by law Second. This part of the grant has none of the characteristics of a distinct and original power. It is manifestly incidental to the great objects of the first part of the grant, which authorizes Congress to lay and collect taxes, duties, imposts and excises, a power of vast extent' not granted by the Confederation, the grant of which formed one of the principal inducements to the adoption of this Constitution. If both parts of the grant are taken together (as they must be, for the one follows immediately after the other in the same sentence), it seems to be impossible to give to the latter any other construction than that contended for. Congress shall have power to lay and collect taxes, duties, imposts, and excises. For what purpose? To pay the debts and provide for the common defense and general welfare of the United States, an arrangement and phraseology which clearly show that the latter part of the clause was intended to enumerate the purposes to which the money thus raised might be appropriated. Third If this is not the real object and fair construction of the second part of this grant, it follows either that it has no import or operation whatever or one of much greater extent than the first part,
"This presumption is evidently groundless in both instances. In the first because no part of the Constitution can be considered useless; no sentence or clause in it without a meaning. In the second because such a construction as made the second part of the clause an original grant, embracing the same object with the first, but with much greater power than it would be in the highest degree absurd. The order generally observed in grants, an order founded in common sense, since it promotes a clear understanding of their import, is to grant the power intended to be conveyed in the most full and explicit manner, and then to explain or qualify it, if explanation or qualification should be necessary, This order has, it is believed, been invariably observed in all the grants contained in the Constitution. In the second because if the clause in question is not construed merely as an authority to appropriate the public money, it must be obvious that it conveys a power of indefinite and unlimited extent; that there would have been no use for the special powers to raise and support armies and a navy, to regulate commerce, to call forth the militia, or even to lay and collect taxes, duties, imposts, and excises. An unqualified power to pay the debts and provide for the common defense and general welfare, as the second part of this clause would be if considered as a distinct and separate grant, would extend to every object in which the public could be interested. A power to provide for the common defense would give to Congress the command of the whole force and of all the resources of the Union; but a right to provide for the general welfare would go much further. It would, in effect, break down all the barriers between the States and the General Government and consolidate the whole under the latter.
"The powers specially granted to Congress are what are called the enumerated powers ? and are numbered in the order in which they stand, among which that contained in the first clause holds the first place in point of importance. If the power created by the latter part of the clause is considered an original grant, unconnected with and independent of the first, as in that case it must be, then the first part is entirely done away, as are all the other grants in the Constitution, being completely absorbed in the transcendent power granted in the latter part; but if the clause be construed in the sense contended for, then every part has an important meaning and effect; not a line, a word, in it is superfluous. A power to lay and collect taxes, duties, imposts, and excises subjects to the call of Congress every branch of the public revenue, internal and external, and the addition to pay the debts and provide for the common defense and general welfare gives the right of applying the money raised–that is, of appropriating it to the purposes specified according to a proper construction of the terms Hence it follows that it is the first part of the clause only which gives a power which affects in any manner the power remaining to the States, as the power to raise money from the people, whether it be taxes, duties, imposts, or excises, though concurrent in the States as to taxes and excises must necessarily do.
"But the use or application of the money after it is raised is a power altogether of a different character. It imposes no burden on the people, nor can it act on them in a sense to take power from the States or in any sense in which power can be controverted, or become a question between the two Governments. The application of money raised under a lawful power is a right or grant which may be abused. It may be applied partially among the States, or to improper purposes in our foreign and domestic concerns; but still it is a power not felt in the sense of other power, since the only complaint which any State can make of such partiality and abuse is that some other State or States have obtained greater benefit from the application than by a just rule of apportionment they were entitled to. The right of appropriation is therefore from its nature secondary and incidental to the right of raising money, and it was proper to place it in the same grant and same clause with that right. By finding them, then, in that order we see a new proof of the sense in which the grant was made, corresponding with the view herein taken of it. The last part of this grant, which provides that all duties, imposts, and excises shall be uniform throughout the United States, furnishes another strong proof that it was not intended that the second part should constitute a distinct grant in the sense above stated, or convey any other right than that of appropriation. This provision operates exclusively on the power granted in the first part of the clause. It recites three branches of that power–duties, imposts, and excises–those only on which it could operate, the rule by which the fourth–that is, taxes–should be laid being already provided for in another part of the Constitution. The object of this provision is to secure a just equality among the States in the exercise of that power by Congress. By placing it after both the grants–that if, after that to raise and that to appropriate the public money-and making it apply to the first only it shows that it was not intended that the power granted in the second should be paramount to and destroy that granted in the first. It shows also that no such formidable power as that suggested had been granted in the second, or any power against the abuse of which it was thought necessary specially to provide. Surely if it was deemed proper to guard a specific power of limited extent and well-known import against injustice and abuse, it would have been much more so to have guarded against the abuse of a power of such vast extent and so indefinite as would have been granted by the second part of the clause if considered as a distinct and original grant.
"With this construction all the other enumerated grants, and, indeed, all the grants of power contained in the Constitution, have their full operation and effect. They all stand well together, fulfilling the great purposes intended by them. Under it we behold a great scheme, consistent in all its parts, a Government instituted for national purposes, vested with adequate powers for those purposes ? commencing with the most important of all, that of the revenue, and proceeding in regular order to the others-with which it was deemed proper to endow it, all, too, drawn with the utmost circumspection and care. How much more consistent is this construction with the great objects of the institution and with the high character of the enlightened and patriotic citizens who framed it, as well as of those who ratified it, than one which subverts every sound principle and rule of construction and throws everything into confusion, I have dwelt thus, long on this part of the subject from an earnest desire to fix in a clear and satisfactory manner the import of the second part of this grant, well knowing from the generality of the terms used their tendency to lead into error. I indulge a strong hope that the view herein presented will not be without effect, but will tend to satisfy the unprejudiced and impartial that nothing more was granted by that part than a power to appropriate the public money raised under the other part."
In 1833 an Associate Justice of the U.S. Supreme Court named Joseph Story compiled a law text entitled Commentaries on the Constitution of the United States: With a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. At the time of the completion of the two volume text, Joseph Story was the Dane Professor of Law at Harvard University. The commentaries were used by law schools throughout the nation until approximately 1900. In Volume I of his massive study, Joseph Story supported the concept of limited government when he stated: ". . . The government of the United States is one of limited powers, leaving all residuary general powers in the state governments, or in the people thereof. The jurisdiction of the general government is confined to a few enumerated objects, which concern the common welfare of all the states. The state governments have a full superintendence and control over the immense mass of local interests of their respective states, which connect themselves with the feelings, the affections, the municipal institutions, and the internal arrangements of the whole population. They possess, too, the immediate administration of justice in all cases, civil and criminal, which concern the property, personal rights, and peaceful pursuits of their own citizens. They must of course possess a large share of influence; and being independent of each other, will have many opportunities to interpose checks, as well as to combine a common resistance, to any undue exercise of power by the general government, independent of direct force."
Concerning the general welfare clause, Joseph Story remarked: ". . . The constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of a general and unlimited powers. This is apparent . . . from the history of the proceedings of the convention, which framed it; and it has formed the admitted basis of all legislative and judicial reasoning upon it, ever since it was put into operation, by all, who have been its open friends and advocates, as well as by all, who have been its enemies and opponents. If the clause 'to pay the debts and provide for the common defense and general welfare of the United States,' is construed to be an independent and substantive grant of power, it not only renders wholly unimportant and unnecessary the subsequent enumeration of specific powers; but it plainly extends far beyond them, and creates a general authority in Congress to pass all laws, which they may deem for the common defense or general welfare. Under such circumstances, the constitution would practically create an unlimited national government. The enumerated powers would tend to embarrassment and confusion; since they would only give rise to doubts, as to the true extend of the general power, or of the enumerated powers. . . ."
The Government of the United States was originally conceived as a limited government, and we find frequent references to the "limited" nature of the government conceived by the founding fathers in Story's writings. Story stated firmly: ". . . If the power to provide for the common defense and general welfare is an independent power, then it is said, that the government is unlimited, and the subsequent enumeration of powers is unnecessary and useless. , . ,"
At another place in his Commentaries he wrote of the general welfare clause: ". , . A power to lay taxes for any purposes whatsoever is a general power; a power to lay taxes for certain specified purposes is a limited power, A power to lay taxes for the common defense and general welfare of the United States is not in common sense a general power. It is limited to those objects It cannot constitutionally transcend them. If the proposed by a tax be not the common defense of the United States, if the welfare be not general, but special ? or local, as contra-distinguished from national, it is not within the scope of the Constitution. If the tax be not proposed for the common defense, or general welfare but for other objects, wholly extraneous, (as for instance, for propagating Mahometanism among the Turks, or going aids and subsidies to a foreign nation, to build palaces for its Kings, or erect monuments to its heroes) it would be wholly indefensible upon constitutional principles...."
