Mr. Bogan

South Hills High School

POLITICAL PHILOSOPHY

Thinking Hard About Government

Unit One

“To be ignorant of history is to remain always a child” – Cicero

“Those who expect to be both ignorant and free; expect that which never was,

and never will be” – Thomas Jefferson

“The good of man must be the end of the science of Politics.” – Aristotle

“Courage is the first of human qualities because it is the quality which guarantees the others.” – Aristotle

“Speak up for those who cannot speak for themselves, for the rights of all who

are destitute.” – Proverbs 31:8

“There are two parts of good government; one is the actual obedience of citizens to the laws,

the other part is the goodness of the laws they obey.” – Aristotle

“The real problem is in the hearts and minds of men. It is not a problem of physics but of ethics. It is easier to denature plutonium than to denature the evil from the spirit of man.” – Albert Einstein

“ The fundamental basis of this nation’s law was given to Moses on the Mount. The fundamental basis of our Bill of Rights comes from the teaching we get from Exodus and St. Matthew, from Isaiah and St. Paul. I don’t think we emphasize that enough these days.” – Pres. Harry S. Truman

“… government is best which governs least.” – Henry David Thoreau

Key quote from Founder James Wilson (Lectures on Law, 1790):

“Government, in my humble opinion, should be formed to secure and to enlarge the exercise of the natural rights of its members; and every government, which has not this in view, as its principal object, is not a government of the legitimate kind.”

President Harry S. Truman said, “If we don’t have the proper fundamental moral background, we will finally end up with a totalitarian government [a dictatorship] which does not believe in the right for anybody except the state.”  Most of us would say our country is a long way from being a totalitarian government, and it is. However, for four little girls (16^th Street Baptist Church) and pastor Fred Shuttlesworth, in Birmingham, Alabama, it made very little difference. The tyranny of the majority,mobocracy, they knew and experienced. In essence, majority rule (democracy) is not enough.

The bottom line is that freedom is not free. Many have given and paid in many ways to protect our lives and keep us free. We lost over 400,000 soldiers fighting in World War II, a war that virtually all historians view as necessary. At the end of the war we had almost 500 soldiers die each day in the Battle of the Bulge (19,000 from Dec. 16 to Jan. 25, 1945). We lost around 600,000 in the Civil War, and roughly 116,000 in World War I. If the Civil War were fought today that number would be around 6,000,000. It is more than accurate to say that many have given much so that we may live, and live free.

It is also accurate to say that even though our nation is free, that freedom hasn’t always been extended to all. As Federalist writer John Jay put it: ” That men should pray and fight for their own freedom and yet keep others in slavery is certainly acting a very inconsistent as well as unjust and perhaps impious part.” The reality is that the verdict on the United States is somewhat paradoxical. The United States is both great and at the same time it is not. Holding what appear to be opposites in tension is an accurate way to view the United States. Our country is one of the best. People go to great extremes to come here, yet almost every treaty made with the various Indian tribes was broken. Yet again, many early settlers lived decades side by side with Native Americans in complete peace. It is not an either/or situation, it is a both/and one. On the whole, when viewed against the histories of other nations, the United States can be proud that it has been the example, the provider, and the defender of liberty that most of the world looks and turns to when in trouble. Death and evil have resulted almost exclusively from the non-free nations of the world.

The following statistics are the work of political scientist Rudolph Rummel at the University of Hawaii. They reveal that the undemocratic, non free countries that have not only restricted freedom of the press and freedom of religion, but actually attacked those who sought genuine freedom, are responsible for the most death and destruction the world has known. What is often not noticed is that the worst offenders were officially atheistic nations. In particular, the Soviet Union (Communist Russia) and Communist China.

U.S.S.R. (Communist Russia)              61 million dead                1917 – 1987

China (Communist China)                   35.2 million dead             1949 – present

Mao’s army                                               3.4 million dead               1923 – 1949

Nazi Germany                                          20 million dead                1932 – 1945

Imperial Japan                                        5.9 million dead               1936 – 1945

Communist Poland                                 1.6 million dead               1945 – 1948

Communist Cambodia                            2 million dead                 1975 – 1979

Communist Vietnam                              1.6 million dead               1945 – 1975

Communist Yugoslavia                          1 million dead                 1944 – 1987

Turkey                                                       1.8 million dead               1900 – 1918

Pakistan                                                   1.5 million dead               1958 – 1987

If these numbers are off by even 25 to 30% it is staggering. The reason is these numbers do not include wars initiated by these  non-free nations, such as the 25 million soldiers killed in World War II. These statistics (Rummel’s) are of people who were lined up against brick walls and shot, or starved by having food supplies cut off to their communities.

President Kennedy may have said it best when he said, while speaking in Berlin in the early 1960s, that democracy has its problems, but “we have never had to build a wall to keep our people in.”  There is a long line of people waiting to get into the reasonably well-run free countries of the world, especially the United States, and a very short line of people wanting to get into countries like Iran, China, Russia, Cuba, and Venezuela. Fortunately there have been some improvements in Russia and China, but Iran and Venezuela are not improving much, if at all.

Keep in mind the United States is the longest living republic in the world. Therefore, it is worth knowing what made it so. This course will help explain how and why. We will begin the journey with our Declaration of Independence, then the Constitution and the ideas (political philosophy) used to form it.

The Declaration of Independence, our founding document, says that all people have Creator given rights that no person or government has the right to abrogate. The primary rights we are endowed with are life and liberty. These were commonly referred to as natural rights, or unalienable rights, and usually included the right to property (that was rightfully acquired). The protection of these rights was the main job of government. If a government didn’t, the people had the right to change the government so that it did. This natural rights perspective was used by people like James Madison to develop our Constitution.

Our Constitution establishes the form of government we have today. It was created in Philadelphia during the summer of 1787 by a group of 55 delegates from the new states that had recently gained their freedom from British rule. These men brought with them a considerable knowledge of government. They gained this knowledge by studying the writings of political philosophers and historians who had written about government over the past two thousand years. They also had experience with government themselves. They had, to a large extent, governed themselves even before the Revolution.  This knowledge and experience was used when they wrote the Constitution.

As noted above, to understand the Constitution one must understand the Declaration of Independence. James Madison called it the first document of our founding, upon which the Constitution was based. This is because the Constitution was intended to put into practice the beliefs contained in the Declaration. The Constitution, to be rightly understood, must be viewed through the eyes of the Natural Rights Philosophy contained in the Declaration of Independence. This unit is about this very thing, understanding the Natural Rights Philosophy, and its relationship to good government.

Throughout this course we will use the word Founders to refer to all of the men and women who lived in America throughout the colonial period who were influential in creating our government. We will use the Framers to refer to those delegates who actually met in Philadelphia to write our Constitution. For example John Adams, Thomas Paine, Patrick Henry, and Thomas Jefferson were Founders, but not Framers. This is because they did not attend the Philadelphia Convention where the Constitution was constructed (written).

However, before we go any further we are going to look at what an outside observer, from our former enemy, has observed concerning our founding. The person is a former Prime Minister of England, Margaret Thatcher. In a speech in 1991 she said the following:

Americans and Europeans alike sometimes forget

how unique the United States of America is.  No

other nation has been created so swiftly and

successfully. No other nation has been built

upon an idea – the idea of liberty.  No other

nation has so successfully combined people of

different races and nations within a single

culture.  Both the founding fathers of the United

States and successive waves of immigrants to

your country were determined to create a new

identity.  Whether in flight from persecution or

from poverty, the huddled masses have, with few

exceptions, welcomed American values, the

American way of life and American opportunities.

And America herself has bound them to her

with powerful bonds of patriotism and pride.

The European nations are not and can never

be like this.  They are the product of history and

not philosophy. You can construct a nation on

an idea; but you cannot reconstruct a nation on

the basis of one.

The Rt. Hon. Margaret Thatcher, 1991

(A New Dawn of Liberty,

Gregory Wolfe, intro., 1992)

So were are founded on an idea, the belief that we have a right to the life and liberty we are born with. This idea says we have a claim to these rights that others do not. It also says that we have a duty to respect these rights in others. This is where we begin, we these thoughts in mind.

TOPIC #1:  NATURAL  RIGHTS  &  THE STATE OF NATURE:   What would life be like in a  state of nature?

Purpose: when you complete this lesson you should have a clear understanding of the natural rights philosophy as articulated in the Declaration of Independence. You should also be able to discuss the ideas of John Locke and William Blackstone, and their influence on the thinking of our founding fathers. Lastly, you should be able to explain the problems associated with the state of nature.

As we continue an important concept needs to be understood. It is the concept known as a worldview.   Understanding the worldview of the Founders  is critical to understanding our government!

The term worldview comes from the German word weltanschauung.  Welt = world + anschauung = view: a comprehensive conception or apprehension of the world.  A person’s worldview is the frame of reference from which they make sense out of the world, and the great mystery we call life. It is how a person views life and the world around them. It is how they bring meaning to, or receive meaning concerning, life. It includes the things a person presupposes to be true (presuppositions). It is sort of the “philosophical glasses” a person sees the world and life through.

The Founders worldview had as its foundation the natural rights philosophy – a philosophy that believed all humans deserved to keep the life and liberty they are born with.  This is clear from both their personal and public writings. It is also clearly stated in the Declaration of Independence.    As you will see, this worldview was the dominant worldview of the time, and it was greatly influenced by British political philosophers such as John Locke and William Blackstone.

The religious roots of the Founders, from their Judeo-Christian heritage, formed the foundation of this worldview. That is to say, at the heart of the natural rights theory is the idea that there is a Creator who has endowed humans with, life and liberty. However, theft and murder are historical realities. This is the basic story of history, and it is not a nice story.

Let’s look at some recent statistics from the F.B.I.  You can visit their website at fbi.gov and view even more stats. Here are a couple of key ones:

* Murders in the U.S. in 2005: 16,692. That is 5.6 per 100,000. A 3.4% increase from 2004.

* Property crimes in 2005: 10.2 million (2/3 thefts). That is 3,430 per 100,000. A 1.5% decrease from 2004 and a 13.9% decrease from 1996.

* The F.B.I. estimates that the cost of property crimes is approximately $16.5 billion per year.

Human beings are the problem. If we were angels, as James Madison points out in Federalist #51, there wouldn’t be a need for government. But we’re not angels, we are people. And as people we are often a mess. That is the conclusion of history. Human nature, what people are like, is flawed. We murder, we steal, we are greedy, we cheat, and we lie. That is the reality. Us, we, me, and you; no one is innocent. As Mark Twain said, “a man is never more truthful than when he acknowledges himself a liar.”  In Judeo-Christian terminology, the word to describe our nature is sin. People have a sinful nature. This understanding was foundational to the thinking of our Founders. Understanding this truth will help you understand the need for good government. This influence is also supported by the fact that even more than Locke or Blackstone, the number one person the Founders read was Paul (formerly Saul), the author of most of the New Testament.

The Natural Rights Philosophy [This is the philosophical foundation of our government.]

“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.

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… Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; … But when a long train of abuses and usurpations … 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.”

(Declaration of Independence, 1776  –  1st  & 2nd paragraphs)

“…all men [people] are by nature equally free and independent.”

(Virginia Declaration of Rights)

“Natural liberty is a gift of the beneficent Creator to the whole human race.”

(Alexander Hamilton)

Key Points to remember:

1. The excerpt from the Declaration of Independence, and  the other quotes,  include some of the most important philosophical ideas underlying our form of government.

2.They are also ideas that had been accepted by almost everyone in the American colonies long before the Revolutionary War.

3. These basic ideas had been developed and refined by political philosophers such as Englishman John Locke (1632-1704), British judge Sir William Blackstone                                 (1723-1780), and by many others in Europe and in the colonies.

4. Of these philosophers, John Locke was the most important influence on the thinking of the Founders at the time of the Revolution.

5. The political philosophy Locke wrote about is often called the natural rights philosophy.

6. It is based on imagining what life would be like if there were no government.

7. Locke and others called this situation a state of nature.

Important Questions to Think About. To think rightly about government, in general, and to gain a solid understanding of our government, the following questions should be wrestled with. In other words, give serious thought to them. Answer them in your mind, and see if you’re on the same page as our Founders.

1. What is human nature, that is, what traits of personality and character, if any, do all people  have   in common?  For example, are all people basically selfish or do they care for the welfare of others?

Or is it both? And if both, which part (good or bad) should concern us the most?

2. What should be the purpose of government [what should it do]?

3. How do the people running a government get the right to govern?

4. How should a government be organized?

5. What kinds of governments should be respected and supported?

6. What kinds of governments should be resisted and fought?

In short, and in general, the Founders would answer as follows.

To question one [1]: people are both good and bad, but it is the bad side that government must focus on.

To question two [2]: government’s main job is to protect people’s natural rights, their life, liberty and property (that they have rightfully acquired).

To  question three [3]:   those who govern get the right to govern from the people they govern,  consent is vital.

To question four [4]: government’s powers should be limited, and separated.

To question five [5]: only governments that do a good job of protecting the people should be respected and supported.

To question six [6]: governments that fail to protect the people’s natural rights should be resisted,  and changed if possible. Founders called this the right to revolution.

Island Analogy Analogies are very helpful tools in learning.  The following analogy helps you understand what life would be like without any government, and why good government is important.  That is, it will help you understand what is commonly called the state of nature – life without government, and its dangers.

Imagine that all of the students in the school were transported to a place where there was enough natural resources to live on, but where no one had lived before (possibly a deserted island). When you arrived, you had no means of communicating with people in other parts of the world. On the basis of this situation answer, in your mind, the following questions.

1. Would there be any government or laws to control how you lived, what rights or freedoms you exercised, or what property you had?

2. Would anyone have the right to govern you?  Would you have the right to govern anyone  else? Why?

3. Would you have any rights? What would they be? Would it make any difference if you were a  man or a woman?

4. What might people who were stronger than others try to do? Why?

5. What might the weaker people try to do? Why?

6. What might life be like for everyone?

Compare your answers with John Locke’s

John Locke’s answers, to these questions, were widely shared by Americans living during the 1700s and played a very important role in the development of our government.

[#1] It is clear that Locke believed that there were laws (natural or divine law) in a state of nature, but no government. John Locke said:

“The state of nature has a law of nature to govern it which obliges every one… no one  ought to harm another in his life, health, liberty, or possessions….the law of nature stands  as an external rule to all men, legislators as well as others.  The rules that they make for  other men’s actions must, as well as their own …, be conformable to the law of nature —          i.e., to the will of God, of which that is a declaration, and the fundamental law of nature,                             being the preservation of mankind, no human sanction can be good or valid against it.”

These laws were the Laws of ” Nature and of Nature’s God” as Thomas Jefferson called them in the Declaration of Independence. Locke would also say that:

A. There wouldn’t be any government because a government can’t exist until it has been created.

B. A legitimate or just government cannot exist until the people have given their consent  to be ruled by it. So dictatorships are, by Locke’s definition, illegitimate.

[#2] No one would have the right to govern you, nor would you have the right to govern anyone else.  If people haven’t consented to the creation of a government, there is no government. At least not a legitimate, or just,  government.

[#3] You would have, according to Locke, the right to life, liberty, and property you rightfully acquired. These were Locke’s, three natural rights. Because you have aclaim to these rights, you would have the right to defend these rights if other people threatened to take them away. You would also have a duty to respect these rights as they applied to others.  These were called natural rights. We now often call them fundamental, basic, or human rights.

[#4] Locke believed that people are basically reasonable and sociable, but that they are also self-interested. In a sense, people are both good and bad.  Martin Luther, the great reformer, often said that people are both sinners (bad) and saints (good) at the same time.  Because of the negative part of human nature there would always be some people who would try to violate your rights. Since the only security people would have for the protection of their natural rights would be their own strength or cunning, people who were stronger or more able would often try to take away the life, liberty, or property of the weak.  As Locke stated, people form or submit to government “for the mutual preservation of their lives, liberties, and estates (property).”

The Founders had similar views concerning human nature, as stated below:

A. “If men were angels, governments would not be necessary.”

James Madison, The Federalist (1751-1836).

B. “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint.”                                            Alexander Hamilton, The Federalist [1787 -1788].

[#5] Weaker people might try to protect themselves by joining against the strong. This is the beginning of what is often called a social contract or compact.  See your text book (or next lesson) for a discussion of social contract theory.

[#6] Since there would  be  no  governmental or man-made laws  that  everybody,  or at least a majority,  agreed  upon.  And since there would not be a  government  to  enforce  them, everybody’s rights would be very insecure. If you have read Lord of the Flies, you have a pretty good understanding of the situation in a state of nature.

Who was John Locke? [The greatest influence on the Founders at the time of the Revolution.]

Seventeenth century England produced quite an excellent group of political thinkers. John Locke (1632-1704) looms above all the others in his influence on Americans of the Founding era.  His Second  Treatise  on  Civil  Government may well have been the most influential book on political theory ever written.  It was probably the most lucid work explaining natural law ever written, and it came at a time when the attachment to and application of natural law was moving toward a peak.  He wroteTwo Treatises on Civil Government, of which the  Second is by far the most important. It was published in the wake of the Glorious Revolution and is generally accepted as the philosophical justification of that event.  His work was especially important to Americans because he justified revolution and Jefferson even used some of his phraseology in the Declaration of Independence.

John Locke was born in Somersetshire, England, grew up in a mild Puritan family, and was educated at Oxford when Puritans were coming to power in England. He retained his connections at Oxford afterward and made a living of sorts from his efforts as a tutor.  He might have become a minister (pastor) had there been more toleration in his day, and he dabbled in medicine for a while, but his enduring reputation rests on his writings in political thought and philosophy. Locke is known to philosophy mainly for his Essay  Concerning  Human  Understanding,  a speculative work on the psychology of the working of the human mind. His political works are prized primarily for their support of representative (popular) government, natural rights, and individual liberty.  Both  the language and ideas of the Declaration of Independence were tremendously influenced by John Locke.

Who was Sir William Blackstone? [The greatest influence on our early judges.]