Since the early 1930s Congress has adopted a Hamiltonian interpretation of the general welfare clause to intervene with industry and commerce among the states, yet, Justice Story contended that Congress was not given power to regulate industry: ". . . Under the power to regulate commerce, Congress is not limited to the imposition of duties upon imports for the sole purpose of revenue. It may impose retaliatory duties on foreign powers; but these retaliatory duties must be imposed for the regulation of commerce, not for the encouragement of manufacturers. The power to regulate manufactures, not having been confided to congress, they have no more right to act upon it, than they have to interfere with the systems of education, the poor laws, or the road laws, of the states. Congress is empowered to lay taxes for revenue, it is true, but there is no power to encourage. protect, or meddle with manufactures. . . ."
And concerning regulating commerce among the states, Justice Story noted: ". . Commerce among the states . . . does not, indeed, comprehend any commerce, which is purely internal, between man and man in a single state, or between different parts of the same state, and not extending to, or affecting other states Commerce among the states means, commerce which concerns more states than one It is not an apt phrase to indicate the mere interior traffic of a single state. The completely internal commerce of a state may be properly considered, as reserved to the state itself."
The previous quotes taken from Story amply demonstrate that he considered the national government was of a "limited nature. "Congress is not empowered to tax for those purposes," according to Story, "which are within the exclusive province of the states." In other words, Justice Story acknowledged in his legal text on the Constitution that the framers at Philadelphia forged a "limited government," not an "unlimited" one.
Another leading legal scholar of the 19th Century was Thomas M. Cooley. Cooley was one of the Justices of the Supreme Court of Michigan and the Jay Professor of Law at the University of Michigan. In addition to his court and teaching positions, Cooley also wrote a lengthy text which was also used in the law schools of America until the early l900s. His text was entitled, A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union. The first edition was published in 1868. In Chapter 2 of the text Justice Cooley discussed the limited nature of the U.S. Constitution when he stated: "The government of the United States is one of enumerated powers; the national constitution being the instrument which specifies them, and in which authority should be found for the exercise of any power which the national government assumes to possess '"
These writers of texts on the Constitution were not the only legal scholars to express the viewpoint that the founding fathers expressly created a limited government with well defined powers. Several members of the Supreme Court also held to the "Madisonian" view of the general welfare clause. Chief Justice John Marshall frequently stated this viewpoint, as the following statements attest: "We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended."
"This instrument contains an enumeration of the powers expressly granted by the people to their government."
Also, in 1874 Justice Samuel Miller stated: "The theory of our government , . . is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers."
The basic principles of the founding fathers and the U.S. Constitution were well understood and faithfully sustained by the majority of the people from the birth of the Republic in 1789 through the first third of the present century. Since the 1930s, however, the present generation of Americans have been retreating from the economic principles and political precepts which had been earlier established by the founders. Those original institutions had previously led to unprecedented prosperity and freedom.
Since the 1930s the American people have been in the process of exchanging their former self-sustaining individualism for the lure of government-guaranteed security. The government at the national level has transformed itself from a limited sphere to an, apparently, unlimited one. The growth of government during this time period has been phenomenal. And if we are to maintain our present level of prosperity and freedom, we must begin anew the task of scaling down the growth of government by once again adhering to the concept of a limited government. By doing so we will ensure a bright future for all Americans.
8. Freedom of Religion–An Essential Ingredient of Sound Government
"Religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence," the Virginia Declaration of Rights stated in 1776, ". . . therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience."
As the thirteen colonies severed their political allegiance with Great Britain in 1776, they also began a general movement toward complete freedom of worship in America. The struggle to gain freedom of conscience, like the Revolutionary War, was fought with great intensity, particularly in Virginia, Indeed, the chief interest of the Union was centered in this colony where, since 1624, it had been under the domain of the Church of England. The state convention which met in 1776 severed political relations with England, organized a state government, adopted the famous bill of rights, and began movement toward disestablishment and freedom of religion.
The Virginia Bill of Rights, stated in its opening sections that: "All men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
"That all power is vested in, and consequently derived from the people; that magistrates are their trustees and servants, and at all times amenable to them.
"That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community. . . ."
While the Bill was written mostly by George Mason, the draft of section sixteen was written by Patrick Henry. It read: "That Religion, on the duty that we owe our Creator, and the manner of discharging it, can be directed only by reason and conviction, and not by force or violence; and, therefore that all men should enjoy the fullest toleration in the exercise of religion according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless under color of religion any man disturb the peace, the happiness, or safety of society; and, that is the mutual duty of all to practice Christian forbearance, love and charity towards each other."
James Madison, a delegate to the convention immediately objected to parts of Henry's draft on the grounds there was a "dangerous implication in the word toleration and in the clause referring to the magistrate, "Toleration belonged to a system where (there) was an established Church," Madison declared forcefully, "and where a certain liberty of worship was granted' not of right, but of grace; while the interposition of the magistrate might annul the grant."
Madison's argument proved persuasive and the obnoxious portion concerning toleration and the magistrate were sticker from the article. A new phrase, drafted by Madison, was accepted. It read: "All men are equally entitled to the full and free exercise of religion, according to the dictates of conscience."
Thus, as a result of Madison's efforts, Virginia's Bill of Rights, contained the best conception of religious liberty outside of Rhode Island. This would not be the last time Madison locked horns with Patrick Henry.
The amendment erected a new and noble platform for the concept of religious freedom as a new era of disestablishment was initiated. This resulted in the various tenets of the Church of England being taken away by law.
A short time later, the state legislature met and enacted a law exempting dissenters from the support of the Church. Another act suspended the laws which fixed the salary of the clergy. These acts were debated at each successive session of the legislature until 1779. Thomas Jefferson was the leader of the forces in the legislature seeking complete disestablishment, and Edmund Pendleton, the speaker, led the group favoring establishment.
Jefferson, writing in his autobiography, described the debates as "the severest struggles in which I have ever been engaged. . . . Although the majority of our citizens are dissenters (from the Church of England), a majority of the legislature were Churchmen. Among them, however, were some reasonable and liberal men, who enabled us on some points to obtain feeble majorities. . . . In the bill now passed was inserted an express reservation of the question, whether a general assessment should not be established by law on every one to the support of the pastor of his choice," This act was disputed "from session to session until 1779, when the question against a general assessment was finally carried, and the establishment of the Anglican Church entirely put down."
Jefferson strongly believed that the establishment of the Anglican Church was "religious slavery." He held that "It is error alone that needs the support of government. Truth can stand by itself."
The effect of disestablishment had a disastrous effect upon the Church of England as its clergy were deprived of financial support. The leading members of the Church sought to reverse its bad fortune by obtaining incorporation by the state. This was done in an act of 1784 for "Incorporating the Protestant Episcopal Church." The act contained an unusual provision which required the reporting to the general assembly revenue of any Church which exceeded L800. This provision gave the Episcopal Church a legislative preference. A year later this act would be repealed and another act passed which would annual all laws favoring the Church of England and leave the Church to manage its own affairs.
At the same time, the 1784 act incorporating the Episcopal Church was being passed, Patrick Henry introduced a "Bill Establishing a Provision for Teachers of the Christian Religion." The bill required members of the Christian religion to pay a moderate tax each year for its support because "the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society. . . ."
The bill, in order to become law, had to pass the legislature three times. It passed its first and second readings by a narrow margin, despite the vigorous opposition of James Madison and Thomas Jefferson, who were able to postpone the third reading until the next legislative session in 1785. During the meantime, Patrick Henry was elected governor and the "Bill Establishing a Provision for Teachers of the Christian Religion," was printed and distributed among the people in Virginia for their opinions. Their action resulted in a barrage of petitions for and against the bill,
The effect of Henry's bill (it had been enacted into law), would have been to establish Christianity as the religion of the state, All Christian churches would have become dependent upon the support of the legislature. And because of the public taxes which would have been levied, all non-Christians, Catholics, Jews, etc., would have been oppressed. Madison and Jefferson were opposed to such action. They desired the civil law to refrain from all discriminations, and to grant equal liberty and freedom of conscience to all sects regardless of religious belief.
In the midst of the great debate over the assessment bill, Madison, at the urging of George Mason and others, began preparing a direct appeal to the people. The finished product was entitled a "Memorial and Remonstrance Against Religious Assessments." The Remonstrance contained Madison's interpretation of freedom of worship and an attack upon all forms of establishment of religion. It embodied a concise and accurate statement of what constituted "an establishment of religion." The document was circulated among the people and gained such overwhelming support from the people that the assessment bill was abandoned without further debate in committee just before Christmas of 1785. The document is so important to our understanding of religious liberty that I will include it in its entirety. Madison stated:
"We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled "A Bill establishing a provision for Teachers of the Christian Religion," and conceiving that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill,
"1. Because we hold it for a fundamental and undeniable truth, 'that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.' The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage. and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true, that the majority may trespass the rights of the minority.
"2. Because if religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vice-regents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free government requires not merely, that the metes and bounds which separate each department of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants, The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves,
"3. Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of (the) noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle, We revere this lesson too much, soon to forget. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?
"4. Because, the bill violates the equality which ought to be the basis of every law, and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached, If all men are by nature equally free and independent, all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of conscience',' Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens; so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their religions unnecessary and unwarrantable? Can their piety alone be intrusted with the care of public worship? Ought their Religions to be endowed above all others, with extraordinary privileges, by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations, to believe that they either covet pre-eminences over their fellow citizens, or that they will be seduced by them, from the common opposition to the measure,
"5. Because the bill implies either that the Civil Magistrate is a competent Judge of Religious truth; or that he may employ Religion as an engine of Civil policy, The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world, The second an unhallowed perversion of the means of salvation.
"6. Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself; for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them; and not only during the period of miraculous aid, but long after it had been left to its own evidence, and the ordinary care of Providence: May, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence, and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies, to trust it to its own merits.
"7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation, During almost fifteen centuries, has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstitution, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy. Propose a restoration of this primitive state in which its Teachers depended on the voluntary rewards of their flocks; many of them predict its downfall. On which side ought their testimony to have greatest weight, when for or when against their interest?
"8. Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the support of Civil Government only as it is a means of supporting Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within (the) cognizance of Civil Government, how can its legal establishment be said to be necessary to civil Government? What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established clergy convenient auxiliaries. A just government, instituted to secure & perpetuate it, needs them not Such a government will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.
"9. Because the proposed establishment is a departure from that generous policy, which, offering an asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion are not bend to those of the Legislative authority. Distant as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance, The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthropy in their due extent may offer a more certain repose from his troubles.
"10. Because, it will have a like tendency to banish our Citizens. The allurements presented by other situations are every day thinning their number. To super add a fresh motive to emigration, by revoking the liberty which they now enjoy, would be the same species of folly which has dishonoured and depopulated flourishing kingdoms.
"11. Because, it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish Religious discord, by proscribing all difference in Religious opinions. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs, that equal and compleat liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State If with the salutary effects of this system under our own eyes, we begin. to contract the bonds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that 'Christian forbearance, love and charity,' which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded should this enemy to the public quiet be armed with the force of a law?
"12. Because, the policy of the bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift, ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the former' Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of (revelation) from coming into the Region of it; and countenances, by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of levelling as far as possible, every obstacle to the victorious progress of truth, the Bill with an ignoble and unchristian timidity would circumscribe it, with a wall of defence, against the encroachments of error.
"13. Because attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case where it is deemed invalid and dangerous? and what may be the effect of so striking an example of impotency in the Government, on its general authority.
"14. Because a measure of such singular magnitude and delicacy ought not to be imposed, without the clearest evidence that it is called for by a majority of citizens: and no satisfactory method is yet proposed by which the voice of the majority in this case may be determined, or its influence secured, The people of the respective counties are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assembly, But the representation must be made equal, before the voice either of the Representatives or of the Counties, will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence, that a fair appeal to the latter will reverse the sentence against our liberties.
"15. Because, finally, "the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience' is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consult the Declaration of those rights which pertain to the good people of Virginia, as the 'basis and foundation of Government,' it is enumerated with equal solemnity, or rather studied emphasis, Either then, we must say, that the will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may controul the freedom of the press, may abolish the trial by jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right of suffrage, and erect themselves into an independent and hereditary assembly: or we must say, that they have no authority to enact into law the Bill under consideration. We the subscribers say, that the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may on the one hand, turn their councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his (blessing, may re)dound to their own praise. and may establish more firmly the liberties, the prosperity, and the Happiness of the Commonwealth."
The Remonstrance reveals that Madison was opposed to every form of official relationship between civil authorities and religious institutions. To him religion was a personal matter and totally without the boundaries of government. A denial or abridgement of the liberty of conscience was an infringement upon man's natural rights. Establishments suppressed man's free exercise of religion. Ancient and European History, along with the colonial experience, proved to him that not even "three pence" should be taken from any citizen for the support of religious teachers. Not that the amount but "the principle of assessment was wrong " And the principle was designed to prevent "the interference of law in religion."
The champions of religious liberty were not content with the defeat of the Bill Establishing a Provision for Teachers of the Christian Religion." The way was now cleared for passage of Jefferson's "Act Establishing Religious Freedom " The Declaratory Act was written by Jefferson and introduced into the state legislature in 1777, however, it had never passed due to the opposition of those who favored establishment of the Anglican Church. It was not even reported to the assembly till 1779. The Act was designed to render future attempts at civil control of religion impossible. It ranks as one of the truly great charters of freedom and its authorship is one of the three things which Jefferson requested to have mentioned on his tombstone. Since Jefferson was in Europe at the time of its adoption, it was successfully guided through the legislature by his close friend, James Madison in 1785. The Act, like Madison's "Remonstrance',' is worthy of quotation, therefore I include this important document in its entirety. The Act states:
"Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their own minds; that Almighty God hath created the Mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint; that all attempts to influence it by temporal punishments, or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do, but to extend it by its influence on reason alone; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time: That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness; and is withdrawing from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind; that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right; that it tends also to corrupt the principles of that very religion it is meant to encourage. by bribing, with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that the opinions of men are not the object of civil government, nor under its jurisdiction; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government for its officers to interfere with principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them.
"We the General Assembly of Virginia do enact that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body of goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
"And though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right."
The preceding paragraph was drafted and adopted by the legislature as a declaration of opinion.
With the defeat of Patrick Henry's Bill Establishing a Provision for Teachers of the Christian Religion," and the enactment of Jefferson's "Act for Establishing Religious Freedom," a dual victory had been won ending the long struggle over established religions.
The "Act for Establishing Religious Freedom," James Madison wrote, "was always held by Mr. Jefferson to be one of his best efforts in the Cause of Liberty to which he was devoted. And it is certainly the strongest legal barrier that could be erected against the connection of church and State so fatal to the liberty of both."
By the time of the Federal Convention in 1787, there was a general consensus throughout America that the national government should not interfere in matters of religion. And the framers added a clause which declared that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
Many of the framers felt it was unnecessary to add a Bill of Rights to the Constitution, "Why declare that things shall not be done," Hamilton asked, "which there is no power to do." in other words, they were reluctant to list their natural rights because the naming of certain rights might prejudice rights not named. Therefore, the Constitution did not contain a provision insuring freedom of worship. However, delegates in the State ratifying conventions were so concerned over the absence of a Bill of Rights and a provision protecting religious freedom that ratification was jeopardized. In fact, many of the states ratified the Constitution with the express understanding that a Bill of Rights would be added as soon as the new government began operating. And the states made more than 120 specific recommendations to this effect.
After ratification of the Constitution, Congress adopted ten amendments, referred to as the Bill of Rights. They were ratified and became effective on December 15, 1791. The chief sponsor of the amendments was James Madison, who had been elected a Congressman from Virginia. Due to his skill and watchful eye, the religious clause, known as the First Amendment, was adopted by Congress and ratified by the states.
The First Amendment reads: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. . . ." The Amendment can be divided into two sections. The first part, which states that "Congress shall make no law respecting an establishment of religion. . . ," is called the establishment clause. The second part, which reads "or prohibiting the free exercise thereof. . . ," is called the free exercise clause.
When Madison introduced his original draft in Congress of the First Amendment on June 7, 1789, the establishment portion read, "nor shall any national religion be established." During the August 15, 1789 debate over the First Amendment, James Madison's views were recorded as follows: "Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the Constitution, and the laws under it, enabled them to make laws of such nature as might infringe the rights of conscience and establish a National Religion."
It seems obvious that the clause "respecting an establishment of religion" was meant to prohibit Congress from establishing a national religion for the nation as a whole, Madison's position concerning the establishment of religion seems clear. No religious sect, society, or organization should be favored or established by law in preference to others. Madison's position was identical to that of William Tennant, a Presbyterian minister from South Carolina. During the debate over disestablishment of the State Church he said: "My first, and most capital reason, against all establishments is, that they are an infringement to Religious Liberty.
"Religious establishments, as far as they operate, do interfere with the rights of private judgment and conscience: In effect, they amount to nothing less, than the legislatures taking the conscience of men into their own hands, and taxing them at discretion. . . .
"Its chief characteristics are, that it makes a legal distinction between people of different denominations; equally offensive, it taxes all denominations for the support of the religion of one; it only tolerates those that dissent from it, while it deprives them of sundry privileges which the people of the establishment enjoy."
Although Thomas Jefferson was not present during the drafting of the Constitution and played no direct role in the adoption of the First Amendment, he is still one of the founders of religious liberty in America. He played, as noted earlier, a key role in disestablishing the Anglican Church in Virginia and setting the ground work for religious freedom in America. His views are, therefore, relevant to an understanding of the First Amendment.
Jefferson's most widely quoted statement regarding religious liberty was made to the Danbury Baptists in 1802: "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no laws respecting an establishment of religion, or prohibiting the free exercise thereof,' thus budding a wall of separation between Church and State."
In this phrase, it is apparent that Jefferson is referring to a wall of separation between the Federal Government and religion, not between the States and religion. He realized that State governments were free, in those States which had established churches, to regulate religion. He acknowledged the role of state governments in relation to religion in his second inaugural address when he said: "In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government. I have therefore undertaken on no occasion to prescribe the religious exercises suited to them, but have left them, as the Constitution found them, under the direction and discipline of the Church or state authorities acknowledged by the several religious societies."
And in 1808 Jefferson declared: "I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that which reserves to the States the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the General Government. It must then rest with the States, as far as it can be in any human authority."