William Blackstone was another British writer and thinker who had a tremendous impact on our government — especially our understanding of natural law and Common Law (the British legal system). Blackstone (1723-1780) was born in England, the son of a London merchant who died before William was born.  He received the best of education, going from school to Oxford and eventually to the study of law.  The practice of law did not satisfy him, and he returned to lecture at Oxford, where he did his best known writing and acquired his reputation. He was eventually elected to Parliament, and then spent the last ten years as a judge.

His greatness was found in his Commentaries on the Laws of England,  first published in 1765.  They were published in Philadelphia in 1771, and made a huge impact at just the right time.  The material that went into the  Commentaries had first been delivered as lectures at Oxford from 1753 onward, and their fame preceded their publication in book form. Blackstone’s lectures gained a great reputation for being well organized and clear. As one historian put it:  “Blackstone’s place in history was virtually assured by their publication. Nothing like them had ever appeared in English before, and little since.”

The impact  of his work was great in England and other English-speaking lands, but it was especially great in the United States.  Of his influence on the United States,  historian Russell Kirk wrote, “Although Blackstone was not quite the Solon of America, probably no other new state has been so much governed by a single legal authority from abroad.”  Most of our early judges, including John Marshall who served as chief justice from 1801 to 1835  (participating in over 1000 decisions),  used Blackstone’sCommentaries as their chief source of legal knowledge.

Two things Americans learned from Blackstone, the great importance of natural law and a devotion to the English Common Law, as he, Blackstone, had expounded it. In his writing he tended to get right to the essence of things. His definition  of natural law is clear and goes right to the heart of natural law.

This law of nature,… dictated by God himself, is of course superior

in  obligation to any other. It is binding over all the globe, and 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,… from this original.

Blackstone also stressed that all man-made laws, sometimes called positive laws, must reflect natural law and be in agreement with it to be valid and have the force of law.  Laws must reflect the nature of things. It is from the nature of things that we know their intended purpose.  Otherwise, the law would be an attempt to change the very nature of things — or  to deny that man or things have a nature.

Blackstone was also a vigorous advocate of the natural rights of man. He liked to use the term absolute rights to emphasize the unchanging aspect of natural rights. He put it this way:

For the principal aim of society is to protect individuals in the

enjoyment of those absolute rights which were vested in them

by the immutable laws of nature;  but which could not be preserved

in peace without that mutual assistance and intercourse which is

gained by the institution … of communities.  Hence it follows that

the first and primary end of human laws is to maintain … those

absolute rights of individuals…

The absolute rights of man … are usually summed up in one

general appellation,  and denominated the natural liberty of mankind.

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 endued him with the faculty

of freewill….

(Basic American Government, Carson, p. 154-155, 1993)

According to Locke, Blackstone, our Founders, and others: the Great Problem was to find a way to protect our natural rights so that we can live in peace with one another. That was the great  issue of the day in the 18^th century (1700s).  Today we tend to talk about technology, back in the day we are looking at people talked about political theory.  One of the questions they asked, was can people successfully govern themselves? John Locke and our Founders said yes!  But is wasn’t a simple yes.  The next topic will be begin to answer what they meant when they said yes.

TEXT BOOK READING: pages 1 – 11, 38, and 40 – 43 (All text book readings are required).

Topic #2:  Locke’s Solution: A Social Contract

‘Tis not without reason that [man] seeks out and is willing to join

in Society with others who are already united or have a mind to

unite for the mutual preservation of their Lives, Liberties and

Estates, which I call by the general name, Property.

The great and chief end, therefore, of men’s uniting into

Commonwealths, and putting themselves under Government, is

the Preservation of their Property.

John Locke (1603-1704) Two Treatises of Government,

p. 123 – 124, 1690.

The insecurity of life in a state of nature

In the first lesson (topic #1) the insecurity of life in a state of nature was discussed. We noted that the Founders were firm believers in the natural rights philosophy. We also discussed the problem of human nature (“if men were angels governments wouldn’t be necessary”). Having a government is the only way to avoid the problems associated with a  state of nature.

Along these lines we included a discussion of natural law — moral principles that are both right for everybody and knowable to everybody by the ordinary exercise of human reason:  do not murder,  do not steal, etc..

Purpose: when you are done with this lesson you should have a clear understanding of: [1] the primary purpose of government and, [2] what John Locke meant by asocial contract.

John Locke’s solution to the great problem — the “social contract”

Locke said that the best way to solve the problem of the state of nature is for people to give up some of the natural freedom they have in order to gain more protection of their rights. To gain this protection, he believed people should agree with others to create and live under a government and give it the power to make laws and to enforce them. This kind of an agreement is called the social contract. Sometimes it is called the social compact as in the “Mayflower Compact.”  Others have called it a  social covenant.

As in all contracts, in order to get something, you must give something in return. In the social contract everyone promises to give up the absolute right to do anything he or she has the right to do in a state of nature. In return, everyone receives the security that can be provided by a government. Each person also consents to obey the limits placed upon him or her by the laws created by the government. The result is everyone gains the peace of knowing that his or her rights to life, liberty, and property are protected; at least more so than in a state of nature.

Why do we do this? Locke would say to avoid tyranny.  As he said in his Second Treatise on Government, published in 1690:

“Tyranny is the exercise of Power beyond Right.”

“Wherever Law ends Tyranny begins.”

A more complete and detailed explanation from a modern author and professor

Professor J. Budziszewski of the University of Texas summarizes Locke’s theory this way:

(Written On The Heart: The Case For Natural Law InterVarsity Press, 1997.)

*           To have a government is to have known, authorized, impartial judges over all, whose judgments can be enforced (executed).

*           In the beginning, however, there is no government. This is not our original condition but our natural condition — our state of nature.

*           There is a law of nature (natural law/God’s law) that governs the state of nature and obliges everyone …”no one ought to harm another in his (or her) life, health, liberty or possessions…” It is simple but true (absolute).

*           All people, therefore, have natural rights: life, liberty, and property (which has been rightfully acquired).

*           The fact that people recognize the law of nature does not mean they always obey it, so it must be enforced.

*           Enforcement of the natural law means enforcement — that is,  protection of natural rights.

*           Enforcement also entails imposing punishments, provided they do not exceed the natural law limits of reparation and restraint — that is, provided they do not go beyond what is necessary for compensation of damages and prevention of further wrongdoing.

*           However, because there is no government, each person is himself an “executioner” or enforcer of the law of nature.

*           Furthermore, even when a person knows the principles that ought to be enforced, he finds it difficult to apply them with coolness and impartiality when his or her own interests are concerned.

*           For this reason, self-enforcement does not work very well: natural rights are persistently violated, and in punishments the limits of reparation and restraint are persistently transgressed.

*           The remedy for this inconvenience is for all the people in a particular area to appoint certain persons to serve as impartial judges — to be a government.

*           However, this does not work unless the judges can enforce their judgments, and they cannot enforce their judgments unless people first agree to transfer their “executive,” or enforcement, power to the community as a whole.

*           The mutual promise or agreement that transfers the enforcement power to the community as a whole is called the social contract, or social covenant. Once this agreement is made, people are said to have left the state of nature and entered the state of civil society.

*           Entering civil society is not the same thing as setting up a government.  There is no going back on the agreement to enter civil society; however, the people can change their minds about the proper form of government.

How is the form of government to be decided?  By the vote of the majority.  Why?  Because by agreeing explicitly to enter civil society,  the people agreed implicitly to whatever was necessary to make it a going concern.  Majority rule is one of the necessary things,  for if unanimity were required, no decision could be reached at all.  Someone will always disagree.

If the form of government is chosen by the majority, does that mean all of the government’s officers must also be chosen by the majority?  No.  However, the people cannot consent to allowing the government to violate their natural rights. Therefore, no matter what form of government, it cannot be given arbitrary power over the lives and fortunes of the people.

Once the form of government is chosen, does the role of the people end?  No.  The prohibition on the arbitrary exercise of power entails that every act of legislation require the fresh consent of the majority of the people.  Consider for instance the decision to levy a tax.  People have a natural right to dispose of their property as they see fit; but taxes take their property away.  Therefore, the government may not tax them without their fresh consent, expressed either directly or through those whom they agree to regard as their representatives.  No taxation without representation!  Does that sound familiar?

Could the majority make a law which violates the law of nature?  No.  For instance, a poor majority could not simply seize the property of a rich minority.  Because there is a natural right to keep property that has been justly acquired, redistributive taxation is not an act of compassion but an act of simple theft.

How might the majority be prevented from tyrannizing the minority?  Although Locke does not specifically discuss this problem in his writings he does indicate his preferred solution by the privileged place he gives a particular form of government, the British system that emerged after the Glorious Revolution, when he resorts to examples. Basically, it is a system where power is shared by different parts of the government representing different parts of the civil society.  Our system of checks and balances is an example.  It is through writers  such as Locke that we get our system.

A little review: Locke, the Founders, and other Natural Rights Philosophers said …

• The first and primary purpose of government is to protect your natural rights.
• Governments get the right to govern from the governed.
• If a government fails to protect the natural rights of the people, the people have a right to revolution: that is, set up or create a new government.
• Who is to judge if the government has the failed? Locke and the Founders said that the people are to make that decision. Ultimate political authority rests with the people  (the governed).

• The Declaration of Independence argued this, and so did the Framers in the Preamble To The Constitution.

“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.”     (Preamble to the Constitution)

What kind of government is most likely to protect the basic rights of the people?

Throughout history governments have deprived people of their rights more often than they have protected them. Governing rightly, or justly,  is NOT AN EASY TASK — very important to keep in mind. Protecting everybody is not easy. (Searching homes can be seen as an infringement on a person’s liberty. It can also be seen as a way of preventing a murderous act by gathering evidence of the planned attack — giving grounds for an arrest before someone is killed.)

Republican government based upon the natural rights philosophy, and limited by a constitution was their answer.  A  republic, republican government, or representative democracy all refer to the same type of government. Thus these three terms are all interchangeable.

This brings us to our third topic. Defining what a republican government is.

Topic #3: What is republican government? In short, it is a representative democracy, not a pure or direct democracy.

Keep in mind that when you hear the term democracy, what is often meant is a representative democracy. And a representative democracy use to be commonly called a republic. The following quotes will show you that understanding what is meant is not always easy, but it is very important.

Also, without a firm commitment to natural rights, a democracy or republic can easily turn into a tyranny of the majority. Sometimes loosely called a mobocracy.  James Madison warned about this in Federalist #10.

Complaints are everywhere heard … that our

governments are too unstable, that the public good

is disregarded …, 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.

… 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.

James Madison (1751 – 1836)

Federalist #10, Nov. 23, 1787.

No one pretends that democracy is perfect or all-wise.

Indeed, it has been said that democracy is the worst

form of government except (for) all those other forms that

have been tried from time to time.

Winston Churchill (1874 – 1965).

House of Commons speech, Nov. 11, 1947.

In a democracy, the majority of the citizens is capable

of exercising the most cruel oppressions upon the

minority.

Edmund Burke  (1729 – 1797).

Reflections on the Revolution in France,

p. 229, 1790, Pelican Books Edition, 1968

Remember, democracy never lasts long.  It soon wastes,

exhausts, and murders itself. There never was a democracy

yet that did not commit suicide.

John Adams (1735 – 1826).

Letter to John Taylor,  April, 15, 1814.

A pure democracy [refers to] … a society consisting of a

small number of citizens, who assemble and administer

the government in person….

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.

James Madison (1751 – 1836).

Federalist #10, Nov. 23, 1787.

Purpose -  When you are done with this lesson you should have a good understanding of [1] Classical Republicanism in the Roman Republic, [2] Cicero, [3] Montesquieu, [4] Judeo-Christian heritage, and [5] be able to explain Madison’s understanding of republican government. That is, you should be able to distinguish between ademocracy (pure democracy) and a republic (republican government). You should also be able to give an argument as to why Civic Virtue is important in a free society.

The Roman Republic  [Classical Republicanism]

As you have learned, the Founders had read the writings of the natural rights philosophers, especially John Locke, and had adopted many of their ideas about government. They had also studied and been influenced by historians who had written about ancient government. They were particularly interested in what they had read about the ancient Roman Republic which had lasted for nearly 500 years between 509 B.C. and 27 B.C.

Not only had many of the Founders cut their intellectual teeth on the heroes and villains of ancient Rome, but they had lately been mightily reminded of the glory and decline of Rome. The first volume of Edward Gibbon’s Decline and Fall of the Roman Empire was published in 1776, the same year as our Declaration Of Independence.

Whatever the influence of Gibbon’s history, the Roman influence on the Constitution and our government was great.  Rome had a constitution going back to the TWELVE TABLETS  in 450 B.C., and forward  through many changes in arrangement until the very end of the Republic.  Rome was the prime example from the ancient world of a country having representative government and not a monarch. The territorial holdings of Rome had early become too extensive for a direct democracy, such as Athens had. Rome had begun as a city-state, but before long it had conquered the surrounding city-states and was expanding around the Mediterranean. Thus, it had to develop a more practical way to govern. The result was a two-house legislature, a Senate and an assembly of Tribunes. The assembly of Tribunes is commonly referred to as the Roman Assembly.  Many believe that the Roman Republic was able to provide a government that focused on working for the common good (common welfare).

During its glory years the people of the Roman Republic gained a reputation for hard work, and putting the common good first. This is known as civic virtue.

The United States’ Senate was certainly named after that of Rome, even though the Roman Senate had both more extensive and exclusive powers  than does the U.S. Senate. It was, in many ways, a legislature, executive and judiciary all in one.

As earlier noted, the Roman Republic had a Senate and an Assembly. Much of the executive power was vested in its chief magistrates, two consuls.  In essence, Rome had a mixed government: it had the relics of monarchy in the consuls; the Senate was aristocratic (appointments were for life and powers great), and the plebeian (common people) Roman Assembly was democratic. The term classical republicanism is commonly used to describe the Roman Republic.

The United States is more monarchical, with its powerful single executive, but its Senate is less aristocratic. In any case the similarities stand out, and the influence obvious.

The Greek world also provided the Founders with examples of governments that were in many ways democratic. However, the Greek examples began idealistically and degenerated into violence and anarchy. Even though they had moments of great achievement, the ancient city-states of Athens and Sparta were unstable. They became divided. One group or class continually fought another. The result was our Founders were not impressed. They, especially Madison, did not consider Greece as a good model to study and follow. As a result of the way Greece went our Founders tended to view the word democracy as a fancy way of saying mob rule – hence the termmobocracy.

Thus,  our Founders were drawn more to the experience of the Roman Republic. That is, before the republic lost its freedoms and became the Roman Empire. They prized above all the Roman emphasis on political virtue, the willingness to serve the public selflessly and courageously. George Washington was an example of this political, or civic, virtue. He followed the example of the Roman general Cincinnatus.

When Rome was in crisis, it called upon Cincinnatus to leave his farm and take up the reins of power. He did, and when the crisis was over he gave up his enormous powers and returned to civilian life. As a result of Washington not seeking a third term as president, he was often referred to as the American Cincinnatus.

Cicero’s Influence on Rome’s Classical Republicanism

Marcus Tullius Cicero (106 – 43 B.C.) was one of the most impressive men of the age of Rome when it hung between being a republic and an empire (essentially a dictatorship).  Cicero was a great champion of republican government, constitutional (limited) government, and of natural law. As a result he influenced the thinking of many of our Founders.

A hint of his influence on America is contained in John Adam’s tribute to him, “… all the ages of the world have not produced a greater statesman and philosopher … than Cicero.”

Cicero was a contemporary of Julius Caesar, whom he greatly liked personally, but he loved the Republic and its constitution too much to support him (Caesar), or Pompey.  Marc Antony was  a contemporary as well.

*     Cicero supported his belief in universal natural law with a belief in God.

*     Cicero believed in a government of laws, not of men. He believed that the highest law was        God’s law, and identified it with natural law. All of man’s law must align with and not      contradict natural law.

The question some ask is how does one know what  natural law is or says?   The Declaration of Independence gives the view the Founders had.  That view was centered in what the Declaration calls “self-evident truths.”  The result of their thought process was the contention that all humans had a claim (a natural right) to the life and liberty they were born with. Government’s job was to protect their lives, liberty, and the property they rightfully acquired. These beliefs fit perfectly with both reason and what their Judeo-Christian worldview taught them.    Examples of this would be both “Thou shall not murder” and “Thou shall not steal.”  Both of these commandments fit into the category of religion and, at the same time, the category of politics. In some areas the two overlap and cannot be completely separated. A simple reading of the Declaration  confirms this.

Concerning God’s Law, Cicero wrote:

Power and law are not synonymous. In truth they are frequently in opposition and irreconcilable.  There is God’s Law from which all equitable                                                       laws of man emerge and by  which men must live if they are not to die in oppression, chaos and despair. Divorced from  God’s eternal and                                                                 immutable Law, established before the founding of the suns, man’s power is evil no matter the noble words with which it is employed or the                                                             motives urged  when enforcing it. ….   True law is right reason conformable to nature, universal,  unchangeable, eternal, whose commands urge                                                    us to duty, and whose prohibitions restrain us from evil….Neither the senate nor the people can give us any dispensation for not                                                                                    obeying this universal law of justice…. It is not one thing at Rome, and another at Athens;  one thing today, and another                                                                                                tomorrow; but in all times and nations this universal law must  forever reign, eternal and imperishable….God himself is its author,…

(Basic American Government, Carson, p. 84-85, 1993)

From Cicero our Founders found support for their belief in natural rights dating back to the political world of Rome. In other areas it went further back.

Judeo-Christian Heritage

The Founders were also influenced tremendously by their religious roots. As stated before, the number one author read by the Founders was Paul, author of most of the New Testament. His ideas influenced both John Locke and the majority of the American colonists.

More specifically the Founding Fathers were  influenced by Protestant Christianity. And though the Puritan version was in decline, the influence of religion was not. It was during the 18^th century, around 1720, that the Great Awakening began.