It should be pointed out that while Madison and Jefferson recognized that the First Amendment was designed in part to prevent the establishment of a national religion, and that it may not interfere with the religious establishments of the States, they were, nevertheless, opposed to established religions in the States also.
These two statesmen were not opposed to the Christian religion, they were merely America's foremost advocates of complete freedom of conscience. In their minds Congress and the States should make no law "respecting an establishment of religion."
Those who reject this conclusion need only to recall the role Madison and Jefferson played in the disestablishment of the Anglican Church in Virginia.
It should be pointed out that at the time the Bill of Rights were ratified, five of the original thirteen states-South Carolina, New Hampshire, Maryland, Massachusetts, and Connecticut–had officially established churches. However, by the middle of the 19th Century all of the state churches had been dismantled to a large degree and religious freedom flourished throughout America.
The authors of religious freedom were aware of the historical truism that civil and religious liberty go hand in hand and that the suppression of either one will eventually result in the termination of the other.
On July 9, 1868 the United States adopted the Fourteen Amendment. The Amendment mandated that: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Prior to the adoption of the Fourteenth Amendment, everyone, including Madison and Jefferson, agreed that the First Amendment did not apply to the States. And this viewpoint prevailed until 1940. Then in Cantwell v. Connecticut, 310 U.S. 296 (1940), the Supreme Court stated: "The fundamental concept of liberty embodied in the Fourteenth Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the States as incompetent as Congress to enact such laws."
And in Everson v. Board of Education, 330 U.S. 1 (1947), the Court held; "The 'establishment of religion' clause of the First Amendment means at least this, Neither a state nor the Federal Government can set up a church. Neither compass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa."
The First Amendment now applies equally to the States and to the Federal Government, And it not only applies to States, but every subdivision thereof: counties, townships, cities, school boards, etc.
While it is clear that Madison and Jefferson favored the disestablishment of religion at the Federal and State levels, they were, nevertheless, of the opinion that government should in no way be hostile to religion or religious bodies. While they felt that religion should be disestablished at the State level, it was the role of the State Legislatures, not Congress to do it. Nevertheless, the Supreme Court, through its interpretation of the Fourteenth Amendment has changed that procedure and thrust the Federal Government into the areas of State-religion relationships.
What should the attitude of government be toward religion. Perhaps it is appropriate to say that government should accommodate religion and not support any religion, including irreligion. While establishment of religion is clearly forbidden, accommodation is acceptable and desirable. After all, it was George Washington who stated, "Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and citizens."
The Framers of the First Amendment bequeathed to us a rich heritage of religious liberty. We have the obligation to extend this precious gift to future generations of Americans.
9. Judicial Review–Upholding the Original Intent of the Framers
"As the legislative, executive and judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution," James Madison wrote in 1834, "it follows that each must, in the exercise of its proper functions, be guided by the text of the Constitution according to its own interpretation of it. . . .
"But notwithstanding this abstract view of the co-ordinate and independent right of the three departments to expound the Constitution, the judicial department most familiarizes itself to the public attention as the expositor, by the order of its function in relation to the other departments.... "It is in the judicial department in which questions of constitutionality, as well as of legality, generally find their ultimate discussion and operative decision. . . .
"It may always be expected that the judicial bench, when happily filled will most engage the respect and reliance of the public as the surest expositor of the Constitution, as well in questions within its cognizance concerning the boundaries between the several departments of the Government as in those between the Union and its members."
It is clear from this statement that James Madison, the Father of our Constitution, was an advocate of the principle known as judicial review. No aspect of our government has "caused so much discussion, received so much admiration, and has been more frequently misunderstood" than the doctrine of judicial review. The doctrine which allows courts to declare statutes and other governmental acts unconstitutional is a major contribution to the science of government by the early Americans. In fact, a study of Supreme Court decisions is merely a study of judicial review in action. In order to understand the doctrine of judicial review whereby the Supreme Court is empowered to nullify acts of Congress contrary to the U.S. Constitution it is necessary to thoroughly explore its origin and development, And in order to do this it is necessary to understand the limited government established by the framers.
Writing in The Federalist, Madison declared that the "accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." And in order to avoid the possibility of an tyranny of any kind in America, the framers of the Constitution wisely separated the powers of government into three separate, but not equal, branches of government–executive, legislative and judicial. In addition, the framers established a system of checks and balances to keep each department from exercising all the powers of government.
Since the framers established a limited government, it is obvious that they intended the judiciary to act as a limitation upon governmental power. In order to understand the role of the judiciary in our form of government, let us turn to the Federal Convention.
The original proposal for a national judiciary is contained in the Virginia Plan, introduced by Governor Edmund Randolph. The Ninth Resolution reads, in part: "That a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; . . . that the jurisdiction of the inferior tribunals shall be to hear and determine in the first instance, and of the supreme tribunal to hear and determine in the denier resort . . . cases in which . . . citizens of other States applying to such jurisdictions may be interested . . . and questions which may involve the national peace and harmony."
While this resolution calls for the establishment of "one or more supreme tribunals, and of inferior tribunals," there is no clear cut grant of judicial review. However, the Eighth Resolution stated that; "The Executive and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate . . . and that the dissent of the said council shall amount to a rejection, unless the Act of the National Legislature be passed again . . . by of the members of each branch."
This resolution called for a council of revision to establish a system of prior judicial review, The Council was proposed four times during the proceedings of the Convention and defeated each time. In their rejection of the council, the framers decided upon the practice of subsequent judicial review. Let us look at their reasoning.
During the Federal Convention) Madison voiced a concern over the power of the legislative branch in these words: "Experience in all States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; and suggested the necessity of giving every defensive authority to the other departments that Judicial was consistent with republican principles."
Madison and his colleagues clearly remembered the oppression of the American colonies by the English Parliament and were determined to provide institutional checks against legislative dominance
Since Madison was the main author of the Virginia Plan, it is obvious that Madison was desirous to give the executive and judiciary branches a veto over legislative enactments. This veto was to be exercised by a Council of Revision consisting of a President and a convenient number of the judiciary.
Although the delegates at the Convention rejected the Council, a close examination shows they were not rejecting the doctrine of judicial review, just the right of the Council to reject legislative enactments for improper not legal reasons,
Let's look at the debate over the Council. The motion for a Council of Revision was introduced on June 4, 1787. Throughout the debate, it was understood that the courts were to possess the power of judicial review. Opponents of the Council used this fact as they argued against it. Elbridge Gerry expressed "doubts whether the Judiciary ought to form a part of it, as they will have sufficient check against encroachment on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had actually set aside laws as being against the Constitution. This was done too with general approbation. It was quite foreign from the nature of the office to make them judges of the policy of public measures."
According to Gerry, the function of the judiciary is to judge the constitutionality, not the wisdom of the laws. In opposing the Council, Gerry was saying, in effect, that the Council should keep separate the revision of laws which it might consider unwise and the rejection of laws which are clearly unconstitutional. "The right of revision," Gerry said, "should be in the executive only." An inference from his statement could be that Gerry was arguing that the right of rejection of laws should be placed solely in the judiciary after the laws had been enacted and operative.
Gerry felt that the judges would prohibit the operation of all laws which were repugnant to the Constitution and they were to expound the law "free from the bias of having participated in its formation." In other words, impartiality of the judiciary mandates that the Supreme Court not be involved in the legislative process.
In addition to the viewpoint that the Council's function should be kept separate, the delegates had a more subtle reason for rejecting it. On July 21, 1787, Luther Martin stated: "A knowledge of mankind, and of Legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature. And as to the Constitutionality of the laws, that point will come before the judges in their proper official character' In this character they have a negative on the laws, in them with the Executive in the Revision and they will have a double negative. It is necessary that the Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating against popular measures of the Legislature.
In other words, the judiciary should reject legislative enactments on grounds of unconstitutionality, not because they considered them unwise. Acting as expounders of the law, it was expected that the judges would personally be detached and disinterested in the popularity of the measures they were called up to judge the constitutionality thereof. If the judges were to assume a legislative role, then it could be assumed that they would be governed by the passions, motives and interests of fellow lawmakers.
Martin felt that the moral force of judicial decisions would be greatly undermined if members of the Supreme Court were legislators as well as judges, The judiciary should possess subsequent judicial review authority not prior authority.
Gerry, Martin and others felt that if members of the judiciary participated in the legislative process that it would bias their role as judges,
The framers therefore decided to divide the responsibilities of the Council of Revision. It was decided to let the Executive exercise a political review prior to the enactment of laws and allow the judiciary the power to examine legislative enactments after their adoption. The twin purposes of the Council were thus preserved.
Since the framers designed the judiciary branch as a check against the legislative branch, it is obvious that without the power of judicial review that it could not perform such a service. This was obvious on more than one occasion during the Federal Convention.
During the debate over ex post facto laws an additional limitation was made to include civil matters. Madison understood that the prohibition included civil as well as criminal matters. He then asked a question concerning the additional limitation. "Is not that already done by the prohibition of ex post facto laws, which oblige the Judges to declare such interference null and void?" Madison was merely calling the delegates attention to the fact that the judges will be empowered to declare unconstitutional legislation null and void.
On September 12, 1787 ? the question surfaced where the states might not evade the prohibition against export duties. Madison declared that judicial review by the Supreme Court would provide a remedy.
Nathaniel Gorham of Massassachusetts and John Langdon of New Hampshire asked the question: How was redress to be obtained in case duties should be laid beyond the purpose expressed?" Madison answered: "There will be the same authority as in other cases, The jurisdiction of the supreme court must be the source of redress." This was the "provision made by the plan against injurious acts of the states." The "plan" included the exercise of judicial review by the Court. And when the question of how the new Constitution was to be ratified came before the Convention, Madison opposed ratification by the legislature on the grounds that it would enhance legislative supremacy and undermine the doctrine of judicial review. He claimed that "it would be a novel and dangerous doctrine that a Legislature could change the constitution under which it held its existence."
While arguing for ratification by convention he stated that:
"He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1. A Law violating a treaty ratified by a preexisting law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves would be considered by the Judges as null & void. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it."
It is clear that Madison opposed the adoption of the Constitution by the legislature since it would make the new charter a mere treaty. He said a "law violating a treaty" might be respected by the judges; however, a "law violating a constitution" would be declared null and void. Thus Madison went on record not only in favor of constitutional conventions, but favoring judicial review.
While these statements provide documentation that judicial review was accepted by Madison and others during the Convention, the doctrine is also implied in the supremacy clause which outlines that: "This Constitution, and the Laws of the United States which shall be made in Judicial Review Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." It would be impossible for the Supreme Court to uphold this provision without being able to exercise judicial review of acts which might be contrary to the Constitution.
A reading of the proceedings of the Federal Convention and the Constitution itself indicate that the Framers intended that the judiciary serve as a check upon governmental power.
Let us now turn our attention to the role of the judiciary as outlined in the Federalist. This volume is considered the classic commentary on the U.S. Constitution, and the plan of government envisioned by the framers. Of all the framers' the most outspoken advocate of the judiciary was Alexander Hamilton. Federalist No. 78 deals specifically with the relationship of the judicial and legislative branches.
Hamilton declared that the judges are the "faithful guardians of the Constitution," and that the "courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments." While the judiciary is to play an important role in the national government, it is nevertheless the ''weakest of the three departments of power."
Concerning the independence of the courts, he declared: "The complete independence of the courts of justice is peculiarly essential in a limited Constitution, By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts Judicial Review Page 10 of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."
Since there was still some confusion over the roles of the judiciary and legislative branches, Hamilton attempted to clarify this situation by stating: "Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable.
"There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid, To deny this would be to affirm that the deputy is greater than his principal' that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize ? but what they forbid.
"If it be said that the legislative body are themselves the constitutional judges of their own powers and that the construction they put upon them is conclusive upon the other departments it may be answered that this cannot be the natural presumption where it is not to be collected from any particular provisions in the Constitution, It is 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, It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power, It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental." Hamilton freely admits that "no legislative act , . . contrary to the Constitution can be valid." He also outlines that the "interpretation of the laws is the proper and peculiar province of the courts." A "constitution is, in fact, and must be regarded by the judges as, a fundamental law." And it is the role of the judges "to ascertain its meaning" and any act "proceeding from the legislative body," If there is a controversy between the Constitution and a legislative statute, the '[Constitution ought to be preferred to the statute."
In other words, he maintained, "whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former."
It was Hamilton's assertion that the courts "must declare the sense of the law. . . ."
The Federalist essays clearly outline that the Supreme Court would become the ultimate arbiter of the American constitutional system.
While the proceedings of the Federal Convention, the Constitution itself and the Federalist accent the desire of the framers to empower the courts with authority to "declare all acts contrary to the manifest tenor of the Constitution void; "it is quite clear that the scope of judicial power was decided upon shortly after the new government began functioning. Section 25 of the Judiciary Act of 1789 laid the foundation for the Marshall era and cleared the path for the triumph of judicial review. It reads: "And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute."
The Act granted to the Supreme Court the right to review decisions the highest state courts concerning federal or constitutional questions. No doubt, the framers of the Judiciary Act of 1789 believed that the Supreme Court would exercise the power of judicial review.
Even before the famous case of Marbury v. Madison was decided, history reveals that the Supreme Court was already embarked upon the course of judicial review.
In 1796 Chief Justice John Jay in Chisholm v. Georgia declared that the Court was vested by the Constitution with jurisdiction over controversy between a state and a citizen from a different state, Jay stressed the importance of a "national judiciary" which was responsible to "the whole nation." Extending federal judicial power to jurisdictional controversies between the states was wise and useful, Jay felt.
Three years later, Justice Samuel Chase in Ware v. Hylton invalidated a Virginia statute of the Confederation era, declaring that all treaties concluded prior to the adoption of the Constitution and all statutes contrary to a treaty were to be "disregarded." With these precedents in place, it would seem natural that the counsel in Calder v. Bull was requesting the Court to declare any statute which contravenes the Constitution invalid.
In 1803 John Marshall declared in Marbury v. Madison that an "act of the legislature, repugnant to the Constitution, is void." This famous decision launched a new era in American jurisprudence as the doctrine of judicial review was enthroned in constitutional law.
Although there are legal scholars who feel that the framers never granted to the Supreme Court the power to review acts of Congress, it is important to recall the words of James Madison, the chief architect of the Constitution. He stated that: "The Constitution of the U.S. was created by the people composing the respective States, who alone had the right; that they organized the Government into Legislative, Executive and Judiciary departments delegating thereto certain portions of power to be exercised over the whole, and reserving the other portions to themselves respectively. As these distinct portions of power were to be exercised by the General Government and by the State Governments; by each within limited spheres; and as of course controversies concerning the boundaries of their power would happen, it was provided that they should be decided by the Supreme Court of the U.S., so constituted as to be as impartial as it could be made by the mode of appointment and responsibility for the judges."
According to Madison, who knew the original intention of the Convention better than any other delegate, judicial review was granted to the judiciary.
Since judicial review plays such an important role in checking not only the legislative but executive branch, it is proper to ask what prohibitions exist to curb or check the power of the judiciary and prevent it from exercising legislative powers.
The first major inhibitor of judicial power is the Constitution itself. It goes without saying, almost, that the judicial branch can exercise only those powers granted unto it in the Constitution. Second, since the Constitution is the Supreme law of the land, it is incumbent upon the judicial branch to uphold the Constitution as it was originally conceived and ratified. The judges have no authority to repeal any provision of the Constitution.
Third, the judicial branch is not to amend the Constitution under the guise of judicial review. It is empowered only to declare an act unconstitutional, not to pass upon its wisdom or impropriety. The court is not a super legislature and has no authority to act as such. Judges are empowered only to interpret the Constitution, not rewrite it by adding certain words to certain clauses.
Fourth, the judges must decide and justify their decisions upon Constitutional grounds. The real question in every case of the Supreme Court is whether it conforms to the Constitution as originally conceived. The judges are duty bound to uphold the original intentions and purposes of each clause of the Constitution. This calls for a strict interpretation of the Constitution. On every question of construction the judges were to refer to the Spirit of the Constitution as manifested at the time of its adoption and ratification.
As Thomas Jefferson counseled: "On every question of construction (we should) carry ourselves back to the time, when the Constitution was adopted; recollect the spirit manifested in the debates; and instead of trying (to find), what meaning may be squeezed out of the text, or invented against it, conform to the probable one, in which it was passed."
James Madison gave advice similar to Jefferson's when he stated that if "the sense in which the Constitution was accepted and ratified by the Nation . , , be not the guide in expounding it, there can be no security for a consistent and stable government, more than for a faithful exercise of its powers."
The text of the charter and the original intent of the framers were to serve as the judicial standard in interpreting the Constitution, "Our peculiar security is in the possession of a written constitution," Thomas Jefferson said. "Let us not make it a blank paper by construction."
The basic rule of interpretation was also stated by the Supreme Court in South Carolina v. United States, in 1905:
"The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now. Being a grant of powers to a government its language is general, and as changes come in social and political life it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This is no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them, and those things not within them remain still excluded. As said by Mr. Chief Justice Taney in Dred Scott v. Sandford, 19 How, 393, 426;
"'It is not only the same in words, but the same in meaning' and delegates: the same powers to the Government, and reserves and secures the same rights and privileges to the citizens; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States, Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.
"'It must also be remembered that the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life as they understood them, putting into form the government they were creating, and prescribing in language clear and intelligible the powers that government was to take.' Mr. Chief Justice Marshall, in Gibbons v, Ogden, 9 Wheat. 1, 188, well declared:
"'As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said."'
In construing the Constitution, judges are mandated to interpret the document in light of the original intent of the framers It is also clear that the noble men who fashioned our Constitution in 1787 did not intend for the judiciary to be a forum for the shaping of public policy, That was the role of the legislative branch. The judges were simply mandated to be the "faithful guardians of the Constitution," and to act as a check against unconstitutional expansion of power by either the executive or legislative branch. The Constitution is to reign supreme throughout the land, thereby allowing an energetic, but limited, government to promote the welfare and happiness of the people.