Historian Paul Johnson, in his A History of the American People (p.109) put it this way:

…though Puritanism was in decline in 18^th-century America, …

religion as a whole was not  …Quite the contrary. In fact

American religious characteristics were just beginning to mature

and define themselves. It could be argued that it was in the 18th

century that the specifically American form of Christianity –

undogmatic, moralistic rather than creedal, tolerant but strong,

and all-pervasive of society – was born, and that the Great

Awakening was its midwife.

The key people in the Great Awakening were George Whitefield (1714 – 1770), the Grand Itinerant, who caused the Great Awakening to take off, and Jonathon Edwards (1703 – 1758) who became the first major thinker in American history.

The Great Awakening was, according to Johnson “the proto-revolutionary event, … preceding the political drive for independence and making it possible.” It began the process which created an ecumenical and American type of religious devotion which affected all groups, and gave a distinctive American flavor to a wide range of denominations. Above all it stressed individual experience. Its key text was Revelation 21:5: ‘Behold, I make all things new’ – which was symbolically the text for the American experience as a whole.

Johnson summarizes the overall influence this way:

It was the marriage between the rationalism of the American elites

touched by the Enlightenment with the spirit of the Great Awakening

among the masses which enabled the popular enthusiasm thus

aroused to be channeled into the political aims of the Revolution….

The Revolution could not have taken place without this religious

background. The essential difference between the American Revolution

and the French Revolution is that the American Revolution, in its

origins, was a religious event, whereas the French Revolution was

an anti-religious event.

(History of the American People, Johnson, p. 116,  1997)

Unless one studies these revolutions, American and French, with some detail they miss this point. The American Revolution was, in many ways, a religious event. The French Revolution was anti-religious.

To return to the general influence of Protestant Christianity it is important to note that originally the goals of most colonists included a desire to spread Christianity, to make money, and to expand England. In Massachusetts, they also dreamed of setting up a Kingdom of God on earth. As a variety of other immigrants came to the middle colonies religious tolerance began to become normal.

Then the Great Awakening kicked in and touched the lives, according to historian Paul Johnson, “perhaps three out of four of the colonists.” It helped shape the culture of America and developed thought patterns that led to the Revolutionary War.

The religion of the Founding Fathers, Washington, Franklin, Adams, Jefferson, Madison – still today remains an issue. Multiple biographies about them have portrayed their religious outlooks. A few things can clearly be said about them, and the colonists in general, on how Protestantism affected them and the government they put together. Protestant ideas and practices that affected them, included …

• The notion of local self-government with a republican idea of checks and balances in the practice of power.
• The dream of establishing an ideal community – looking ahead and trying to make the world a better place.
• A readiness to change, adapting and flexing principles to fit new situations, and listening to one’s opponents to find a common ground.
• A willingness to break with the structure that had guided them since childhood.

The need for civic (public) virtue. 

“If Virtue & Knowledge are diffused among the People, they will never be enslaved.

This will be their great Security.”

Samuel Adams to James Warren, February 12, 1779

“No longer virtuous no longer free, is a Maxim as true with regard to a

private person as a Commonwealth.”

Benjamin Franklin, Poor Richard’s Almanack, Sept. 1739

The Founders also believed that in order  to have a government that protected their rights and promoted the common welfare, the citizens must possess civic virtue. This meant that the citizens must love their country, be honest, be hard working, and live a modest way of life.  They should also prefer the common welfare to their own private interests.

It was their belief that these qualities needed to be encouraged and developed by the family, church, education, and finally, by the performance of the duties of citizenship. People who believed in classical republicanism were convinced that civic virtue is not something that comes automatically to people.  Citizens must be reared and taught to be  virtuous by moral education.

Along these lines they believed that most, not all, Americans had the civic virtue necessary to make republican government work. This does not mean that they believed humans were by nature good, kind, and always willing to do the right thing. They simply believed that most Americans were receiving the necessary moral education. A slave would obviously, and rightly, contest this point.

Furthermore, the Founders believed this virtue came from the Americans’ Judeo-Christian heritage, which we already discussed in the previous section. Although some of the Founders were Deists, they were virtually unanimous in their belief in a Creator, and the ethics espoused by the Jewish and Christian faiths – hence the term Judeo-Christian heritage.  The Declaration of Independence clearly expresses these concepts — concepts that both deists and theists would agree with.

How should a government be organized so it will promote the common welfare?

Concerning organization the Founders also learned about republican government from writers of their own time.  One of the most important was a French writer named Montesquieu (1689 – 1755) – “the celebrated Montesquieu”…. Baron de Montesquieu.

Montesquieu believed that the English system of government was the best example of how a republican government should be organized. He argued that in the English system, the powers of government were divided and balanced among the King and two houses of Parliament. The King represented the interests of royalty. TheHouse of Lords represented the interests of the nobility, and the House of Commons represented the interests of the common people.

Like the ancient philosophers Aristotle, and  Cicero, Montesquieu believed that a system which divided and balanced the power of government among different classes of society, as was done in Great Britain, was the best way  to be sure that the government  would not be dominated by a single social class. Cicero also spoke to the issue of the common welfare.  He said, “Those who design to be partakers in the government should be sure to remember those two precepts of Plato; first, to make safety and interest of  their citizens the great aim and design of all their thoughts and endeavors, without ever considering their own personal advantage; and secondly, so to take care of the whole collective body of the republic as not to serve the interest of any one party, to the prejudice or neglect of all the rest. For the government of a state is much like the office of a guardian or trustee….”)

Montesquieu called this type of system of government a mixed constitution because it combined the basic types of government. [A mix of monarchy, aristocracy, and  democracy.]

A. Monarchy: rule by one

B. Aristocracy: rule by a few

C. Democracy: rule by many

Since all classes shared power, this kind of government was the best for serving the common welfare.

Montesquieu also believed and stressed that the three basic functions of government – the   legislative,  executive,  and  judicial  should be separated and independent of one another. He was favorably disposed to representative government for the legislative branch, and in that regard said that the “members…of the legislature should not be chosen from the general body of the nation; but it is proper, that, in every considerable place, a representative should be elected by the inhabitants.” Montesquieu also believed that  civic virtue  was necessary for such governments to succeed.

What kind of society is necessary for a republican government?

Montesquieu had written, and many Founders agreed, that people would only be willing to promote the common welfare instead of their own interests if none, or at least only a very few, of them were too rich or too poor. He and the majority of the Founders believed that the middle class was the most likely to possess civic virtue.  People who were very wealthy or very poor would be more likely to promote their own interests at the expense of the common welfare.

When a government serves such special interests at the expense of the common welfare, it is said to be corrupt. [Note: to these men corruption was more than just financial fraud or criminal activity by political leaders. It also included favoring special interest groups they called factions.]

Montesquieu, and our Founders, believed that republican government was only possible in small nations (or communities). A small community is necessary if people are to know and care for each other and their common welfare. The classical republicans believed that people must be very much alike and that a great degree of diversity was not a good  thing. If you tried to have a republican government in a large and diverse nation, it would be very difficult for the people  to agree about what was best for their common welfare.

Madison will later change and argue that  more diversity is better. It prevents any one group from dominating a society.

• KEY POINT: GREAT WEALTH OR POVERTY WERE THE MOST LIKELY SOURCES OF CORRUPTION.

What is the common welfare? [The common good]

Different people have had and will continue to have very different ideas about what the common welfare is? This is why some form of democracy is important. It is also why compromise is important, and why democracy by itself is only part of the answer.

The Founders believed that a government which promotes the common welfare is one that starts with protecting natural  rights. These were things that were not up for a vote. A person’s right to live was not something that the society should be able to vote on.  It was a Creator endowed, meaning God given, unalienable right.  In the minds of the Founders, if a person’s right to life is not protected, it doesn’t matter what the majority votes for, the common welfare is not being promoted. The common welfare begins  with protecting everyone’s natural  rights. It begins there and moves on to other areas that concern the community, or society, as a whole.  If a nation does not protect the life, liberty and property of one group, it becomes easier and easier to deny those protections to other groups. Nazi Germany and the former Soviet Union are excellent examples of this.

John Locke identified three natural rights: life, liberty, and property.  To some people property such as real estate was not a  natural right. It was with our natural rights to life and liberty that we would be able to acquire property and pursue happiness.  However, to most property that was legitimately acquired was a natural right. Locke never argued that people had a right to stolen property.

These rights flowed from one to another. Backwards they go like this. Our right to property flows from our right to liberty, which flows from our right to life. From another view, we  can not be free  if we are not alive first. And we can’t acquire property if we are not free to do so. That is why a slave owner’s property right was not on the same level as a slave’s right to liberty.  Coming back to the common welfare,   protecting these rights was the starting point for promoting the common welfare.

The Founders also believed that a republican form of government was the only kind that they should have. It offered the best hope for protecting our rights.  Furthermore, they believed that Americans had the civic virtue necessary to make a republic,  or republican government, work.

Keep in mind that republican government is not connected to any particular political party.

The Founders were very distrustful of political parties. Washington often warned of their dangers. But the reality is that they are inevitable.

James Madison refines the idea of republicanism

Madison said that there was an important difference between a republic and a democracy. He defined a democracy as a small community or nation with a small number of citizens who meet from time to time to do the tasks of government themselves. Examples were: Greek city-states and  New England towns.

Madison defined a republic as a country in which laws are made and administered by representatives elected by the people. They have their jobs for a limited amount of time, or as long as they behave properly. They must be elected by a broad base (large number) of people, and not by a small number or a specially favored group.  If that happened, the government would  only serve the interests of a small group instead of the common welfare.

According to Madison, then, a republican government (Republic) is a representative democracy.

• KEY POINT - THE CITIZENS MUST POSSESS THE CIVIC VIRTUE NECESSARY TO ELECT PEOPLE OF WISDOM AND CHARACTER TO REPRESENT THEM IN THE GOVERNMENT.

Modern Examples of “virtue” in a society. (Source: Pulse, Feb. 19, 1999)

Economic corruption — bribes, extortion, and the like — exact a heavy price on the people of a nation, especially the poor.  In Albania,  businesses pay about a third of their potential profits in bribes.  African leaders, meanwhile, recently held an estimated $20 billion in Swiss bank accounts.  Last year (1998) Nigeria, the world’s eleventh largest oil exporter, had to import fuel. Western companies are increasingly being told by their governments to limit bribery in their international dealings.  Also, international lenders are increasingly linking aid to what is euphemistically called “good governance.”

The five LEAST corrupt countries: all of which have high standards of living:

Denmark    Sweden   Singapore    Finland    Canada

The five rated MOST corrupt: Cameroon    Indonesia    India    Nigeria    Russia

The need for a written constitution [Get it in writing.]

There was one additional part of a republican government that the Founders thought was necessary, a written constitution. Although a constitutional government does not require a written constitution to be constitutional, it is extremely helpful. The next lesson will make that clear.

They had a firm belief in the superiority of constitutional government, or constitutionalism (limited government).  A good constitution was one the best way to protect a republican government, which in turn was the best way to protect their natural rights.

In short, a good constitution resulted in a government with limited power. In academic circles this is called a constitutional government, or a government based on constitutionalism – which is the topic of the next lesson.

Key points to remember:

1. The historical accounts of ancient Rome during the greatest days of the Roman Republic described the Roman people as having civic virtue.

2. By this (civic virtue) the historians meant that the Roman people were hard-working, simple in their ways of life, honest and patriotic… they loved justice and liberty.

3. Loving their country more than themselves, the common people and the aristocracy shared political powers.

4. As a result, they [the Roman Republic] had a government that promoted the common good or the common welfare.

5. This kind of government was called republican government. [A government in which elected representatives do the majority of the governing.]

6. The main purpose of republican government was to promote the common welfare — what was best for the entire society.

7.   The Romans,  not the least of whom was Cicero,  gave an impetus to the concept of   natural law which it had not had before in political thought.

8. Whether or not the people and government of the Roman Republic were as admirable as they were described by some historians, the accounts of their virtue greatly influenced the Founders.

9. The Judeo-Christian heritage was the moral foundation of most of the colonists.

10. Protestant Christianity and the Great Awakening helped create the mindset that would enable the American Revolution to take place. They also helped keep the revolution from getting out of control in the way the French Revolution did, with its Reign of Terror.

Topic #4:  What is constitutional government?

Purpose: This lesson introduces two main ideas. They are the ideas of a constitution, and (b) constitutional government. When you finish the lesson, you should be able to explain what a constitution is, what a constitutional government is, and some essential differences between constitutional governments and autocratic or dictatorial governments. 

Defining “Constitution”

• A constitution is a set of fundamental customs, traditions, rules, and laws that sets forth the basic way a government is organized and operated.
• Most constitutions are in writing (like the U.S. Constitution), some are partly written and partly unwritten (such as Great Britain’s), and some are not written at all (usually in tribal communities).
• Constitutions answer the following questions:

A. What are the purposes of the government?

B. How is the government organized?

C. How is the government suppose to go about doing its  business?

D. Who is considered to be a citizen?

E. Are citizens suppose to have any power or control over their

government? If so how is it to be exercised?

F. What rights and responsibilities, if any, are the citizens suppose to have?

• Every  nation has a constitution. Good governments and bad governments have constitutions. Some of the worst governments have constitutions that include lists of the basic rights of their citizens. It is important to remember that very few governments admit to violating natural rights. Almost all governments claim to be protectors of the people. Thus, it is important to listen to what governments do, not what they say!
• Having a constitution does not mean that a nation has a  constitutional government.
• A list of rights  does not  mean that the citizens actually have those rights. The former Soviet Union, and current countries such as North Korea, are great example of this. They list rights they simply do not protect them.
• If a constitution provides for the unlimited exercise of political power — by one, a few, or even many — it would not be the basis of a constitutional government.
• If a constitution says that the power of the government is to be limited, but does not include ways to enforce those limitations, it also is not the basis of aconstitutional government. The limits on government must be enforceable. This is the focus of the next section.

Defining “Constitutional Government”

• A constitutional government is best understood by comparing it with an  autocratic or dictatorial government.
• In an autocratic or dictatorial government, whether ruled by one person or many, power is unlimited. The person or persons who ultimately control the government can do whatever they want to do with the nation’s citizen’s and resources.
• In a constitutional government, the powers of the person or group controlling the government are limited by a set of laws  and/or established customs they mustand do obey. In short, constitutional governments are limited governments. They are governments in which there are limits, and those limitations areenforceable!
• Only in a constitutional government is the constitution considered to be a form of higher law that must be obeyed by the persons running the government. That is, it is the highest written law in the land. All other laws must agree, not violate, the higher law. The higher law of our country is our constitution.

The Characteristics of the “Higher Law” In a constitutional government, the constitution or higher law has the following characteristics:

• It sets forth the rights of citizens to life, liberty, and property. (Both the Dec. of Ind. and our Constitution do this, although it is clearer in the Declaration of Independence.)
• It establishes the responsibility of the government to protect those rights. (See both our Dec. of Ind. and Constitution.)
• It establishes limitations on how those in government may use their powers  with regard to: [a] citizen’s rights and responsibilities, [b] the distribution of resources,  and [c] the control of conflict. (See especially the Bill of Rights, and 14th Amendment.)
• It establishes the principle of a private domain — which means that there are areas of citizens lives that are no business of the government and in which the government cannot interfere.
• It can only be changed with the widespread consent of the citizens, and according to established and well-known procedures. (3/4 of the states must approve any changes to the constitution).
• Other than natural law, the constitution is the higher law under constitutionalism.

“The Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of convention, but from the general theory of a limited Constitution.”

–Alexander Hamilton, Federalist No. 81, 1788

What kinds of governments may be constitutional governments?

• It is possible in theory to have a constitutional government that is ruled by one person or a small group of people, so long as the rulers obey the limitations on their powers placed upon them by the “higher law” of the constitution. In theory this is true, in practice this rarely takes place.  Remember Lord of the Flies?

• However, history has shown that a problem usually arises when  a  constitutional government is ruled by one person or a small group of people. 

The Founders’ fear of the abuse of power   (Their understanding of human nature).

Given their knowledge of history and their experiences with the British government, it is not surprising that the Founders greatly feared the possible abuse of the powers of government. The following quotes reveal the concern most of our Founders had.

• ” Give all power to the many, they will oppress the few. Give all power to the few, they will oppress the many.”                             (Alexander Hamilton, 1787.)
• “There are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power and the love of money.”                                                                                                                                                                                                                                                                   (Benjamin Franklin, 1787.)
• “From the nature of man, we may be sure that those who have power in their hands … will always, when they can … increase it.”   (George Mason, 1787.)

Ask yourself:

1. What kind of view of human nature is expressed in these quotations?

2. If you held the view of human nature expressed in these quotations, what kind of safeguards would you include in your government to prevent the abuse of its power?

Topic #5   How can constitutional governments be organized to prevent the abuse of power?

This final lesson of Unit One deals with the main ideas used by the Framers to organize our government, so that it would be difficult for the government to abuse its power.  Because there will be people running the government, and people were a mess, the Framers made sure that power was both separated and checked [shared]. The chart below is how they separated the basic powers all governments exercise.

Purpose: When you finish this lesson you should be able to identify what powers (leg., exec., & jud.) are separated in our government, and why they are separated. You should also be able to explain the term checks and balances.

SEPARATION OF POWERS

Judicial Branch

Executive Branch

Legislative Branch

“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.”

James Madison,  Federalist #47, 1787.

Organizing a Constitutional Government

A study of constitutional governments will show that their powers are usually distributed among several different groups. This makes it less likely  that any one group will be able to abuse or misuse its powers. It also makes it less likely that any group will gain so much power that it can ignore the limitations placed upon it by the constitution.

To prevent the abuse of the powers of our government, the Framers provided for the separation of the powers of  and a system of checks and balances.  They were making sure that no one group could control the government. They recognized that “men weren’t angels” and at the same time men (people) would be running the government.

Therefore, it was important to organize the government with these facts in mind. 

Separation of Powers

In modern constitutional systems, powers are commonly divided among three branches of government.