10. Treaty-Making Power–Its Inherent Limitations
Since the founding of our Republic, Americans, through their elected representatives in Congress, have enacted their own laws without foreign interference, They have been proud of the right of self-government. In recent years, however, a new procedure has developed whereby Americans have found themselves bound by laws not made by their elected representatives in Congress, but by various international bodies and agencies. These laws have been put into operation through the treaty process. The concept of legislative treaties raises several important questions such as: What is the extent of the treaty-making power of the President and Senate of the United States? Is the treaty-making power limited or unlimited?
In order to answer these questions let us look at the Constitution, the statements of the Framers, eminent statesmen, text writers and opinions of the Supreme Court.
There are four clauses in the Constitution which deal with the treaty-making power. First, Article 1, Section 10, Clause 1, a prohibition on the states, explains: "No State shall enter into any treaty, alliance, or confederation." Second, Article II, Section 2, Clause 2, a repository of power, reads: "He (the President) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators concur." Third, Article III, Section 2 gives the federal courts jurisdiction in cases originating under treaties. It reads: "The judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States and treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding "
Article 1, Section 10, Clause 2, does not mention treaties by name; however, it mandates that: "No State shall, without the consent of Congress, enter into any agreement or compact with another State or with a foreign power.... "
A reading of the provisions I have just quoted indicate that the treaty-making power is not specifically limited or unlimited. However, a majority of the legal scholars, text writers and early statesmen of the Eighteenth and Nineteenth Centuries, who have written on the subject of treaty-making power, agree that its power is limited.
James Madison, in discussing the treaty-making power, stated; "Does it follow, because this power (treaty-making) is given to Congress, that it is absolute and unlimited?
"I do not conceive that power is given to the President and Senate to dismember the empire, or to alienate any great, essential right I do not think the whole legislative authority have this power The exercise of the power must be consistent with the object of its delegation "
Madison is not alone in his views that the treaty-making power is subject to several important restrictions. Justice Field in Geofroy v. Riggs stated: "The treaty power, as expressed in the Constitution, is in terms unlimited, except by those restraints which are found in that instrument against the action of the government, or of its departments, and those arising from the nature of the government itself, and of that of the States." Chief Justice Taney declared in Holmes v. Jennison that: "The Power to make treaties is given by the Constitution in general terms, without any description of the objects intended to be embraced by it, and consequently it was designed to include all those objects which, in the ordinary intercourse of nations, had usually been made subjects of negotiation and treaty, and which are consistent with the nature of our institutions and the distribution of powers between the general and state governments." And Justice Daniel in the License Cases affirmed that: "Laws of the United States in order to be binding must be within the legitimate powers vested by the Constitution. Treaties to be valid must be within the scope Treaty-making of the same powers, for there can be no 'authority of the United States' save what is derived mediately or immediately and regularly and legitimately from the Constitution. A treaty no more than an ordinary statute can arbitrarily cede away any one right of a state or of a citizen of a state."
It seems clear that the treaty-making power is inherently limited by the other provisions of the Constitution. And it is important to remember that the founding fathers established a limited government, not an unlimited one. "The powers delegated by the proposed Constitution to the federal government, are few and defined," James Madison wrote in The Federalist. "Those which are to remain in the state governments, are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation, will for the most part, be connected. The power reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state."
A treaty then would be clearly unconstitutional if: (1) it altered the form of our government or Constitution; (2) it altered the general departmental construction of the government; (3) it altered the structure o£ any of the departments, (4) it undermined or withdrew from one branch of the Federal Government any of its delegated powers and bestowed them upon another department or the States; (5) it undertook to exercise a power specifically granted to another department of the Federal Government; and (6) it attempted to bestow upon the Federal Government a power prohibited to it or reserved to the states.
Let us now discuss each of these six areas. First, a treaty would be unconstitutional if it altered the form of our government or Constitution. It is clear that a treaty which transformed our republic into a monarchy would be unconstitutional, Why?
Alexander Hamilton answered this question in a letter to George Washington, dated July 9, 1795, when he stated that: "A treaty cannot be made which alters the Constitution of the country, or which infringes any express exceptions to the power of the Constitution of the United States."
Justice Joseph Story, who was nominated for the Supreme Court by President James Madison, agreed with Hamilton. He wrote in his Commentaries on the Constitution:
"The power 'to make treaties' is by the Constitution general; and of course it embraces all sorts of treaties, for peace or war, for commerce or territory; for alliances or succors; for indemnity for injuries or payment of debts; for the recognition and enforcement of principles of public law; and for any other purposes which the policy or interests of independent sovereigns may dictate in their intercourse with each other. But though the power is thus general and unrestricted, it is not to be so construed as to destroy the fundamental laws of the state. A power given by the Constitution cannot be construed to authorize a destruction of other powers given in the same instrument. It must be construed, therefore, in subordination to it; and cannot supersede or interfere with any other of its fundamental provisions. Each is equally obligatory, and of paramount authority within its scope; and no one embraces a right to annihilate any other. A treaty to change the organization of the Government, or annihilate its sovereignty, to overturn its republican form, or to deprive it of its constitutional powers, would be void: because it would destroy, what it was designed merely to fulfill, the will of the people. Whether there are any other restrictions necessarily growing out of the structure of the Government, will remain to be considered whenever the exigency shall arise,"
Thomas M. Cooley, another prominent lawyer and legal textbook writer of the Nineteenth Century, outlined in his Principles of Constitutional Law that: "The Constitution imposes no restriction upon this power (treaty-making), but it is subject to the implied restrictions that nothing can be done under it which changes the Constitution of the country, or robs a department of the government or any of the States of its constitutional authority,"
The limitations which are upon the treaty-making power are due to the fact that the power is itself a delegated power and it stands on no higher plane than any other delegated power in the Constitution. It would be difficult to believe that the Framers had given the President and two-thirds of the Senate power to alter the Constitution or any department thereof. The treaty-making power is indeed a limited power. There is also a stream of dictum running through the opinions of the Supreme Court which clearly state "that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument;" that the treaty power, as expressed in the Constitution "is limited by those restraints which are found in that instrument," and it does not extend "so far as to authorize what the Constitution forbids," and that the treaty-making power remains "subject to prohibitions within the Constitution,"
It hardly goes without saying then that a treaty cannot change the Constitution or any department of government and it cannot authorize what the Constitution itself prohibits and eliminate any power thereof. This is a fundamental principle of constitutional law.
Second, a treaty would be unconstitutional if it altered the general departmental construction of the government. The same arguments which we have just outlined apply here as well. No serious student of constitutional law or any court empowered to interpret the Constitution would support a treaty designed to abolish one of the three main branches of government–the legislative, executive, and judicial. The reason: a treaty cannot change any provision of the Constitution. Why? Because the Constitution is the supreme law of the land and all treaties must conform to its provisions.
Third, a treaty would be unconstitutional if it altered the structure of any of the departments of the Federal Government. If it is admitted that the President and the Senate cannot execute a treaty which alters the Constitution or the three main branches of government, then it is obvious that a treaty providing that each state shall have three senators, or that members of the House of Representatives shall be appointed by the President, or that members of the Supreme Court should be elected every four years would be unconstitutional. Why? The same answer applies here as before. No treaty can alter the Constitution or any part thereof.
Fourth, a treaty would be unconstitutional if it undermined or withdrew from one branch of the Federal Government any of its delegated powers and bestowed them upon another department or the States. It is admitted that the treaty which undertook to deprive the Congress of its power over interstate commerce and bestow it upon the States would clearly be unconstitutional. Why? The same answer applies once again. A treaty cannot alter the Constitution or deprive any of the branches of the Federal Government of any of its delegated powers and bestow them upon another branch of government or upon the States.
Fifth, a treaty would be unconstitutional if it undertook to exercise a power specifically granted to another department of the Federal Government. The Constitution specifies that Congress is empowered to lay and collect taxes, duties, imposts, and excises; borrow money on the credit of the United States; regulate commerce with foreign nations and among the several states; establish uniform rules of naturalization; establish uniform laws dealing with bankruptcies; coin money and regulate the value thereof; provide for the punishment of counterfeiting the securities and coin of the United States; establish post offices and post roads; constitute tribunals inferior to the supreme court; declare war; raise and support armies; etc.
If these powers are conferred upon Congress, can the President transfer them to the Executive Branch through a treaty? Once again the answer is no. A treaty may not alter the Constitution or transfer powers confined to a specific branch of government to another branch.
Sixth, a treaty would be unconstitutional if it attempted to bestow upon the Federal Government a power prohibited to it or reserved to the States. Some powers of the Constitution are forbidden by the United States such as Article 1, Section 9, Clause 7, which states: "No title of nobility shall be granted by the United States." Some powers are forbidden in general terms such as Article VI, Clause 3, which requires that "no religious test shall ever be required as a qualification to any office or public trust under the United States." Other powers are forbidden especially to one department of the Federal Government such as the First Amendment which states that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."
It would be inconceivable that a treaty could be enacted which sought to bestow a title of nobility upon an American citizen, or provide that a religious test be administered to every U.S. Senator, or establish the religion of secularism as the national religion of America. Thus, it is quite apparent that the treaty-making power is indeed limited by the provisions of the Constitution and the amendments thereto.