1. The legislative branch is responsible for making laws [legislating].

2. The administrative or executive branch is responsible for carrying out and enforcing laws  [executing].

3. The judicial branch is responsible for managing conflicts over the interpretation, application, and enforcement of laws [judicating].

In Federalist #47 James Madison makes it clear that placing all three powers in the same hands is the very definition of tyranny. This is because there would be no external or internal checks on the power of government. Men are not perfect, whether they are in the government or out of it. No single authority can be trusted with all the powers of government to itself. Much as having a written Constitution would check or limit the power of the government from without, having distinct legislative, executive, and judicial powers of government would check or limit it from within.

Checks and Balances (Sharing power to limit power.)

The phrase checks and balances means that the powers given to the different branches of government are distributed or “balanced” so that no branch has so much power that it can completely dominate the others. Each branch has its own special powers.  Many of these powers are “checked” because they are shared with one or both of the other groups.

The Legislative branch is a good  example. Its power is divided between the House of Representatives and the Senate, which check each other by sharing power. The executive and judicial branches have also been given ways to check the legislative branch.

• The President can check the power of Congress by vetoing its laws.
• The Supreme Court can check the power of Congress by declaring its laws to be in violation of the Constitution and, therefore, invalid.

In much the same way, the powers of the executive (President) and the judiciary (Supreme Court) can be checked.  We will cover this more later.

The Complexity of Constitutional Government Separating and checking powers creates a complicated system. There are good reasons for this.

• The complicated ways in which constitutional governments are organized often mean that it takes them a long time to get things done.  With powerful conflicting interests involved, it is sometimes almost impossible to get things done. Contemporary events, as well as history, give ample evidence of this.
• Our Framers viewed this “inefficiency” as an advantage. (They saw excessive legislating as harmful.)
• The Framers  believed that these difficulties made it more likely,  that when a decision is finally made, it will be a good one.

In Closing.

In 1848, Europe, including France, went through a year of revolution in which the socialist agenda was pushed and pushed. This was French economist and historian Frederic Bastiat’s response to the push for more government ownership and control of life, liberty, and property.

Life, liberty, and property do not exist because men have

made laws. On the contrary, it was the fact that life, liberty,

and property existed beforehand that caused men to make

laws in the first place.

What, then, is law? It is the collective organization of the individual

right to lawful defense.

Each of us has a natural right – from God – to defend his person,

his liberty, and his property…. If every person has the right to

defend – even by force – his person, his liberty, and his property,

then it follows that a group of men have the right to organize

and support a common force to protect these rights constantly.

Thus the principle of collective right – its reason for existing, its

Lawfulness – is based on individual right. And the common force

that protects this collective right cannot logically have any other

purpose or any other mission than that for which it acts as a

substitute.

Bastiat is another example of the clarity of thought that is the foundation of our government. Rights adhere to individuals, and the main job of the government is to protect those rights, ie. Natural rights.

TEXT BOOK READING: pages 62 – 67.

Appendix A

~ Frédéric Bastiat – THE LAW ~

Copyright 1950, by Dean Russell. Permission to reprint granted without special request.

“Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.”

1848, Europe, including France, went through a year of revolution in which the socialist agenda was pushed and pushed. This was French economist and historian Frederic Bastiat’s response to the push for more government ownership and control of life, liberty, and property.

The law perverted! And the police powers of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law become the weapon of every kind of greed! Instead of checking crime, the law itself is guilty of the evils it is supposed to punish!

If this is true, it is a serious fact, and moral duty requires me to call the attention of my fellow-citizens to it.

~ Life Is a Gift from God ~

We hold from God the gift  which includes all others. This gift is life — physical, intellectual, and moral life.

But life cannot maintain itself alone. The Creator of life has entrusted us with the responsibility of preserving, developing, and perfecting it. In order that we may accomplish this, He has provided us with a collection of marvelous faculties. And He has put us in the midst of a variety of natural resources. By the application of our faculties to these natural resources we convert them into products, and use them. This process is necessary in order that life may run its appointed course.

Life, faculties, production–in other words, individuality, liberty, property — this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it.

Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.

~ What Is Law? ~

What, then, is law? It is the collective organization of the individual right to lawful defense.

Each of us has a natural right–from God–to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties?

If every person has the right to defend — even by force — his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right — its reason for existing, its lawfulness — is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.

Such a perversion of force would be, in both cases, contrary to our premise. Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers? Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces?

If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.

~ A Just and Enduring Government ~

If a nation were founded on this basis, it seems to me that order would prevail among the people, in thought as well as in deed. It seems to me that such a nation would have the most simple, easy to accept, economical, limited, nonoppressive, just, and enduring government imaginable — whatever its political form might be.

Under such an administration, everyone would understand that he possessed all the privileges as well as all the responsibilities of his existence. No one would have any argument with government, provided that his person was respected, his labor was free, and the fruits of his labor were protected against all unjust attack. When successful, we would not have to thank the state for our success. And, conversely, when unsuccessful, we would no more think of blaming the state for our misfortune than would the farmers blame the state because of hail or frost. The state would be felt only by the invaluable blessings of safety provided by this concept of government.

It can be further stated that, thanks to the non-intervention of the state in private affairs, our wants and their satisfactions would develop themselves in a logical manner. We would not see poor families seeking literary instruction before they have bread. We would not see cities populated at the expense of rural districts, nor rural districts at the expense of cities. We would not see the great displacements of capital, labor, and population that are caused by legislative decisions.

The sources of our existence are made uncertain and precarious by these state-created displacements. And, furthermore, these acts burden the government with increased responsibilities.

~ The Complete Perversion of the Law ~

But, unfortunately, law by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.

How has this perversion of the law been accomplished? And what have been the results? The law has been perverted by the influence of two entirely different causes: stupid greed and false philanthropy. Let us speak of the first.

~ A Fatal Tendency of Mankind ~

Self-preservation and self-development are common aspirations among all people. And if everyone enjoyed the unrestricted use of his faculties and the free disposition of the fruits of his labor, social progress would be ceaseless, uninterrupted, and unfailing.

But there is also another tendency that is common among people. When they can, they wish to live and prosper at the expense of others. This is no rash accusation. Nor does it come from a gloomy and uncharitable spirit. The annals of history bear witness to the truth of it: the incessant wars, mass migrations, religious persecutions, universal slavery, dishonesty in commerce, and monopolies.

This fatal desire has its origin in the very nature of man — in that primitive, universal, and insuppressible instinct that impels him to satisfy his desires with the least possible pain.

~ Property and Plunder ~

Man can live and satisfy his wants only by ceaseless labor; by the ceaseless application of his faculties to natural resources. This process is the origin of property.

But it is also true that a man may live and satisfy his wants by seizing and consuming the products of the labor of others. This process is the origin of plunder.

Now since man is naturally inclined to avoid pain — and since labor is pain in itself — it follows that men will resort to plunder whenever plunder is easier than work. History shows this quite clearly. And under these conditions, neither religion nor morality can stop it.

When, then, does plunder stop? It stops when it becomes more painful and more dangerous than labor.

It is evident, then, that the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of to work. All the measures of the law should protect property and punish plunder.

But, generally, the law is made by one man or one class of men. And since law cannot operate without the sanction and support of a dominating force, this force must be entrusted to those who make the laws.

This fact, combined with the fatal tendency that exists in the heart of man to satisfy his wants with the least possible effort, explains the almost universal perversion of the law. Thus it is easy to understand how law, instead of checking injustice, becomes the invincible weapon of injustice. It is easy to understand why the law is used by the legislator to destroy in varying degrees among the rest of the people, their personal independence by slavery, their liberty by oppression, and their property by plunder. This is done for the benefit of the person who makes the law, and in proportion to the power that he holds.

~ Victims of Lawful Plunder ~

Men naturally rebel against the injustice of which they are victims. Thus, when plunder is organized by law for the profit of those who make the law, all the plundered classes try somehow to enter — by peaceful or revolutionary means — into the making of laws. According to their degree of enlightenment, these plundered classes may propose one of two entirely different purposes when they attempt to attain political power: Either they may wish to stop lawful plunder, or they may wish to share in it.

Woe to the nation when the latter purpose prevails among the mass victims of lawful plunder when they, in turn, seize the power to make laws!

Until that happens, the few practice lawful plunder upon the many, a common practice where the right to participate in the making of law is limited to a few persons. But then, participation in the making of law becomes universal. And then, men seek to balance their conflicting interests by universal plunder. Instead of rooting out the injustices found in society, they make these injustices general. As soon as the plundered classes gain political power, they establish a system of reprisals against other classes. They do not abolish legal plunder. (This objective would demand more enlightenment than they possess.) Instead, they emulate their evil predecessors by participating in this legal plunder, even though it is against their own interests.

It is as if it were necessary, before a reign of justice appears, for everyone to suffer a cruel retribution — some for their evilness, and some for their lack of understanding.

~ The Results of Legal Plunder ~

It is impossible to introduce into society a greater change and a greater evil than this: the conversion of the law into an instrument of plunder.

What are the consequences of such a perversion? It would require volumes to describe them all. Thus we must content ourselves with pointing out the most striking.

In the first place, it erases from everyone’s conscience the distinction between justice and injustice.

No society can exist unless the laws are respected to a certain degree. The safest way to make laws respected is to make them respectable. When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them.

The nature of law is to maintain justice. This is so much the case that, in the minds of the people, law and justice are one and the same thing. There is in all of us a strong disposition to believe that anything lawful is also legitimate. This belief is so widespread that many persons have erroneously held that things are “just” because law makes them so. Thus, in order to make plunder appear just and sacred to many consciences, it is only necessary for the law to decree and sanction it.

A Summary of the US Constitution

The Preamble: the Preamble lists the reasons that the 13 original colonies separated from their mother country, and became an independent nation.

We the People of the United States,

in Order to form a more perfect Union,

establish Justice, make good government & laws

insure domestic Tranquility, peace in our homes

provide for the common defense, national security

promote the general Welfare, healthy communities

and secure the Blessings of Liberty freedom

to ourselves and our Posterity, family & friends

do ordain and establish give authority

this Constitution the supreme law of the land

for the United States of America.

The Seven Articles of the US Constitution

The Constitution is our plan for government. The Articles of the Constitution talk about the duties of the three main parts of government: the Executive Branch, the Legislative Branch, and the Judicial Branch.

The articles also talk about the separate powers of the Federal and State government, and how to change the Constitution.

Article 1: Legislative Branch: the U.S. Congress makes the laws for the United States. Congress has two parts, called “Houses,” the House of Representatives and the Senate.

Article 2: Executive Branch: the President, Vice-President, Cabinet, and Departments under the Cabinet Secretaries carry out the laws made by Congress.

Article 3: Judicial Branch: the Supreme Court decides court cases according to US Constitution. The courts under the Supreme Court decide criminal and civil court cases according to the correct federal, state, and local laws.

Article 4: States’ powers: States have the power to make and carry out their own laws. State laws that are related to the people and problems of their area. States respect other states laws and work together with other states to fix regional problems.

Article 5: Amendments: The Constitution can be changed. New amendments can be added to the US Constitution with the approval by a two-thirds vote in each house of Congress (67, 281) and three-fourth vote by the states (38).

Article 6: Federal powers: The Constitution and federal laws are higher than state and local laws. All laws must agree with the US Constitution.

Article 7: Ratification: The Constitution was presented to George Washington and the men at the Constitutional Convention on September 17, 1787, Representatives from twelve out of the thirteen original states signed the Constitution.   From September 1787 to July 1788, the states meet, talked about, and finally voted to approve the Constitution.

THE AMENDMENTS

The “Bill of Rights”

CIVIL LIBERTIES

1.              Freedom of religion, speech, press, and assembly.   [1791]

2.              Right to keep and bear arms.  [1791]

3.              Limitation on quartering of soldiers in private homes.   [1791]

RIGHTS  OF  THE  ACCUSED

4.              Limitation on searches and seizures.   [1791]

5.              Protection of personal and property rights.  Do not have to testify against oneself. [1791]

6.              Right to a speedy,  public,  and fair trial.  [1791]

7.              Trial by jury in civil cases.   [1791]

8.              Excessive bail and cruel and unusual punishments prohibited.  [1791]

OTHER RIGHTS

9.              People possess other rights besides those enumerated.  [1791]

10.           Undelegated powers belong to the States or the people.   [1791]

AFTER  THOUGHTS

11.           Exemption of states from suit by citizens of other states.   [1798]

12.           Election of the President and Vice-President on separate ballots. [1804]

CIVIL  WAR  AMENDMENTS

13.           Slavery prohibited.  [1865]

14.           Guarantees of due process of law and equal protection of laws against infringement by        states.  African-Americans  (Blacks) are citizens.    [1868]

15.           Black suffrage.   [1870]

PROGRESSIVE AMENDMENTS

16.           Congress empowered to impose an income tax.  [1913]

17.           Popular election of senators.  [1913]

18.           Prohibition of intoxicating liquors for beverage purposes.   [1919]

19.           Female suffrage.   [1920]

NEW  DEAL  AMENDMENTS

20.           Abolition of “Lame Duck” session of Congress.

Change in Congressional and Presidential terms.   [1933]

21.           Repeal of prohibition.   [1933]

22.           Limitation of Presidential terms of office.   [1951]

23.           Presidential vote for the District of Columbia.   [1961]

24.           Poll Tax prohibited in national elections.   [1964]

25.           Presidential disability and succession.  [1967]

26.           Eighteen year old suffrage.  [1971]

OTHER

27.           Increases in salaries must wait until the next term. [1992]

UNIT TWO:  HISTORY AND ENGLISH EXPERIENCE

In the first unit of this course, you studied some of the basic ideas of the natural rights philosophy, republicanism, and constitutional government. All of these influenced the thinking of the Founders. However, these were not the only influences upon their thinking. Many of them had studied the history of government in Western civilization. Most of them had personal experience in government before and after the Revolution. This unit will provide you with an overview of some of the most important historical events, and experiences, which influenced the forming of our government. To do this we will need to look back to England.

The United States Constitution, ratified in 1790, is the oldest written Constitution still in use, and without it the American government would be powerless.  Getting to this point, however, was the result of tedious negotiations and power struggles.  The road to freedom was long and began, in many ways, in the thirteenth century.  And, as the adage says, you have to crawl before you walk.  The process to representative democracy, a Republic, took many steps.

TOPIC  # 6:    What basic ideas of constitutional government were found in the government of England?

The Beginnings of English Government (This is a general history – to give you the big picture, and help you understand that much of what our government does comes from Great Britain.)

For the first thousand or so years after the birth of Christ, England was divided among a number of tribes, each ruled by its own leader or king. These kings were often selected by councils of  elders or advisors because they were the strongest and most powerful members of their tribes. For many years these tribes were at war with each other. Eventually all of the tribes of England became united under one king.

After England became a Christian country, the kings began to claim that the source of their authority was the “will of God.”  This idea  became known as the divine right of kings. James I, who ruled in the early 1600s stated the belief this way: “Kings are not only God’s lieutenants upon earth and sit upon God’s throne, but even by God himself they are called Gods…. I will not be content that my power be disputed on.”

Under this early type of English monarchy, all of the people were subject to the king’s rule — which is why they were called his “subjects.” The king usually exercised his control with the help of a council of trusted advisors.

Because England was a large nation, for its day, and since there were no quick and efficient means of communication or travel, most of the kings simply preferred to let people in local areas control themselves according to customs that had developed over the years.  This local control is sort of the seed that became the beginning of self-government, as minimal as it was, in Great Britain.

Feudal Government [English Style]

A major change in the way England was ruled took place on October 14, 1066, when William the Conqueror, the leader of the Normans, completed his invasion of England by defeating King Harold in the Battle of Hastings. A new feudal system of government was imposed on the people of England.  It had the following characteristics:

All of the people were divided into three groups called “orders.”

1.  Royalty – which included the king and queen and their family.

2.  Nobility -  which included the “lords” and “ladies” who were the major followers of the king or queen and who held titles such as earl or baron.

3.  Commons – or “common people,” made up of such different groups as knights, merchants, and peasants.  At  this  time peasants were called “serfs”  because they were not free and were forced to work on the land.

All of the territory of England was considered to belong to the king or queen,  thus the term kingdom. Because there was so much territory to control, the king or queen gave some of the responsibility for governing the kingdom to the nobility.  The nobles were allowed to control parts of the royal territory and the common people who lived upon it in exchange for military service. This convenient sharing of power by the royalty with the nobility eventually led to the development of aConstitutional Monarchy…(A monarchy limited by a constitution).

The Magna Carta (Charta) and the Development of Constitutional Government

The British laid the groundwork for representative government and individual freedom nearly 800 years ago with the Magna Carta, also known as the Great Charter.  It became a source of great inspiration to the American colonists seven centuries later, but in its infancy it seemed almost irrelevant because the king who signed it into law in 1215 virtually ignored it.

King John, poor and unpopular as a result of military defeat at the hands of the French, attempted to levy a scutage (a feudal fee paid in lieu of military service) on the barons (high level nobels) who had not joined in his campaign against the French. The barons protested and sides were drawn. While the king had far more resources than the barons did, they unexpectedly captured London, and with that John had to listen to them.

Before this revolt John (who was nicknamed “Lackland” because he lost most of his French territory to Philip Augustus, who ruled France at the time) also ran afoul of the most powerful pope in the Middle Ages, Pope Innocent III, over the appointment of an archbishop of Canterbury. The quarrel continued from 1206 – 1213, and came to a head when John refused to allow the man whom Pope Innocent declared to have been properly selected to enter England. The king was excommunicated and all the churches closed: no masses sung, no marriages or funerals conducted. Only baptism and confession for the dying were permitted. For seven years the churches were silent. In 1213 peace was arranged: the king surrendered.

By early 1215 the treasury was empty, again, and king John was being viewed as a failure. When he tried to levy the scutage and lost control of London to the rebelling barons it became clear that the only way to save his neck was to agree to their demands. He did this by signing the Magna Carta, at Runnymede, in the spring of 1215. So the Magna Carta was not a completely voluntary agreement.

What the barons wanted was simple:  traditional rights to be recognized, written down, and confirmed by the Royal seal, and sent to be read to all freemen in the counties of England.  What they got was more on paper than in reality.  The few most powerful families received most of the benefits. Nevertheless, another seed was planted.

In September 1215, a mere four months after signing the document, which was first known as the Article of the Barons, King John asked Pope Innocent III (whom the king lost an earlier battle with) to void it, saying that it had been forced on the king by violence and fear. In other words, it was signed under duress, and therefore, not binding. The pope came through declaring that the Magna Carta was a “shameful and demeaning agreement [that was] forced upon the king by violence and fear.”

The next year King John died and his nine-year-old son was crowned King Henry III.  With the nobles restless, the king’s regents reissued the charter. It would be revised and reissued again several times, with the final version coming in 1225.  However, this final version omitted one of the most important aspects of the original document, the need for an advisory and enforcement council (parlemenz later known as parliament). This rewriting removed one of the most important gains the nobles had made. However, in 1258, under pressure, Henry will reinstitute the council to avoid trouble, possibly a revolution, from his barons.

While the document and the idea behind it are very important. From a historical perspective the Magna Carta is extremely important. Nevertheless, at the time the Magna Carta was virtually irrelevant.  The seed was indeed planted, but the fruits of it were not yet realized.

Over the next 400 years, the Magna Carta was relegated to obscurity until Sir Edward Coke, the attorney general for Queen Elizabeth I, resurrected it in an effort to undermine the power of their rival Stuart kings in Scotland.  Coke even said that the monarchy, the king or queen, must obey the law.  It was Coke’s interpretation that helped the colonists to start demanding rights and privileges for themselves, and helped to start the ball rolling toward independence — and ultimately to the written Constitution that we have today. Seeing and understanding this is crucial in connecting the so-called “dots” of history.

The Magna Carta, 1215 [key parts]

JOHN, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to his archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, stewards, servants, and to all his officials and loyal subjects, Greeting.

KNOW THAT BEFORE GOD, for the health of our soul and those of our ancestors and heirs, to the honour of God, the exaltation of the holy Church, and the better ordering of our kingdom, …

(1) FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church’s elections – a right reckoned to be of the greatest necessity and importance to it – and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.

TO ALL FREE MEN OF OUR KINGDOM we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs:

(2) If any earl, baron, or other person that holds lands directly of the Crown, for military service, shall die, and at his death his heir shall be of full age and owe a `relief’, the heir shall have his inheritance on payment of the ancient scale of `relief’. That is to say, the heir or heirs of an earl shall pay £100 for the entire earl’s barony, the heir or heirs of a knight l00s. at most for the entire knight’s `fee’, and any man that owes less shall pay less, in accordance with the ancient usage of `fees’

(6) Heirs may be given in marriage, but not to someone of lower social standing. Before a marriage takes place, it shall be’ made known to the heir’s next-of-kin.

(20) For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. … None of these fines shall be imposed except by the assessment on oath of reputable men of

the neighbourhood.

(21) Earls and barons shall be fined only by their equals, and in proportion to the gravity of their offence.

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

(45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.

(52) To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgement of his equals, we will at once restore these.

(54) No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband.

(61) SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:

The barons shall elect twenty-five of their number to keep, and cause

to  be observed with all their might, the peace and liberties granted and confirmed

to them by this charter. [This was the advisory and enforcement council that

will disappear in 1225 and then reappear years later as the House of Lords.]

If we, our chief justice, our officials, or any of our servants offend in

any respect against any man, or transgress any of the articles of the peace

or of this security, and the offence is made known to four of the said

twenty-five barons, they shall come to us – or in our absence from the

kingdom to the chief justice – to declare it and claim immediate redress. If

we, or in our absence abroad the chief justice, make no redress within forty

days, reckoning from the day on which the offence was declared to us or to

him, the four barons shall refer the matter to the rest of the twenty-five

barons, who may distrain upon and assail us in every way possible, with the

support of the whole community of the land, by seizing our castles, lands,

possessions, or anything else saving only our own person and those of the

queen and our children, until they have secured such redress as they have

determined upon. Having secured the redress, they may then resume their

normal obedience to us.

If-one of the twenty-five barons dies or leaves the country, or is prevented

in any other way from discharging his duties, the rest of them shall choose

another baron in his place, at their discretion, who shall be duly sworn in

as they were.

In the event of disagreement among the twenty-five barons on any matter

referred to them for decision, the verdict of the majority present shall

have the same validity as a unanimous verdict of the whole twenty-five…

The twenty-five barons shall swear to obey all the above articles

faithfully, and shall cause them to be obeyed by others to the best of their power.

Both we and the barons have sworn that all this shall be observed in good faith and without deceit. Witness the abovementioned people and many others.

Given by our hand in the meadow that is called Runnymede, between Windsor and Staines, on the fifteenth day of June in the seventeenth year of our reign                      (i.e. 1215).

POINTS YOU NEED TO REMEMBER:

• One of the most important changes in the government of England took place in 1215.
• In that year the power of the king of England became limited by a written document called the Magna Carta.
• By this time it had become traditional for the kings and queens of England to share some of their powers with the nobility (barons).
• In 1215, King John tried to take back some of the rights and powers the nobles (barons) had grown accustomed to having. This coupled together with his ineptness as a ruler created trouble.
• The result was a war between the nobles and their king, a war that the nobles (barons) won.
• The nobles forced King John to sign the Magna Carta.  It listed the traditional rights of the nobles (barons) that the king could not take from them.  The rights included:

A.  the freedom of the church from the control of the king.

B.  the independence of the courts of England.

C.  the right of the people who owned land to pass it on to their oldest son.

D.  the right of people who owned land to a fair trial.

E.  the right to travel.

F.  the freedom from unnecessary searches of their homes.

• These rights did not apply to all of the people of England.  Men who owned property were given far more rights than were women or children or others without property.
• The Magna Carta was often vague, and it was feudal in character. It was nonetheless an important document for it did make it clear that the king was limited in what he could rightfully do, and it was one of those benchmarks on the way to establishing constitutional government in England.

Common Law

Another important development, in England, was that of Common Law. Common Law means a law common to all of England. As English rule and the English language extended to other lands in the 17^th, 18^th and 19th centuries, the common law also followed this expansion.  It arose as the law which emerged from the king’s court, as opposed to that in local or traditional courts. American Law is based on the English Common Law.

In England, the Common Law really began to take shape during the long reign of Henry II (1154-1189).  During the course of his reign, the king’s court was increasingly used to provide justice in the land. Itinerant justices (traveling judges) went out from a single central court carrying that court’s decisions and its law into every county making a common law for the whole kingdom — thus the term Common Law.

The shifting of power from King to Parliament in the English government.

Conflicts between the kings and their nobles continued after the signing of the Magna Carta. And though the Magna Carta was not very effective in its early years, the principles it contained slowly came to life.  The Magna Carta showed how a written document, or constitution, could be used to place limits on governmental power.

The next great change resulted in the separation of powers within the British government. In 1258, King Henry III (John’s son) and the nobles agreed to create a new council, called Parliament, to advise the king. In a sense, this was a reinstitution of the council of 25 barons in the original Magna Carta.

During the next 30 years, Parliament became the branch of government that represented the most powerful families, orders or groups in the kingdom. Remember, within the nobility there were more powerful and less powerful groups or families. Parliament became the place of power for the very powerful barons (nobles).

The major function of Parliament as it first began to take shape was to serve as a court, essentially a supreme court. It settled major disputes which arose in the land. Powerful nobles served as both advisors, to the king, and judges.  As it grew in importance it became an instrument for issuing the decrees of the king. In doing so, parliament was transitioning to becoming more of a legislature.

A few years later king Edward I issued a call for a parliament to meet on November 13, 1295.  The resulting body has been known to history as the Model Parliament, because of the representative character of the members. King Edward set forth the basic principle of representation in his call, by declaring: “As the most righteous law established by the … sacred princes (reference to the Provisions of Oxford, 1258), exhorts and ordains that  that which  touches all shall  be  approved  by  all,  it is very evident that common dangers must be met by measures concerted in common…”   King Edward’s words were a call for broadly  representative government. In other words, government that was very representative (democratic).

Later, during the reign of Edward III (1327 – 1377), Parliament took the definite form of a legislature. A legislature with two houses (chambers): the House of Lordsand the House of Commons.  After 1327 the Commons’ right to be present in every parliament was recognized. The Commons was made up of non- nobles (common people) who owned property (land). In return for grants of money they expected their grievances to be listened to and they presented them in the form of the Commons Petition (a written complaint/request).

The following was the usual procedure when Parliament assembled. It began with a solemn address, often from the Chancellor, explaining the king’s needs.  Then the whole body split up into the two houses. One house consisted of the lords who had been individually summoned because of their personal importance – the earls, the barons, bishops, and the abbots of great abbeys.  The other the Commons deliberated separately and negotiated with king and lords until agreement was reached over the grant of money to be made. The whole process was usually over in a few weeks.

The Nobles Lose Some Power

The nobility (lords) provided the main restraints on the king in the Middle Ages. However, during the War of the Roses (1447 – 1485)  they,  the nobles, were virtually wiped out.  Their numbers decreased drastically. Henry VII (Tudor/Lancaster families) the eventual winner began the Tudor line of kings. The Tudors had very little hereditary claim to the throne. Henry VII tacitly allied himself with the merchants and gentry who were represented in the House of Commons and did everything he could to subjugate the Lords. Thus after he defeated Richard III, he summoned Parliament and placed before it a claim to the throne based on the rights of both conquest and heredity, not just heredity. Parliament granted him the crown, but was silent on about his hereditary right which, as a matter of fact, did not exist.  In essence, the Tudors’ rule was based upon a parliamentary grant (a form of consent). This increased the role of the commons and decreased the role of the nobility. In other words, the House of Commons gained some power and the House of Lords lost some power.

Henry VIII had an additional reason to that of legitimizing his claim to the throne for using Parliament. He needed and used Parliament to take England out of the Roman Catholic Church.  Thus the power of Parliament grew more, especially the House of Commons. It is important to remember that Henry VIII valued Parliament because it served as his instrument of government, not because he believed in representative government. To him, Parliament was sort of a necessary evil.

The fact that the English Parliament had survived and even gained prestige at a time when absolute monarchies were the rule elsewhere in Europe had great bearing on the future American government (even though its founding was nearly 200 years off).

The last Tudor, Elizabeth I, told the members of Parliament that “Though God hath raised me high, yet this I count the glory of my crown, that I have reigned with your loves!”  Queen Elizabeth I died in 1603.  She was succeeded by King James Stuart of Scotland (King James VI), who became King James I of England. He ruled from 1603 to 1625. (During his reign the King James Bible was published, 1611.)His son Charles I ruled from 1625 to 1649.  During Charles’ reign more big changes will come.

The Struggle for a Balance of Power Continues

As stated, the Parliament was made up of two houses: The House of Lords which represented the interests of the nobility and the House of Commons which represented the common people (which owned large amounts of land but were not members of the nobility).  For hundreds of years royalty, nobility, and commoners struggled against each other for power.  The following events took place during the time of the early settlement of the English colonies in America.

EVENTS:

• 1621.  Members of the House of Commons insisted on having the right to take part in making governmental decisions. King James I responded by disbanding Parliament the following year.
• 1628.  Members of Parliament forced the king (Charles I) to sign the Petition of Right. The petition included the liberties Englishmen had won in the past and the customs they lived by and supported.  Now the customs, traditions, and liberties were set forth in an official written document agreed upon by Parliament and signed by the king.

Petition of Right  June 7, 1628  (key parts)

To the King’s most excellent majesty.

HUMBLY shew  unto our sovereign lord the King,  the lords spiritual and  temporal, and  commons in  parliament assembled,  That whereas it  is declared  and enacted by a  statute made in the time of the  reign of King Edward  the First  commonly called  Statutum de  tallagio non  concedendo, That  no tallage or aid  shall be laid or levied by the King  or his heirs in  this  realm, without  the good  will  and assent  of the  archbishops, bishops,  earls, barons, knights, burgesses, and other the  freemen of the commonality  of this realm;

III.    And  where also  by the  statute called The  great charter (the Magna Carta)of  the liberties of  England, it is declared and enacted, That no  freeman may be taken or  imprisoned, or be disseised of his freehold or liberties, or his free  customs, or be  outlawed or exiled,  or in manner destroyed,  but by

the lawful judgment of his peers, or by the law of the land.

X.    They do therefore  humbly pray your most excellent  Majesty, That no man  hereafter be compelled to make or yield any  gift, loan, benevolence, tax,  or such-like charge,  without common  consent by act  of parliament;…

EVENTS cont…

• Parliament was powerful enough to pass a law denying the king the right to disband it without its consent.
• During the English Civil War,  Parliament was powerful enough to put King Charles I on trial for treason and to have him executed.
• 1653 – 1658.   Oliver Cromwell, an English general, took power and completely abolished the title and positions of the king and the House of Lords.
• The monarchy was restored and Charles II became king.
• In the  Glorious Revolution  King James II, the younger brother of Charles II, was forced to flee England because of his arbitrary methods of government (the fact that he was brazenly pro-Catholic also played a major role in his ouster). It was at this time that John Locke wrote his Second Treatise on Government.
• 1689.   The   Toleration  Act   increased the religious freedom of  most  people in England.   However, the Act of Settlement, 1701, made it clear that all kings of England would thereafter be Protestant.
• Parliament created a  Bill of Rights (the English Bill of Rights).

The English Bill of Rights was formally passed through Parliament after the coronation of the new king William III. On December 16, 1689, the King and Queen gave it Royal Assent which represented the end of the concept of divine right of  kings. No longer would kings successfully claim that God endorsed their holding the title of king. Essentially, the Bill of Rights was designed to control the power of kings and queens and to make them subject to laws passed by Parliament.  This concession by the royal family has been called the “bloodless revolution” or the “glorious revolution.”  It was certainly an era for a more tolerant royal prerogative. William, for example, did not seek to oppress the supporters of the deposed and Catholic King James II, even as James tried as best he could to rally the Catholic forces within England, Scotland and Ireland against King William III.

The Bill of Rights was one of three very important laws made at this time. The other two were  the 1689 Toleration Act (which promoted religious toleration) and the 1694 Triennial Act, which prevented  the King from dissolving Parliament at his will and held that general elections had to be held every three years.

The English Bill of Rights – 1689 (key parts)

WHEREAS THE LORDS SPIRITUAL AND TEMPORAL, AND COMMONS, ASSEMBLED AT WESTMINSTER, LAWFULLY, FULLY, AND FREELY REPRESENTING ALL THE ESTATES OF THE PEOPLE OF THIS REALM, DID UPON THE THIRTEENTH DAY OF FEBRUARY, IN 1689, PRESENT UNTO THEIR MAJESTIES THEN CALLED AND KNOWN BY THE NAMES AND STYLE OF WILLIAM AND MARY, PRINCE AND PRINCESS OF ORANGE, BEING PRESENT IN THEIR PROPER PERSONS, A CERTAIN DECLARATION IN WRITING, MADE BY THE SAID LORDS AND COMMONS, IN THE WORDS FOLLOWING:

Whereas the late King James the Second, by the assistance of divers evil counselors, judges, and ministers employed by him, did endeavour to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom.

• By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of parliament.
• By levying money for and to the use of the crown, by pretense of prerogative, for other time, and in other manner, than the same was granted by parliament.
• By raising and keeping a standing army within this kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law.
• By causing several good subjects, being protestants, to be disarmed, at the same time when papists     were both armed and employed, contrary to law.
• By violating the freedom of election of members to serve in parliament.
• By prosecutions in the court of King’s bench, for matters and causes cognizable only in parliament;  and by divers other arbitrary and illegal courses.
• And whereas of late years, partial, corrupt, and unqualified persons have been returned and served on juries in trials and particularly divers jurors in trials for high treason, which were not freeholders.
• And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subject.
• And excessive fines have been imposed; and illegal and cruel punishments inflicted….

And whereas the said late King James II having abdicated the government, and the throne being thereby vacant, his highness the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power)…

• That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal…
• That levying money for or to the use of the crown, by pretense of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal.
• That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.
• That the raising or keeping a standing army within the kingdom in time of peace, unless it be with  consent of parliament, is against law.
• That the subjects which are protestants, may have arms for their defense suitable to their conditions, and as allowed by law.
• That election of members of parliament ought to be free.
• That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.
• That excessive bail ought not to be required,nor excessive fines

imposed; nor cruel and unusual punishments inflicted.

The English Bill of Rights restored the balance of power between the king and Parliament that had been upset by King James II.  For a king’s reign to be successful he had to compromise. He had to work with Parliament. He had to, at times, compromise.

With passage of the English Bill of Rights kings and queens were not allowed to:

1.   collect taxes without the consent of Parliament.

2.   interfere with the right to free speech and debate that went on in Parliament.

3.   maintain an army during times of peace  (since it might be used to take over the government).

4.   require excessive bail or administer cruel and unusual punishment for those accused or convicted of crimes.

5.   declare that laws made by Parliament should not be obeyed, as King James II had done.

The Bill of Rights also included the principles that:

1.   everyone must obey the law, even the King and Parliament.

2.   elections must be free, and

3.   the people have the right to keep and carry weapons.

It is important to note that Parliament, even after the Glorious Revolution, was not completely independent of the king.   It was only free in its debates and actions (which was tremendous progress).  The king still summoned Parliament, and he could dismiss a session of Parliament or dissolve it.  It was still the case, at least in the 18th century, that legislative acts were very much the acts of the king-in-parliament. That is, Parliament usually followed the lead of the king. The king was less powerful than in the past, but still powerful.