The provisions of the Constitution are "as sounding brass, or a tinkling cymbal" if the treaty power may override them.
As Justice Swayne stated in United States v. Rhodes: "A treaty is declared by the Constitution to be the law of the land," but notes, "What is unwarranted or forbidden by the Constitution can no more be done in one way than in another. The authority of the national government is limited, though supreme in the sphere of its operation. As compared with the State governments, the subjects upon which it operates are few in number. Its objects are all national. It is one wholly of delegated powers. The States possess all which they have not surrendered; the government of the Union only such as the Constitution has given it, expressly or incidentally, and by reasonable intendment."
Article VI, Clause 2, which states: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which be made, under the authority of the United States, shall be the supreme law of the land, , . ."
If this article is considered by itself, it seems to contain a sweeping grant of power without restraint or limitation The error which has crept into the writings of authors who claim the treaty-making power is virtually unlimited appears to arise from the consideration of this clause by itself as if it were an independent and separate part of the Constitution. They fail to consider that the treaty-making power is a part and only a part of the Constitution, and it must be construed in its relation to all other sections of it in its entirety.
Judges of the Supreme Court have consistently pointed out that a proper construction of the Constitution and any part thereof must take into consideration the unity of the whole charter.
Article VI, Section 2, declares supremacy to "treaties," "this Constitution" and to the "laws which shall be made in pursuance thereof." Each of them are the supreme law of the land. It would seem inconceivably that three supreme powers could co-exist in one constitution. Why? Because the grant of "supremacy" to one negatives the same grant to another. The necessity of a reconciliation of this dilemma was forced upon the Supreme Court early in our Republic. In Foster v. Neilson and The Cherokee Tobacco Case, the Court decided that a subsequent treaty annulled a prior act of Congress, and interchangeably, a subsequent Act of Congress annulled a prior treaty, demonstrating that one supreme power could annul another supreme power.
That an Act of Congress may supersede a treaty and a treaty may replace an Act of Congress demonstrates the quality of each; however, the Court in effect denied the absolute supremacy of the one over the other.
Therefore, Article VI, Section 2, contains a limited or divided supremacy. Obviously, each cannot be supreme if either one of the other powers may eliminate it, And the supremacy of the Constitution forbids treaties to annul any of its provisions. As noted by Henry St. George Tucker, former Dean of George Washington University, the supremacy of the Constitution "would not permit the treaty power to abrogate or annul other powers granted to any branch o£ the Federal Government. The long list of enumerated powers granted in this instrument to the Congress cannot be absorbed or annihilated by the treaty-making power because these powers, being pares of the Constitution, are supreme under Article VI. To hold otherwise would be to recognize only chaos and confusion in the interpretation of the Constitution, A due regard to the proper construction of any instrument, requiring that all parts of it must be made effective if possible, would certainly deny the right of the treaty-making power to annihilate others equally important and equally supreme."
This view has been adhered to in our day by various justices of the Supreme Court. Writing in Reid v. Covert, Justice Black stated there is nothing in Article VI "which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result, These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in 'pursuance' of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights–let alone alien to our entire constitutional history and tradition–to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article 7, The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.
"There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over the treaty."
Our safety, as Americans, lies in the retention of a written constitution. As noted by Henry St. George Tucker, it "would be to convict the framers of the Constitution of a lack of foresight, which cannot properly be imputed to them, to suppose they intended to give to this treaty-making power unlimited scope to absorb every right or the people of the States, against which they had so carefully guarded in the enumeration of the powers of Congress and by the reservations in the Tenth Amendment. The powers of Congress, the Executive, and the Judiciary were enumerated in detail. And all powers not granted were, under the Tenth Amendment, reserved to the States or to the people respectively. Of what avail is it to know that the framers of the Constitution securely preserved to the people their sacred local rights from the grasp of Congress, the President, or the Judiciary, if they can be absorbed under the treaty-making power?"
Can it be doubted that if the treaty-making power is unlimited it contains the power to destroy the basic principles of the Constitution and transform America into a monarchy, a socialist nation or a regional government in a world society.
"If the establishment of an 'unlimited' treaty power it to be the ultimate conclusion on this great question," Henry St. George Tucker stated, "it must be admitted that the incorporation of the treaty making power into the Constitution of the United States was the introduction into our governmental citadel of a Trojan Horse, whose armored soldiery, for years concealed within it, now step forth armed cap-a-pie, shameless in their act of deception, eager and ready to capture the citadel upon which they pretended to bestow their gift. If such construction be possible it would be of interest to know for what purpose the Tenth Amendment was ever demanded and incorporated into the Constitution."
We may safely state that a treaty cannot: change the form of government of the United States; bind the United States to do what is expressly or impliedly forbidden in the Constitution; take away or impair the fundamental rights and liberties of the people secured in the Constitution or any Amendment; allow a certain department to exercise a power which is denied to it and given to another department by the Constitution or reserved to the States; bestow a power upon the Federal Government which is prohibited by the Constitution or reserved to the States.
The treaty-making power of the U.S. Constitution was designed by the Framers to deal with foreign nations; it was not designed as a mechanism for the enactment of laws drafted by international bodies and agencies which undermine our legislative process and sovereignty. If we are to maintain our heritage of self-government, we must use the treaty-making power cautiously and wisely in the days ahead.
11. The Federalist– America's Classic Commentary on the Constitution
The United States has produced four historical documents and one book of inestimable value: the Declaration of Independence, the Constitution, the Farewell Address of President George Washington, the Monroe Doctrine and The Federalist. I would like to discuss America's foremost political classic–The Federalist.
On September 17, 1787, the Federal Convention completed the drafting of the U.S. Constitution after nearly four months of arduous labor. The new charter was then sent to the Continental Congress with a request that it be submitted to conventions of the people in the various states for their acceptance or rejection–a process called ratification.
The result of the Convention's recommendation was that America was immediately turned into one vast debating society. For the next nine months, public speakers, pamphleteers, newspapers and delegates to the State ratifying conventions argued over ratification of the Constitution. At no other time in our history has there ever been a comparable period when the principles of government were so universally discussed by the people of America.
Even before the Convention finished drafting the Constitution, it was known that a powerful faction in the state of New York was preparing to oppose it. An attempt had been made prior to the Federal Convention by the state in its instructions to her delegates to insert a restriction that any alterations made in the Articles of Confederation "should be not repugnant to, or inconsistent with, the Constitution of this State."
The motion lost by one vote, however, and the delegates were then restricted to "the sole and express purpose of revising the Articles of Confederation."
When the Convention adopted the Virginia Plan, thus setting aside the Articles of Confederation, two of New York's three delegates, Robert Yates and John Lansing, Jr., withdrew from Philadelphia on the grounds that the delegates were exceeding their authority. Shortly thereafter, Yates and Lansing united in a public letter of protest to George Clinton, Governor of the state. Hamilton opposed his colleagues and signed the Constitution.
Thus the battle lines over ratification were firmly in place even before the ink had dried on the final draft of the Constitution. The new document was published in the New York press on September 27, 1787, and on the same day there appeared in the New York Journal, the organ of the New York establishment, a letter signed by "Cato," sharply attacking the Constitution and the plan of government it opposed. The letter was written by Governor Clinton and demonstrates the degree of opposition which was already in operation.
Those who opposed the Constitution were labeled "Anti-federalists" by their opponents. And those who favored the Constitution were called "Federalists."
From the latter part of September of 1787 until New York's Assembly met in January, Governor Clinton attacked the Constitution in a series of letters. More dangerous than Cato's letters, however, was another series which appeared under the name of "Brutus." This series of letters was written by Robert Yates, judge of the State Supreme Court. He was also the delegate who had withdrawn from the Federal Convention when it became clear that the delegates were fashioning a strong national government to supersede the league established by the Articles of Confederation.
Brutus and Cato were also joined by a host of other writers who vehemently denounced the new Constitution.
After the Convention had finished its work, Hamilton and Madison returned to New York. The letters by Brutus, Cato and others outraged Hamilton. Three days after the publication of Cato's first letter, Hamilton wrote a highly personal warning to the Anti-federalists–that they endorse the Constitution or face the consequence of having a government forced upon them. Cato responded to Caesar stating that in the future no notice would be given to his remarks. Hamilton realized his lack of tack and that the personal note of the appeals were a detriment to his goals. Therefore, he abandoned Caesar's approach and embarked upon a new plan to attack his adversaries. "Since my last," he wrote presumably to George Washington, "the chief of the state party has declared his opposition to the government proposed, both in private conversation and in print. That you may judge of the reason and fairness of his views I send you the two essays, with a reply by 'Caesar.' On further consideration it was concluded to abandon this personal form, and to take up the principles of the whole subject. These will be sent to you as published, and might with advantage be republished in your gazettes."
Not only Hamilton's friends new of the change of strategy in opposing the Anti-federalist, for the New York Journal announced that, "a writer in the state of New York, under the signature of 'Caesar,' came forward against the patriotic 'Cato,' and endeavored to frighten him from starting any objections, and threatened that 'Cato' would be followed by 'Caesar' in all his marches; but we find that as soon as ever 'Cato' came freely to discuss the merit of the constitution, 'Caesar' retreated and disappeared; and since that a publication under the signature of 'Publius' has appeared in that state."