Although little was said about the independence of the courts or the rights and liberties of people, in the great documents of this era, gains were being made in these matters as well, though less dramatically than in the adjustment of powers between the king and parliament. As British historian George M. Trevelyan (in History of England, vol. II, Garden City, New York: Doubleday, 1953, p.274) put it: “Justice and humanity … gained greatly from the single overthrow of James…. The Judges ceased to be removable at the will of the Crown [King]. Trials were conducted with decency and on the whole with fairness.  Cruel floggings and exorbitant fines ceased to be a usual weapon of party politics.  In 1695 the Censorship of the Press was allowed to lapse….”  What this teaches us is that the independence of the courts, and press, is necessary for justice (good government)to have a chance. As long as the executive, such as King James II, could strong arm the judges, and control the press, people were at the mercy of the executive (the king), and true justice was lacking.

Although the Toleration Act of 1689 brought to an end the attempt of the government to force everyone into the mold of the Church of England, it was still the established church. However, it no longer had a monopoly over religious observance in the country.

Balanced Powers and Representative Government

During a relatively short period  of time ( roughly 70 to 80 years), the  balance of power in the English government shifted  tremendously from the king to the Parliament.  The basic idea of  representative  government had become firmly established.

However,  only  men with property had the right to vote and to be a member of the  House of Commons. Most people today would consider the government  corrupt  because these men often served their own interests at the expense of  the  common welfare.

In 1707,  England  and  Scotland,  which until then had its own parliament,  agreed to join together along with  Wales  to create the  kingdom of  Great Britain.  Great Britain was getting larger, yet it remained representative. The people in these new areas were allowed to have representation in Parliament. However, for logistical reasons the colonists will have representative bodies in their respective colonies, but not representation in Parliament.

Nevertheless,  during the colonial period, the British government was becoming increasingly limited in what it could do by a constitution  which included the following:

1.   A set of documents and customs,  including the  Magna Carta  and the  English Bill of Rights,  which set  limits  on the powers of the government and spelled out the  rights  of English  freemen.

2.   A system of  responsible  government  in which ministers appointed by the king were  directly responsible to Parliament.

3.   A system in which the executive, legislative, and judicial  powers were separated  among  the monarchy, Parliament, and the courts.

The “balanced constitution” of the British government was greatly admired in other nations.  The French political philosopher Montesquieu called the British government “this beautiful system” because he felt that it was perfectly balanced and, therefore, the only one in the world in which the constitution guaranteed political liberty.

TEXT BOOK READING: pages 28 – 33 and  631 – 633.

TOPIC  SEVEN:  What basic ideas about constitutional government were found in the colonial governments? (Bringing Self-Government to America) 

Purpose: When you finish this lesson you should be able to describe the basic ideas of constitutional government that existed in the colonial governments. You should be able to identify the factors that resulted in the colonists having a great degree of self-government while officially being British subjects. You should also be able to identify: Pilgrims, charter, loyal subjects, and Mayflower Compact.

INTRODUCTION

Settlers to the New World began coming to America on a regular basis in the early seventeenth century. Among them were the Pilgrims, who fled England in 1620 in hopes of finding religious freedom and tolerance in the new land.

The Pilgrims wanted to protect the rights of all the men who came to America. These rights included religious freedom and the belief that legitimate government is based on the consent of the governed. To this end, 41 members of their contingent wrote and signed the Mayflower Compact (an excellent example of a Social Contract), the first written agreement for self-government in America. They agreed to obey the officers they would elect and the laws these officers might pass.

“In the name of God, Amen. We whose names are underwritten, the loyal

subjects of our dread sovereign Lord King James, by the grace of God,

of Great Britain, France, and Ireland … do by these presents solemnly and

mutually in the presence of God and one another, covenant and combine

ourselves together into a civil body politic for our better ordering …”

– The Mayflower Compact, 1620

Over the next 150 years, the various colonies began establishing different rules, depending on the status of their charters ( a charter is a formal written agreement describing the rights and responsibilities of a territory or a state and its citizens).  For the most part, these charters included some variation of free elections, no taxation without representation, the right to trial by jury, as well as other things.

LOYAL SUBJECTS OF ENGLAND IN AMERICA

The … law of England is the … law of the [colonies] … Let an Englishman go where he will, he carries as much of the law and liberty with, as the nature of things will bear.

(Opinion of the counsel to the Board of Trade in London, 1720).

The English colonists who came to the New World considered themselves to be loyal subjects of England. They brought with them English customs, English laws, and English ideas about good government.

For more than 150 years the colonies were ruled by the government of England. However, because they were so far from England, they needed to have their own local governments as well. Their charters were somewhat similar to a state constitution, and provided the framework for local self-government.

The colonial governments were ultimately under the control of the English government. The powers of the colonial governments were limited and could not violate the English constitution, laws, traditions, or government policies.  English law was, in this sense, a higher law than colonial law.

BASIC IDEAS OF CONSTITUTIONAL GOVERNMENT IN THE COLONIAL GOVERNMENTS

NATURAL RIGHTS -  The laws of the colonial governments were based in part on the idea that the purpose of government was to protect the people’s natural rights to life, liberty, and property. This idea was reflected to some extent in the English common law.

It is important to remember that at this time in history legal rights, for example, the right to vote, usually meant the rights of white men  who owned a certain amount of property. At the time of the American Revolution, only about 10 percent of the men in Great Britain had the right to vote. People who did not have such rights were (a) women, (b) free white men who were indentured servants, (c) free black men, (d) slaves, and (e) Indians. Women, for example, not only did not have the right to vote but, under English law, “the husband and wife are one person…the very being or legal existence of the women is suspended during the marriage.”

HIGHER LAW -  This idea is reflected in the general rule that members of the colonial governments could not make any laws or do anything that violated the English constitution.  The English law was considered a higher law which was superior to any laws the colonial governments might make.

SEPARATION OF POWERS -  As in England, the powers of government in the colonies were separated among the following three branches of government.

1.   An  EXECUTIVE   branch.   GOVERNORS  were responsible for carrying out and enforcing the law.  In most of the colonies, by the time of the American Revolution, the governors were chosen either by the king or the proprietors. Only in Connecticut and Rhode Island were the governors elected by those men in the colonies who were allowed to vote.

2. A  LEGISLATIVE  branch. All of the colonies had  LEGISLATURES    which were responsible for making laws.   Each one similar to the Parliament in England with an “upper house” like the House of Lords and a “lower house” like the House of Commons.  Members of the upper house were either appointed by the governor or elected by the most wealthy property owners of the colony.  The lower house was elected by all of the men in the colony who owned a certain amount of property. Pennsylvania was an exception; it only had one house.

3.   A  JUDICIAL   branch.  This branch was made up of judges called   MAGISTRATES    who were usually appointed by the governor.  They not only presided at trials, they were also responsible for making sure the colonies were being governed in a way that was consistent with English law and tradition.

CHECKS AND BALANCES -   Power was separated and in some cases   shared   among these branches, so that the use of power by one branch of government could be   checked  by that of another.  The powers of the governors were checked by (a) their inability to collect taxes without the consent of the legislature, (b) their inability to have persons imprisoned without a trial by a magistrate, and (c) the fact that their salary was decided upon by the legislature.

The powers of the legislatures were checked by (a) their having to rely on the governor to enforce the laws they passed, (b) the power of the magistrates to make sure they did not make laws that violated those of England, and (c) in some colonies, the veto power held by the governor.

The powers of the magistrates were checked by (a) the fact that they were appointed by the governor, (b) the power of the governor or legislature to remove them if their decisions seemed inappropriate, (c) their reliance on the governor to enforce their decisions, and (d) the basic right of every Englishman to a trial by a jury of his peers from the community.

REPRESENTATIVE  GOVERNMENT AND THE RIGHT TO VOTE -  Soon after passing the Bill of Rights, the English Parliament insisted upon the idea of representative government in the colonies.  At least one house in each colony’s legislature was required to be elected by eligible voters.

THE COLONISTS FREEDOM TO GOVERN THEMSELVES

The ideas the colonists brought with them from England were important. They used these ideas when they set up their own local governments. Furthermore the colonies had a great deal of freedom to govern themselves as they wished!  This freedom was a result of the following:

1.   Their great distance from England. [Three to four months travel time.]

2.   England was often at war with other European countries and did not have time to supervise the colonies. [England was often preoccupied.]

3.   The American colonies were made up of a large population of people who came from England.  The American colonies were “set up” colonies, not “conquered” colonies. The British did not conquer a people and force a government on them. Instead, people from Britain (England) came to America and set up colonies.  Americans were transplanted Brits (peopel British cousins, not a conquered people.  It was more natural to treat the American colonists better than subjects in other colonies, such as India, that were conquered lands with people who were not closely linked to England.

As a result, the colonists became used to the idea of having a large voice in their own government. They were, for the most part, governing themselves. They had colonial legislatures, town councils, and were the least taxed people in the British Empire.  However, after 150 years of being loyal British subjects, a number of events lead to the decision to break free from British rule and begin a new nation.

TOPIC  EIGHT:      Why did the colonies want to free themselves from Great Britain?

Purpose:   When you are done with this lesson you should be able to identify situations in which the colonists claimed the British government violated some of the basic principles of constitutional government.

PREVENTING THE ABUSE OF POWER

As you have learned, many people in Europe and the colonies believed that the great strength of the English government was that its powers were separated among different branches that represented different classes of people. [The House of Lords = the nobility,  the House of Commons = the common people with property, and the King/Queen = the royalty.] They thought that the British  system  was set up in such a way that it would keep the government under control. It was, as Montesquieu pointed out, a mixed government. The king was the monarch (monarchy), the House of Lords  the aristocracy, and the House of Commons was the democratic part.

However, during the colonial period, a number of events led some people to think that the British  system of government was not working properly. Part of the problem was that as England became a large empire with colonies all over the world [ thus the saying "the sun never sets on the British Empire"] it became very difficult to prevent corruption from creeping into the government.

ENGLAND BECOMES A WORLD POWER AND CHARGES OF CORRUPTION RESULT

In the late 1600s, England was becoming a powerful nation.  In fact, it was the most powerful nation on the earth. It had an army and navy that could exert its power all over the world. It had many colonies that provided it with great wealth and other resources. The larger and more complicated the nation became,  the  more  need there was for a more efficient and effective national government. To improve their ability to govern the nation, Parliament and the king agreed to establish  departments called ministries.  These departments would be headed by managers called ministers. Their job was to run the growing bureaucracy of the government.  This growing bureaucracy was like all large bureaucracies, very costly and ripe for overspending, waste, and corruption.

The king and his ministers made up the  executive  branch  of government. Thus the executive branch grew more than the other branches.  As it grew it became more powerful, more wasteful, and more corrupt.

By the early 1720s there were some people in Great Britain who believed that the executive branch was becoming too powerful. They were worried that this loss of a proper balance of power between the different branches of government would enable the king and his ministers to gain so much power that they could ignore the limitations placed upon them by the English constitution, violate the rights of the people, and favor their own interests at the expense of the common good.

It became common for the  king to bribe members of Parliament. Taxes were increased to support the larger military that was now needed. Many were concerned that the  king and his ministers  were cooperating  too  closely  with  bankers  and  businessmen  at  the expense of the common people.  In short, things were getting out of control.  It one sense England was becoming more wealthy.  Yet more money was needed to run the growing empire, and so more taxes were needed. In addition, the cost of fighting France in the French Indian War made the national debt a problem that could tank the British economy.

The mercantilist bias that was the belief of the day made things worse. Under mercantilism people believed that governments should favor merchants with tariffs which would protect the businesses that were dominant in their particular nation. When that concept includes a belief that money should be tied to precious metals, such as gold and silver, growing economies often suffer from a shortage of money. This can often result in unnecessary recessions. At this time, the mercantilist policies of Great Britain will do much to harm the economy in the colonies.

THE COMING AMERICAN REVOLUTION - THE BRITISH GOVERNMENT TIGHTENS CONTROL OVER THE COLONIES

The colonists in America were somewhat aware of the problems facing the British government. However, since the British government had left them alone for the most part, they were not, at first, seriously concerned about the warning signs.

The American colonists did become alarmed when the British government began to develop an increased thirst in tightening its control over them. This interest was, at least partially, because the colonists had been able to get away with not obeying many of the laws passed by Parliament (which they didn’t like), such as the Navigation Acts which controlled much of their trade.

Also, Great Britain had been at war with France.  During the “French and Indian War,” the French had used American Indians to help them fight against the British forts and the colonial settlements in the west. Although Great Britain had won the war, the cost  of the war and the cost of keeping their troops in the colonies to protect the colonists was high. Even after the war there was still trouble on the frontier because the colonists were moving westward and taking the Indians’ lands.

Nevertheless, if we were to look at the American mindset at this time it would be fair to say that most Americans had a favorable view of the British Empire they were a part of.  They felt affection for Great Britain, and thoughts of independence would not have crossed their minds.

While colonist’s feelings towards Great Britain were positive, many British officials felt contemptuous of the colonials.  British officials seem to have a drive to increase royal control over the colonists beyond anything that had previously been attempted. This drive to gain new and stronger authority over America began in 1763, and led, eventually, to American independence.

EARLY SIGNS (Writs of Assistance)

There were signs, before 1763, that Americans would not accept a reduction of their freedom. These indicators are evident in the matter of the Writs of Assistance(general search warrants issued to help royal officials stop colonial evasion of Britain’s mercantilist trade restrictions).

In 1761 a young Boston lawyer named James Otis argued before a Massachusetts court that Writs of Assistance were contrary to natural law. He made his point though he lost his case, and others in the colonies joined in protesting against the Writs.

KING GEORGE III, PRIME MINISTER GRENVILLE and TOWNSHEND

In 1763 the strongly anti-American George Grenville became prime minister and set out to solve the debt issue, huge after the French Indian War, and what he saw as other pressing problems that involved the colonies. He followed one of England’s greatest prime ministers, William Pitt. The sequence was like this: October, 1760, George II died and his son George III took over; in October of 1761, William Pitt is forced to resign; and in 1763 George Grenville becomes prime minister.

To reduce the problem the colonists were having with the Indians, the British  government, on Grenville’s recommendation,  ordered   the   colonists  to move back from the frontier.  Parliament, led by Grenville, and the king,  increased  the  colonists’  taxes  to help pay for the costs of keeping British troops in the colonies, to protect them from the Indians, and to help pay down Great Britain’s national debt. As you will read, other measures were also enacted that kept ratcheting up the tension between the mother country and the colonies.

Winston Churchill, in his History of the English-Speaking Peoples (pages 263 – 265) described the change George III brought, and the general situation that developed, this way:

Both George I and George II were aliens, their Court was predominantly

German. Now all was changed. George III was, or thought he was,  an

Englishman born and bred. At any rate he tried to be.  “George, be King,”

his mother said, according to tradition, and George did his best to obey.

…George III was also determined that the colonies should pay their share

in the expenses of the Empire…  For this there were strong arguments.

England had supplied most of the men and money in the struggle with

France for their protection, and indeed their survival; but the methods

used by the British Government were ineffective and imprudent…

… It was resolved to impose a tax on the colonies’ imports, and in 1764

Parliament strengthened the Molasses Act of 1733. [Sugar Act, 1764]

This Act, imposing a heavy duty on foreign imports, had long been

evaded by the colonists. The new regulations were therefore a serious

blow.

… The results were unsatisfactory on both sides of the Atlantic. The

British Government found that  the taxes brought in very little money;

… Grenville and his lieutenant Charles Townshend proposed that all

colonial legal documents should be stamped, for a fee. [Stamp Act, 1765]

Part of the problem with the Stamp Act was that it was imposed on newspapers.  Many of the most “vehement partisans of the extremist party,” to use Churchill’s words, were journalists.  Not the right people to make angry in this situation. Slowly things will get worse.  And key turning point seems to center around the actions of these men: George III, Grenville, and Townshend.

Between George III, Grenville, and the opportunistic politician Charles Townshend, the relationship between Great Britain (England) and the colonies will sour.

THE COLONISTS RESIST

Although some colonists accepted these acts of Parliament,  a  large number began to resist them. This resistance was, in part, because of  new  taxes  and  trade laws, which meant that some colonists were going to lose  money.

Another important reason, maybe the most important, was that over the years the colonists had become more firmly attached to the idea of  representative government. The colonists were convinced that representative government was the best way to be sure that their government would respect their rights and interests. Since the colonists did not have the right to vote for representatives to serve their interests in the British Parliament, some of them argued that Parliament did not have the right to pass laws taxing them. They thought that tax laws should only be made by their own colonial legislatures where they had the right to vote for representatives to protect their interests. You are probably familiar with the colonist’s demand that their be “no taxation without representation.”

As the British continued to  control  more  the colonists  resisted  more. The following is a Revolutionary Chronology.

1764

SUGAR ACT – was the first law aimed at raising colonial money for the Crown (British government).  Legalized and taxed imported molasses from the French and Dutch West Indies. A tax not approved by elected representatives!  All violations would be tried in vice-admiralty courts, which did not use juries!

CURRENCY ACT – prohibited colonies from issuing their own currency (not redeemable in gold or silver). Created a money shortage and other economic problems for the colonists.

- First protests against “taxation without representation.”

- Non-importation boycott against British goods begins.

1765

QUARTERING ACT – of 1765 required the colonists to provide barracks and supplies for British troops. (In 1774 the Quartering Act is expanded to allow for the quartering of troops in private dwellings.)   This increased the colonist’s fears of having a large army in the colonies which was controlled by the British government.

STAMP ACT – March 22, 1765 was the first direct tax on the American colonies. It taxed all kinds of printed matter, including newspapers, legal documents, and even dice and playing cards. All such items required a government stamp, as proof that the tax on them had been paid. Any violation was to be tried in vice-admiralty courts.  (The idea of taxing the colonies had been approved by Parliament back in 1724, but no action had been taken.)

- Colonial protest became highly organized.  James Otis is the early leader.

- Sons of Liberty created by Samuel Adams to continue and expand the protest                                                           movement.

- Intimidated by colonial activists, royal stamp agents resign in large numbers.

The Stamp Act Congress is formed; passes a  “Declaration of Rights and Grievances” to protest taxation without representation,”  the use of vice-admiralty courts, and endorse the boycott (which cut trade with Britain roughly 25%.

Ben Franklin (in England) testifies that the colonies cannot afford the tax and an armed invasion would most likely result in outright rebellion.

1766

Grenville dismissed – fickle King George III dismisses his prime minister over an unrelated disagreement. Charles Lord Rockingham creates a new cabinet. His  cabinet will not serve very long. A new

REPEAL OF THE STAMP ACT – March 18,1766.  Colonies end boycott.

DECLARATORY ACT – Same day (March 18, 1766). Declared Parliament’s authority to make laws binding on the American colonies – “in all cases whatsoever.”  Parliament had acknowledged colonial rights, only to deny them again.

1767

TOWNSHEND ACTS – In August 1766, Charles Townshend,  a cynical and opportunistic politician,  accepted the post of chancellor of the exchequer (the British equivalent of secretary of the treasury). He convinced Parliament to begin passing a series of acts named for him.  The Townshend Acts (passed in 1767) included the following:

- The Townshend Revenue Act: taxes levied on lead, glass, tea, paint, and imported paper.  The revenues were to pay for the cost of the military stationed in the colonies, and to pay the salaries of royal colonial officials.

- An act establishing a new system of customs commissioners. Among the worst royal officers were the customs commissioners Townshend unleashed upon the colonies. They were experts at “customs racketeering.”  Typically their scheme worked like this: Customs commissioners would, for a period of time, purposely refrain from enforcing the complex technicalities governing the duties.  Then, without warning, they would suddenly crack down, seize all merchant vessels that were not in compliance with the hitherto unenforced regulations, and asses huge duties plus fines.  Of all funds collected, a third went to the royal treasury, a third to the royal governor of the colony, and a third to the customs commissioner who had made the seizure.  If the merchant could not pay, the ship and its cargo were sold at auction, with the proceeds divided the same way.

- An act suspending the New York Assembly,  (June 15, 1767): because the New York assembly refused to authorize funds mandated by the Quartering Act.

-   The colonists began to sense that they were being subjected to out-and-out tyranny.

- John Dickinson published: Letters from a Farmer in Pennsylvania to the Inhabitants of the British Colonies,  asserting that Parliament had no right to tax the colonies.

1768

Massachusetts Circular Letter (1768)  -  drafted by James Otis and Sons of Liberty founder Samuel Adams.  It is an argument against taxation without representation, and is circulated, calling for unified resistance by all the colonies.

-   Royal governor of Massachusetts dissolves the colonial legislature.

-   British troops arrive in Boston.

-   Liberty incident: in May the sloop Liberty, belonging to John Hancock, the most prominent Boston merchant, was stopped and searched near the coast by British Customs officers. Some colonists rescued it by force.

1769

Virginia House of Burgesses (Virginia’s legislature) passes resolutions condemning Britain’s actions against Massachusetts; asserts that only Virginia’s governor and legislature may tax its citizens.

-   Virginia legislature is ordered dissolved.

1770

Townshend taxes repealed, except for the tax on tea.

-   The colonies again stop the boycott.

Battle of Golden Hill – clash between citizens and British Troops in New York City.

March 5: BOSTON  MASSACRE – another event that convinced some of the Americans that the British government was a threat to their rights.  A mob of citizens that had attacked a sentry at the Customs House in Boston was fired on by British troops.  Five (some sources say seven, others more) people were killed . The British soldiers who had been charged with murder were found innocent of the charge of murder, though two were convicted of manslaughter.  Taxes and duties may have been a subtle sign of tyranny, but the killing of citizens was not. The Boston Massacre made the colonists more resistant to British efforts to control them.

1772

Samuel Adams calls for a Boston town meeting to create committees of correspondence to communicate Boston’s position to the other colonies; such committees spring up throughout the colonies.

1773

TEA  ACT -  of 1773, (May 10th) which actually lowered the tax on tea imported to the colonies, but reasserted the  right  of  Parliament  to  tax  the  colonists,  was resisted everywhere. It gave the British East India Company a virtual monopoly on tea trade in the American colonies.

BOSTON  TEA  PARTY -  (Dec. 16th) a raid by colonists masquerading as Indians who boarded British ships in Boston Harbor and threw the tea overboard.  Sam Adams and Paul Revere were participants!

1774

THE  INTOLERABLE (Coercive) ACTS -  were the British response to the Boston Tea Party.  When put together they closed Boston harbor to all trade.  They also revoked the Massachusetts charter  and established military government (Massachusetts Government Act) in the colony. Not only was military government established, severe restrictions were put on town meetings.

- The Quebec Act -  placed  the  area between Ohio and  the  Mississippi under  the                                       jurisdiction of the province of Quebec (Canada).

- The Administration of Justice Act effectively makes British officials immune from                                           prosecution.

September 5: THE FIRST CONTINENTAL CONGRESS -  twelve of the thirteen colonies sent representatives to a meeting in Philadelphia to decide on the best response to the actions of the British government.  Its members agreed to impose  their  own  ban  on  trade  with  Great Britain  in an attempt to force the British government to change its policies toward the colonies. It also sent a list of grievances to king George III.

The British government considered the decision to be an act of irresponsible  defiance of authority and ordered its troops to  arrest some leading colonists in Massachusetts. This response resulted in more defiance.

By this time many of the more radical colonists, especially in New England, were beginning  to  prepare for war against Great Britain. They believed it was their right to overthrow any government that no longer protected their rights. The colonists formed civilian armies made up of   minutemen,   so called because of their pride in how quickly they could be ready to fight off the British attack that everyone expected.

1775

NEW ENGLAND RESTRAINING ACT – bans trade between the New England colonies and any other nation besides Great Britain.

April 19: BATTLES OF LEXINGTON AND CONCORD -  British troops tried to march to Concord Massachusetts, where they heard that the Minutemen had hidden arms and ammunition.

-   But the colonists learned what was happening.  Paul  Revere , Samuel Prescott and William Dawes rode through the countryside warning the people that the British were  about to attack.  Actually, Paul Revere was captured by a British patrol, but his two companions, William Dawes and Samuel Prescott escaped.  Prescott went on to complete the  mission.

-   On that day, at the towns of Lexington and Concord, war broke out between the colonies and Great Britain  –  “ the shot heard around the world” had been fired.

May 10: SECOND CONTINENTAL CONGRESS -  Representatives from the colonies meet again in Philadelphia and decided to continue to resist.

June 10: Continental army created.

June 15:  George Washington  was chosen to be commander-in-chief of the Continental            army.

June 17: Battle of Bunker Hill.

OLIVE BRANCH PETITION -  Congress attempts reconciliation with King George III; the king rejects the petition and declares the colonies in outright rebellion.

-   Congress creates a navy and authorizes privateering (using/paying private ships and boats to act like a navy).

1776

COMMON SENSE:  published by Thomas Paine.  It was a  persuasive justification for revolution.

-   Congress asked a committee to draft a document that would explain to the world why the colonists were revolting.  On that committee were: John Adams, Ben Franklin, and Thomas Jefferson.

July 4: DECLARATION OF INDEPENDENCE – Thomas Jefferson drafted (wrote) the document with the assistance of the other members of the committee.  It has become known as one of the most eloquent and powerful documents explaining what government ought to be about.  It is a forceful case for the cause of freedom. In it the natural rights philosophy speaks loud and clear.

In a speech before the Continental Congress (June 7, 1776), Richard Henry Lee said:

“Let this happy day give birth to an American republic. Let her arise, not to devastate

and to conquer, but to reestablish the reign of peace and law.  The eyes of Europe

are fixed upon us: she demands of us a living example of freedom, that may exhibit

a contrast in the felicity of the citizen to the ever-increasing tyranny which desolates her                                  polluted shores. She invites us to prepare an asylum, where the unhappy may find

solace, and the persecuted repose….”

TEXT BOOK READING  pages 34 – 43.

TOPIC  NINE:     WHAT BASIC IDEAS ABOUT GOVERNMENT ARE CONTAINED IN THE DECLARATION OF INDEPENDENCE?

Purpose: You should be able to explain the main arguments contained in the Declaration of Independence. You should also be able to cite evidence of opposition to slavery in the early years of the United State’s history. Finally ,you should recognize that a contradiction exists between the ideals expressed in the Declaration of Independence and the attempt to carry out those ideals.

ORIGINAL DRAFT – Jefferson’s first draft included a powerful denunciation of slavery. Slaves are “MEN,” partake of “human nature,” and possess the “same sacred rights of life and liberty” as others:

“[The  king of Britain] has waged war against human nature  itself,  violating its most sacred rights of life and liberty in

the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere

… Determined to keep open a market where MEN should be bought and sold, he has prostituted his negative for suppressing

every legislative attempt to prohibit or to restrain this execrable commerce….”

This section was edited out of the final draft because some southern representatives at the congress made it clear that their colonies would not join the independence effort if ending slavery was part of the agenda.  Not because they felt that slavery was right and moral, but because they knew that having every colony on board was their only hope at winning the war.  In a sense they both put slavery on the political agenda and put it off to be dealt with later at the same time.

For the first time, in a significant way, slavery was on the agenda. It was seriously being debated. However, in the debate it was agreed to put a final decision off until after the war was over. The agreement was to focus on winning the battle at hand; the conflict with Great Britain.

Even though it may seem like the truth and what was right, concerning slavery, was not being resolved; seeds were planted.  Some action did result. The following is a list of things that did take place. It includes facts. It includes things said. And it includes things done.  When viewed with a big picture in mind, it is clear that what was both true and right was beginning to win the day.  Slavery was being put on the path to elimination in North America.  The Great Awakening created the moral climate for the Declaration of Independence to be what it needed to be; political dynamite.

OTHER IMPORTANT FACTS AND QUOTES CONCERNING SLAVERY

1. In 1776 slavery was legal in every state in America. Yet by 1787, when the Constitution was written, slavery was well on its way to abolition throughout the North.

2. This was not an automatic process. In most states abolition was delayed for years because of intense opposition of slaveholders.

3. Wherever slavery was abolished, it was due above all to America’s revolutionary dedication to the idea of human equality announced in the Declaration of Independence.

4. From the start of the quarrel with Britain in the 1760′s, some Americans had seen the contradiction between the true principles of government (equal/natural rights) and the deplorable fact of slavery. James Otis of Massachusetts said in 1764: “The colonists are by the law of nature freeborn, as indeed all men are, white or black.”

5. More frequently than secular writers, Revolutionary preachers frequently spoke out against holding slaves because “The Deity hath bestowed upon them and us the same natural rights as men.”  (Rev. Samuel Stillman)

6. Benjamin Franklin, speaking as president of the Pennsylvania Society of Promoting the Abolition of Slavery said: “Slavery is … an atrocious debasement of human nature.”

7. John Adams said: “Every measure of prudence, therefore, ought to be assumed for the eventual total extirpation of slavery from the United States … I have, through my whole life, held the practice of slavery in … abhorrence.”

8. In a letter to Robert Morris, George Washington wrote: “There is not a man living who wishes more sincerely than I do, to see a plan adopted for the abolition of [slavery].

9. James Madison, at the Constitutional Convention, said: “We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man.”

10. In Federalist 54, Madison stated that southern laws, not nature, have “degraded [the slaves] from the human rank,” depriving them of “rights,” including the right to vote. It was a “barbarous policy,” Madison acknowledged, to view blacks “in the unnatural light of property” rather than as persons entitled to the same rights as other men.

11. Ordinary Americans also spoke out. When Massachusetts rejected its proposed constitution of 1778, several towns singled out the provision that would have deprived free blacks of the right to vote as the reason for their opposition. For example, the town of Westminster said this clause,   ” deprived a part of the human race of their natural rights, merely on account of their color – which in our opinion no power on earth has a just right to do: therefore, it ought to be expunged from the constitution.”

12. The demand for abolition grew in the same proportion as the Americans’ growing awareness that the rights of human nature (all men) not the rights of Englishmen, were the real basis of their opposition to Great Britain.

Other examples -

1. The pamphlets of the Revolutionary era speak frequently of the injustice of slavery from the point of view of the rights of humanity (natural rights). This was especially true in the northern and middle states.

- John Jay: ” That men should pray and fight for their own freedom and yet keep others in slavery is certainly acting a very inconsistent as well as unjust and perhaps   impious part.”

2. In 1787, residents of two Virginia counties asked the state legislature to abolish slavery.

3. In a 1774 petition to the legislature of Massachusetts, one group of slaves said: “[We] have in common with all other men a natural right to our freedoms…” (*** a first in history!)

4. Delegates to the First Continental Congress in 1774 pledged to stop the importation of slaves into America.

5. Vermont’s 1777 constitution abolished slavery outright.

6. In 1779 Pennsylvania passed a law for gradual emancipation.

7. Slavery was abolished in Massachusetts and New Hampshire through a series of court decisions in the 1780′s which held that the state bill of rights, affirming that “all men are born free and equal,”  made slavery unconstitutional.

8. Rhode Island and Connecticut passed gradual abolition laws in 1783 and 1784. New York and New Jersey did the same in 1799 and 1804.

9. Congress in 1787 forbad slavery in the Northwest Territories: the future states of Ohio, Indiana, Michigan, Illinois, and Wisconsin.

10. Although no southern state abolished slavery, there was substantial anti-slavery sentiment, particularly in the upper South. Proposals for abolition were presented to the Virginia legislature in 1778 and again in 1796.

11. Societies for abolition were established in Delaware and Maryland, where the legislatures debated abolition in 1785 -86.

12. Southern courts of law, prior to 1840, generally took the position that slavery violates the natural rights of the blacks: slavery may be legal, but is not just. The Mississippi Supreme Court stated this in 1818:

“Slavery is condemned by reason and the laws of nature. It exists and can only exist, through municipal regulations, and in matters of doubt,… courts must lean in favorem vitae et libertatis [in favor of life and liberty].”

13. The same court said in 1820 that the slave “is still a human being, and possesses all those rights, of which he is not deprived by the positive provisions of the law.”

14. The courts of all other southern states of which there are records, in the early years of the 19th century, agreed with this presumption of freedom. Slaves whose masters took them to free states or territories were able to win their freedom in this way.

15. In the infamous Dred Scott case in 1857, the Supreme Court declared that blacks had never been citizens of the United States.  In fact, free Blacks were not only citizens but voted in most northern states and in Virginia, north Carolina, and South Carolina.

16. In New Jersey, women, including black women, had the right to vote for 30 years after 1776.

17. Prior to the Revolution, political opposition to slavery was slight. The political demand for abolition grew in the same proportion as the Americans’ growing awareness that the rights of human nature, not the rights of Englishmen, were the real ground of their opposition to Britain.

18.  Henry David Thoreau when writing about slavery in Massachusetts said: ” The question is not whether you or your grandfather, seventy years ago, did not enter into an agreement to serve the devil, and that service is not accordingly now due; but whether you will not now, for once and at last, serve God, – in spite of your own past recreancy, or that of your ancestor, -  by obeying that eternal and only just constitution, which He, and not any Jefferson or Adams, has written in your being….What is wanted is men, not of policy, but of probity – who recognize a higher law than the Constitution, or the decision of the majority. The fate of the country does not depend on how you vote at the polls – the worst man is as strong as the best at that game; it does not depend on what kind of paper you drop into the ballot-box once a year, but on what kind of man you drop from your chamber into the street every morning.”

19. THE GREAT AWAKENING (1720 – 1740), which appeared as a series of regional breezes, worked with and, in a sense, opened the ears of the average American to the concepts of the Declaration of Independence. The Great Awakening also served as a catalyst to the abolition movement. Unfortunately, because of its religious nature, the Great Awakening is often skimmed over and sort of watered down when covered in traditional high school textbooks.

First Great Awakening

The First Great Awakening was a religious revitalization movement that swept the American colonies in the 1730s and 1740s, leaving a permanent impact on American religion. It resulted from powerful preaching that gave listeners a sense of personal guilt and of their need of  salvation by Christ. Pulling away from ritual and ceremony, the Great Awakening made  religion intensely personal to the average person by creating a deep sense of spiritual guilt and redemption, along with introspection and a commitment to a new standard of personal morality. Historian Sydney E. Ahlstrom sees it as part of a “great international Protestant upheaval” that also created Pietism in Germany, the Evangelical Revival and Methodism in  England. It brought Christianity to the slaves and was an apocalyptic event in New England that challenged established authority. It incited rancor and division between the old  traditionalists who insisted on ritual and doctrine, and the new revivalists. Unlike the Second  Great Awakening, that began about 1800 and which reached out to the unchurched, the First Great Awakening focused on people who were already church members. It changed their rituals, their piety, and their self awareness.

The revival began with Jonathan Edwards, a well-educated theologian and Congregationalist  minister from Northampton, Massachusetts, who came fromPuritan, Calvinist roots, but emphasized the importance and power of immediate, personal religious experience. Edwards was a powerful speaker and attracted a large following. “Sinners in the Hands of an Angry  God,” is his most famous sermon. The Methodist preacher George Whitefield, visiting from  England, continued the movement, traveling across the colonies and preaching in a dramatic and emotional style, accepting everyone into his audiences. The new style of sermons and the                         way people practiced their faith breathed new life into religion in America. Participants became  passionately and emotionally involved in their religion, rather than passively listening to  intellectual discourse in a detached manner. Ministers who used this new style of preaching were generally called “new lights”, while the preachers who remained unemotional were  referred to as “old lights”. People affected by the revival began to study the Bible at home. This effectively decentralized the means of informing the public on religious manners and was akin to the individualistic trends present in Europe during the Protestant Reformation.

Historian Alan Heimert argues that Calvinism and Jonathan Edwards provided pre – Revolutionary America with a radical and democratic social and political ideology and that  evangelical religion embodied and inspired a thrust toward American nationalism.  Colonial  Calvinism was the basis for the American Great Awakening and that in turn lay at the basis of  the American Revolution. Heimert thus sees a major impact as the Great Awakening influenced the radical American nationalism that prompted the Revolution. Awakening preachers sought to review God’s covenant with America and to repudiate the materialistic, acquisitive, corrupt world of an affluent colonial society. The source of this corruption lay in England, and severance of the ties with the mother country would result in a rededication of America to the making of God’s Kingdom.