To write a series of essays on the "principles of the whole subject," or the new Constitution and form of government it proposed was a monumental task. Hamilton realized that to prepare the essays before the assembling of the New York State ratifying convention, possibly before the election of members of that body and to successfully counter the myrid of arguments advanced by Cato, Brutus and others involved an effort which he alone was incapable. Therefore, Hamilton sought the aid of John Jay, then Secretary of Foreign Affairs, and James Madison, a member of the Continental Congress from Virginia. Apparently Jay was assigned the role of discussing the foreign affairs aspects of the new government, Madison was to deal with the historical and theoretical underpinnings upon which the Constitution was based, along with an analysis of the general powers of the proposed government, Hamilton planned to discuss the defects of the Articles of Confederation and various parts of the Constitution.
The result of their combined efforts produced 84 newspaper essays and 85 papers when they were published in book form. One essay was later divided. The magnitude of their labor can be seen when compared with the writings of Brutus, the Anti-federalists' most able writer. He only produced sixteen letters, and the period of publication for both Publius and Brutus were nearly the same.
Federalist No. 1, addressed to "The People of the state of New York," appeared in the Independent Journal on October 27, 1787. Subsequent essays appeared in the Journal and three other New York newspapers–The New York Packet; The Daily Advertiser; and The New York Journal and Daily Patriotic Register over the next seven months, The last essay appeared on August 16, 1788, although the last few essays had been written several months earlier.
The first book edition, which included the first thirty-six essays, was published by J. and A. McLean of New York on March 22, 1788. The second volume, containing the remainder of the essays, was published on May 28, 1788. It should be pointed out that the Hopkins edition of 1802 was authorized by Hamilton, and the 1819 Gideon edition was authorized by Madison. Both editions contain the authors' corrections.
No one knows for sure how much influence the Federalist gained in New York, however, copies of most, if not all, of the essays were mailed by the Federalists to friends and interested parties in other states. Many of them were reprinted and collectively assumed the role of a debater's handbook for adoption of the Constitution. It is safe to say that the essays circulated widely and quickly throughout America, For example, Hamilton sent Governor Edmund Randolph fifty-two sets of the Federalist after they were printed in book form for use during the Virginia state ratifying convention. Randolph served as chairman.
Needless to say, New York and Virginia did ratify the Constitution, although it had already been ratified by a majority of the states.
The purpose of the Federalist was to create a favorable climate of opinion conducive to the adoption of the Constitution in New York. It served its purpose well as copies were circulated throughout other states, particularly in Virginia and used by both Federalists and Anti-federalists to support and malign the Constitution.
It should be pointed out that, due to the scholarly approach of the Federalist they were not read that religiously by the public at large. In other words, the Federalist probably influenced few votes among the populace. Its chief value seems to have come when bound volumes were circulated among delegates to the Virginia and New York ratifying conventions.
"The haste," wrote James Madison, "with which many of the papers were penned in order to get through the subject while the Constitution was before the public, and to comply with the arrangement by which the printer was to keep his paper open for four numbers every week, was such that the performance must have borne a very difficult aspect without the aid of historical and other notes which had been used in the Convention, and without the familiarity with the whole subject produced by the discussions there. It frequently happened that, while the printer was putting into type parts of a number, the following parts were under the pen and to be furnished in time for the press."
Yet, despite these trying circumstances, Madison, Hamilton and Jay produced a work that has come to be recognized as a classic commentary on the U.S. Constitution and upon the plan of republican government. "It would be difficult," a critic wrote in 1788, "to find a treatise which, in so small a compass, contains so much valuable political information, or in which the true principles of republican government are unfolded with such precision." Thomas Jefferson, in a letter to James Madison in November 18, 1788, pronounced it, "the best commentary on the principles of government which has ever been written."
Alexis de Tocqueville called it "a fine book" and one which "should be familiar to statesmen of all countries."
"I know not, indeed," Chancellor Kent wrote, "of any work on the principles of free government that is to be compared in instruction and in intrinsic value, to this small and unpretending volume of the Federalist, not even if we resort to Aristotle, Cicero, Machiavel, Montesquieu, Milton, Locke, or Burke. It is equally admirable in the depth of its wisdom, the comprehensiveness of its views, the sagacity of its reflections, and the fearlessness, patriotism, candor, simplicity, and elegance with which its truths are uttered and recommended."
And George Ticknor Curtis, writing in his well known work entitled, History of the Constitution, stated the following concerning the Federalist: "The extraordinary forecast with which its luminous discussions anticipated the operation of the new institutions, and its profound elucidation of their principles, gave birth to American constitutional law, which was thus placed at once above the field of arbitrary construction, and in the domain of legal truth. They made it a science; and so long as the Constitution shall exist, they will continue to be resorted to as the most important source of co-temporaneous interpretation which the annals of this country afford."
"The Federalist," Chief Justice John Marshall declared in Cohens v. Virginia, in 1821, "has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the question to which that instrument has given birth. Its intrinsic value entitles it to its high rank, and the part two of its authors performed in framing the Constitution put it very much in their power to explain the views with which it was framed "
"The Federalist," James Madison wrote in a letter to Thomas Jefferson on February 8, 1825, "may fairly enough be regarded as the most authentic exposition of the text of the federal Constitution, as understood by the Body which prepared and the Authority which accepted it."
In addition to Jefferson, George Washington also had a high opinion of the Federalist. In a letter to Alexander Hamilton, dated August 28, 1788, he said; "As the perusal of the political papers under the signature o£ Publius has afforded me great satisfaction, I shall certainly consider them as claiming a most distinguished place in my library. I have read every performance which has been printed on one side and the other of the great question lately agitated (so far as I have been able to obtain them) and, without an unmeaning compliment, I will say, that I have seen no other so well calculated (in my judgment) to produce conviction on an unbiased Mind, as the Production of your triumvirate. When the transient circumstances and fugitive performances which attended this Crisis shall have disappeared, That Work will merit the Notice of Posterity; because in it are candidly and ably discussed the principles of freedom and the topics of government, which will be always interesting to mankind so long as they shall be connected in Civil Society."
Chancellor James Kent wrote about the Federalist: "There is no work on the subject of the Constitution, and on republican and federal government generally, that deserves to be more thoroughly studied."
Although the Federalist was intended to be a series of essays on the Constitution and the concept of republican government, it is as much a legal brief as it is a philosophical commentary. One historian of the Supreme Court stated, "that for comprehensiveness of design, strength, clearness, and simplicity, the book has no parallel among the writings of men, not even excepting or overlooking those of Montesquieu and Aristotle." Hampton L. Carson noted that the Federalist, "has been seriously and reverently called the Bible of Republicanism."
The Federalist has been praised over the generations as "an authoritative analysis of the Constitution of the United States and an enduring classic of political philosophy that takes its place in history beside the Constitution itself." It is also "valued not merely as a clever defense of a particular charter, but an exposition of certain timeless truths about constitutional government."
The Federalist is in reality four books in one: first, it explains the positive attributes of the Federal Government; second, it details the clear deficiencies of the Articles of Confederation; third, it provides a masterful analysis of the complexities of the Constitution and the plan of government it ordained, and fourth; it outlines the blessings of self-government and liberty As Clinton Rossiter has noted: ''The message of the Federalist reads: no happiness without liberty, no liberty without self-government, no self-government without constitutionalism, no constitutionalism without morality–and none of these great goods without stability and order."
Since the Federalist is full of numerous sparkling gems of political wisdom, let me share with you a few quotes by Alexander Hamilton to demonstrate its richness and applicability in our day.
"It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force."
"A dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government, History will teach us that the former has been a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants."
"The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representative of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principle progress toward perfection in modern times. They are means, and powerful means, by which the excellencies of republican government may be retained and its imperfections lessened or avoided."
"Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint."
"A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses for which they would blush in a private capacity."
"The fabric of American empire ought to rest on the solid basis of The Consent of the People. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority,"
"State legislature,' who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent."
"Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government."
"It may safely be received as an axiom in our political system that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large, The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community, They can readily communicate with each other in the different states, and unite their common forces for the protection of their common liberty."
"If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify`"
The quotes I just read are illustrative of the insightful views possessed by Alexander Hamilton, The writings of John Jay and James Madison are equally valuable. In fact, there are literally hundreds of illuminating quotes in the Federalist. By emerging oneself into its rustic pages, the reader is gaining valuable insights into the basic foundation of our government that few people understand. I have found the Federalist to be one of the most enjoyable books I have ever read. I am sure you will too. Let me conclude by sharing with you one of my favorite passages from the Federalist. It was made by John Jay:
"Providence has in a particular manner blessed it (America) with a variety of soils and productions and watered it with innumerable streams for the delight and accommodations of its inhabitants. A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways from the easy communication of friendly aids and the mutual transportation and exchange of their various commodities,
"With equal pleasure I have often taken notice that Providence has been pleased to give this one connected country to one united people–a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts ? fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence.
"This country and this people seem to have been made for each other, and it appears as if it was the design of Providence that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous and alien sovereignties.