THE MAIN ARGUMENTS OF THE DECLARATION OF INDEPENDENCE

You must know these:

1.  THE RIGHTS OF THE PEOPLE ARE BASED ON NATURAL LAW WHICH IS A   HIGHER  LAW  THAN LAWS MADE BY MEN.

2.  NEITHER CONSTITUTIONS NOR GOVERNMENTS CAN VIOLATE THE HIGHER LAW OF NATURE’S GOD. [Jefferson - "...laws of nature and nature's God..."]

3.  IF A GOVERNMENT VIOLATES THE LAW AND DEPRIVES THE PEOPLE OF THEIR NATURAL RIGHTS, SUCH AS LIFE OR LIBERTY,  THEY HAVE A RIGHT TO CHANGE OR ABOLISH IT AND FORM A NEW GOVERNMENT.

4.  A COMPACT OR AGREEMENT EXISTED BETWEEN THE COLONISTS AND THE KING.

5.  BY THE TERMS OF THIS COMPACT,  THE COLONISTS CONSENTED TO BE GOVERNED BY THE KING SO LONG AS HE PROTECTED THEIR RIGHTS TO LIFE, LIBERTY, AND PROPERTY.

6.  SINCE THERE WAS NO COMPACT BETWEEN THE COLONISTS AND PARLIAMENT THAT GAVE PARLIAMENT THE RIGHT TO PARTICIPATE IN THEIR GOVERNMENTS,  PARLIAMENT HAD NO RIGHT TO TAX THE COLONIES. This was especially true, argued the colonists, since they did not have the right to send representatives to Parliament.

7.  THE KING HAD VIOLATED THE COMPACT BY REPEATEDLY ACTING WITH PARLIAMENT TO DEPRIVE THE COLONISTS OF THE RIGHTS HE WAS SUPPOSE TO PROTECT.

8.  THEREFORE, THE COLONISTS HAD THE RIGHT TO WITHDRAW  THEIR CONSENT TO BE GOVERNED BY HIM AND TO ESTABLISH THEIR OWN GOVERNMENT.

A  MODERN  SCHOLAR’s THOUGHTS:

A word from Claremont Institute scholar Dr. Henry Jaffa of the Claremont Institute explains why it is reasonable as well as in our own long term interest to be good. He points out that these ideas have a powerful past dating, in many ways, back to the Greeks. He also reminds us that some of the most important ideas of our Founding are under intellectual attack. See if you can follow his thinking. He is considered one of the best scholars on the American Founding. When he says rule of law think of natural law.

“Socrates is challenged to prove that it is better to be the victim of a tyrant than to be a tyrant.  The conclusion, of course, is that it is better to be neither.   …   The rule of law – of reason unaffected by passion, according to Aristotle – compels us to pursue our own interest only by rational means, that is to say, by means consistent with the equal rights of others.  By preventing us from injuring others, the law makes it possible for us to have others as friends.  In acting consistently with the rights of others and in not injuring others, we are habituated to  virtue.  By becoming good, we are enabled to be friends of the good, and having good friends is            the most indispensable of the means to happiness.  The tyrant, subjecting others, cannot be a friend.  Although surrounded by others pretending to be his friend, he is without friends.  But without friends, life is not worth living.  Once we understand this, upon which our well-being depends, we understand our interest in the rule of law.  We understand as well why it is against our interest to become tyrants as why it is in our interest to prevent tyrants from ruling us.  That is the argument of Plato as well as Aristotle.  It is the argument of the American Revolution, the Declaration of Independence, and the Gettysburg Address.  Yet it is an argument held in almost no esteem today.  How is that possible?  The answer is that in our  time, truth has been disarmed by the opinion that reason is impotent to know what is just or unjust, right or wrong, true or false.  …”

Part of the reason you are in this class is to connect you to information, such as this from Dr. Henry Jaffa, that will cause you to think hard; to use your reason.  Hopefully you will  see that there are some really good and powerful ideas, and truths we can embrace and internalize. Stuff from our founding that can help us as we journey along this experience called life. The research shows you will be more fulfilled if you do.

THE COSTS of the WAR (estimates):

1.  United States:  Population (2,148,100 est. in 1770)  Over the course of eight years roughly  231,771 men served in the Continental army and 164,087 in the various state militias; however, rarely did any more than 20,000 men serve at any one time in the armed forces of the U.S.  In 1778 the forces reached their        greatest strength with approximately 35,000 in the field. Casualties  (4,435 died in battle;  6,188 wounded but survived).

2.  Great Britain: Population (11,000,000)  Standing army worldwide (about 42,000 at the outset of the war).

Text Book Reading: Read, again,  the Declaration of Independence pages 40 – 43.

TOPIC  TEN:   WHAT BASIC IDEAS ABOUT GOVERNMENT WERE INCLUDED IN THE STATE CONSTITUTIONS?

Purpose:  When you complete this lesson, you should be able to explain how the basic ideas about government you have studied were included in the state constitutions.  You should also be able to explain the major difference in the way the Massachusetts Constitution was designed to protect rights from the way the constitutions of the other states were designed to protect individual rights. To do so, you will need to know the following ideas: popular sovereignty, representative government, and legislative supremacy.

INTRODUCTION

In May,1776, the Continental Congress passed a resolution to the effect that all royal authority should be suppressed or extinguished, “that all the powers of government should be exerted under the authority of the people,…”

Conditions in the country were hardly conducive to elaborate constitutional proceedings and calm and lengthy deliberations about the nature of government and what precise forms and substance should be provided in such documents.  A Continental Army under the command of General Washington had long since taken to the field.  Some of the governments in operation already were little more than revolutionary committees.  They were not only contending with Britain but with royal governors, and with a considerable number of Americans who remained loyal to the crown (especially in Pennsylvania).

Even so, most of the former colonies did go forward with constitution making in 1776-1777. Two states had adopted brief constitutions before Congress sent out its resolution: New Hampshire in January,1776 and South Carolina in March. Two states – Rhode Island and Connecticut – had charters of long standing approved by their inhabitants, and they continued to use them until well into the 19th century. During the remainder of 1776 and part of 1777, all other states except Massachusetts adopted constitutions. These states went through no extraordinary procedures for drafting and adoption of a constitution. New Jersey, Virginia, and South Carolina did not even hold special elections for the purpose. The revolutionary legislatures simply drafted and adopted their constitutions. None of the states acting 1776 and 1777 submitted their work to the people for approval; rather, they merely proclaimed the new constitutions in effect.

Massachusetts followed a different course, one that would serve more of a pattern for later constitution makers. They clearly traced the constitution from the people and received their approval of the final document.

SIX BASIC IDEAS INCLUDED IN STATE CONSTITUTIONS

1.   HIGHER LAW  and  NATURAL RIGHTS  -  Every state constitution was considered a higher law that must be obeyed by the persons running the government.  Each contained the idea that the purpose of government was to preserve and protect citizen’s natural rights to life, liberty, and property.

Virginia Bill of Rights (drawn by George Mason) – adopted by a Virginia Convention in June, 1776, about three weeks before the Declaration of Independence. Undoubtedly, Jefferson was influenced by it.  “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.”

The Massachusetts Bill of Rights, drawn mainly by John Adams and adopted in 1780 -  Article I. “All men are born free and equal, and have certain natural, essential. and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness,”

2.  SOCIAL  CONTRACT  -  Each state constitution also made it clear that its government was formed as a result of a social contract — an agreement among its people to create a government to protect their natural rights.

The Social Contract (Social Compact) theory was clearly stated in the Massachusetts constitution: “The body politic is formed by a voluntary association of individuals; it is a social compact, by which the whole people covenants with each citizen, and each with the whole people that all shall be governed by certain laws for the common good….The people alone have an incontestable, unalienable, and indefeasible right to institute government, and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require.”

3.  POPULAR  SOVEREIGNTY  -  All of the state constitutions contained the idea of popular sovereignty — that the people are the source of the authority of the government. [sovereign = power,  popular = people: sort of -- the power must be popular]

Several states did not make provision for amending their constitutions; others like Massachusetts did.  When regular elections, popular approval, and power to amend was provided by a constitution, the occasion for revolt against a legal government had been removed. In other words, if there is a way to make things right, people are less likely to revolt.

4. REPRESENTATION and the RIGHT to VOTE  -  One of the most significant things about each state constitution was the importance placed upon representation  of the people in their governments.  All of the state constitutions created  legislatures  that were composed of  elected  representatives  of  the people.

In most states, the right to vote was limited to males who owned a specific amount of property.  However,  because it was relatively easy to acquire property in the colonies, this limit did not eliminate as many people as it did in Great Britain.  [70% in the U.S. vs. 10% in Great Britain]

In  seven  states, free blacks and Indians could vote.  In New Jersey, the vote was given to “all inhabitants…of full age, who were worth fifty pounds” and who met a twelve-month residency requirement. Under these rules, both  women  and  free blacks   were able to vote until 1807 when the law was rewritten to exclude women.  The other twelve states specifically denied women the right to vote by inserting the word “male” into their constitutions.

5.  LEGISLATIVE  SUPREMACY*  -  While all of the state constitutions included checks and balances and the separation of powers, most [not Massachusetts] of them relied on a strong legislature to protect the rights of the citizens.  Legislative  supremacy  means  a government in which most of the power is given to the legislature. WHY? –

A. The legislative branch  of government, composed of representatives elected by the voters who can be removed by the voters, is the most democratic and safest branch of government.

B.  The  executive  branch  should not be trusted with too much power because it is not easily controlled by the people. [remember king/problems]

C.  The colonists had also had some difficulty with the  judicial  branch,  the king’s magistrates, who tried colonists for breaking British law.  However, the power of this branch was limited by the colonists right to a trial by jury of their peers (colonists).  These juries often refused to find them guilty of breaking a law with which they did not agree.

Evidence of this includes the following: [1] many legislatures were given the power to select the governor, and control his salary. [2]. Most governors were allowed to stay in office for only one year. [3] Appointments by the governor almost always had to be approved by the legislature. [4] Governors were almost completely excluded from the legislative process. Only Massachusetts gave their governor “veto” power.

* (The problem with Legislative Supremacy is that it can lead to a situation where the majority tramples on the rights of the minority. This is what some call “mobocracy” [mob = majority rule]).

6.  CHECKS  and  BALANCES  -  Although the powers in the state governments were unevenly balanced in favor of strong legislatures, there were some checks in the state constitutions.  However, most of these checks existed within the legislatures themselves.  For example, in every state except Pennsylvania and Georgia, the legislature was divided into two houses, just as in the British Parliament.  Since most important decisions had to be approved both houses, each had a way to check the power of the other house.  Unlike Parliament, and unlike the colonial governments,  both houses were elected by the people.  The voters could check their power by electing new representatives to both houses if they did not like the way the government was working.

You may remember that in Parliament, the House of Lords and the House of Commons were designed to represent different classes of people in the British society.  This gave each class a way to check the power of the other class. Some states tried to organize their legislatures the same way. Only people with a great deal of property could elect representatives to the upper house, while people with less property elected representatives to the lower house.

THE MASSACHUSETTS CONSTITUTION

In 1780, Massachusetts became the last state to ratify its constitution. Written principally by John Adams, it was different from those of the other states. In addition to relying upon representation as a means of preventing the abuse of power, it also relied upon the traditional methods of separation of powers and checks and balances.  It gave the other branches of government more effective checks on the powers of the state legislature than did the other state constitutions.  In this way, it contained more similarities to the British government [and our current government] than did the constitutions of the other states.

Perhaps one of the most important reasons the Massachusetts constitution was different was that during the time it was being developed, problems arose in the states where legislatures had been given so much power.  [These problems will be looked at more in the next lesson: topic eleven.]

Since the Massachusetts constitution is more similar to the present Constitution of the United States than are the other state constitutions, it is worth looking at in some detail.

A STRONG EXECUTIVE BRANCH  -  Under the Massachusetts constitution,  the governor was elected by the people.  The writers of its constitution believed that because he would be elected by the people, it would be safe to trust him with greater power so that he would be able to protect their rights and welfare.

A.  The governor’s salary was fixed and could not be changed by the legislature.

B.  The governor had the power to veto laws made by the legislature, and his veto could only be overridden by a two-thirds vote of the legislature.

C.  The governor could appoint officials to work in the executive branch and judges to the judicial branch with little interference from the legislature.

REPRESENTATION OF DIFFERENT GROUPS IN THE SOCIETY – the Massachusetts Constitution divided the people of the state into groups based upon their wealth.

A.  Only people with large amounts of property could vote to elect the governor.

B.  People with slightly less property could elect members of the upper house of the state legislature.

C.  People with the minimum amount of property that enabled them to vote, could vote for members of the lower house.

KEY DIFFERENCES FROM THE OTHER STATES -  The Massachusetts constitution provided for a more even balance among the powers of the different branches of government.  It did not make the legislature the most powerful branch as it was in the other states. This difference reveals different beliefs about the best ways to prevent the abuse of power by members of government.

A.  The constitutions of the other states were based on the idea that representation of the people in a strong state legislature was the best way to protect their rights.

B.  The Massachusetts constitution was based on the idea that representation,  separation of powers,  checks and balances  were all essential for the protection of the rights of the people.

In short, the Massachusetts constitution was more balanced in how it distributed power. Our current national constitution is much more similar to the constitution of Massachusetts than any of  the other state constitutions.

TOPIC   ELEVEN:       WHY DID THE FOUNDERS WANT TO CHANGE THE ARTICLES OF CONFEDERATION? (1781)

When you are done with this lesson you should be able to explain why the newly independent Americans created their first constitution, the Articles of Confederation as they did.  You should also be able to explain the problems of the government under the Articles of Confederation.

INTRODUCTION

The United States of America has had two constitutions: the first was the Articles of Confederation; the second was the Constitution of 1787, which is still in effect today.  The Articles were the direct result of a resolution passed by the Continental Congress on June 17, 1776, approximately three weeks before the Declaration of Independence, providing for a committee to draw up an instrument for uniting the colonies in a confederation. John Dickinson undertook to provide a draft of such a plan.  Ben Franklin had also submitted his Albany Plan with some changes, and it had some influence on Dickinson’s work. The committee submitted a plan that was mainly the work of Dickinson the next year, and after making some changes, Congress approved the Articles on November 15, 1877. It was then submitted to the states for ratification, and all the states but Maryland approved it in 1778 and 1779.

MARYLAND’S OBJECTION – Although there was much that might have been questioned about the Articles, Maryland’s major objection was that several states laid claims to territory in the west that might go as far as the western boundaries of the United States might extend.  These states would dwarf such states as Maryland, which was confined largely to the east coast. The main states involved were New York and Virginia: when they yielded on the western question, Maryland signed, and the Articles were ratified and in full effect March 1, 1781. The Articles served as a constitution of the United States for less than eight years.

The Americans who were struggling to break free from the domination of the powerful, centralized authority of King George and Parliament were not disposed to erect their own version of a strong central government. The Articles of Confederation amounted to little more than a “league of friendship” — certainly not a national government.

THE CREATION OF THE “ARTICLES OF CONFEDERATION” -  Key Points:

1. In 1776, a committee appointed by the Congress and led by John Dickinson, of Pennsylvania, wrote a            draft of a constitution for the first national government.

2.  Members of the Congress argued on and off for more than a year before they came up with a constitution they could agree to present to the states for approval.

3.  The states argued for more than four years before all of them approved it.

4.  Two major fears made it difficult for the Founders to agree upon the Articles of Confederation.

(These are general fears — not specific objections, such as the state of Maryland had).

A.  the fear of creating a national government that was too strong.

B.  the fear that some states would have more power than others in the national government.

5.  The solution was to create a weak national government and give each state one vote.

THE ARTICLES OF CONFEDERATION -   Key Provisions:

1.  Made no provision for an executive branch and authorized only a few specialized courts.

2.  All the major functions of the confederation government were concentrated in a single (unicameral) legislature.

3.  Each state was given one vote;  legislation required the vote of nine states.

(Since large majorities were difficult to come by, the Congress under the Articles was often deadlocked, unable to act at all).

4.  Ultimately, the question came down to the issue of sovereignty. The states wished to retain nearly complete sovereignty, leaving Congress an ineffectual body.

5.  Short of revenue, often deadlocked, the confederation government lurched along from 1781 to 1786.

KEY PROBLEMS WITH THE ARTICLES OF CONFEDERATION

1. No money and no power to get it.

Congress had to rely upon voluntary contributions from the state governments to pay for the costs of the national government. It had no power to force the states to live up to their promises to make the contributions.

This system did not work. the states had promised to give the national government $10 million to pay for the costs of fighting the Revolutionary War. They only paid $1.5 million. Congress had borrowed most of the money it needed to pay for the war by selling revenue bonds to Americans and foreigners, and it had no way to pay its debts. The state governments and many of the people living in the states were also deeply in debt after the war.

2.  No power over the state governments and their citizens.

Congress did not have the power to make laws regulating the behavior of citizens or the states to force state governments or their citizens to do anything.  The Articles clearly stated that each state kept its “sovereignty, freedom, and independence.”

Not all of the colonists had been in favor of the Revolutionary War; some had remained loyal to Great Britain. Thousands of these people, called loyalists, still lived in the United States. When the war was over, the national government signed a peace treaty with Great Britain called the Treaty of Paris, which was intended in part to protect loyalists’ rights and ensure that they were treated fairly. Some of these loyalists owned property in the states and some had loaned money to other citizens.

Some state governments refused to respect this treaty. They often made it difficult for loyalists             to collect the money owed to them by other citizens. Some states had confiscated the loyalists’ property during the war. The national government was powerless to live up to its promise to the British government to protect the rights of these citizens.

3.  Unenforceable trade agreements

Although Congress had the power to make agreements (treaties) with foreign nations, it did not have the power to make states live up to these agreements. This raised another difficulty. Some citizens imported goods from other nations and then refused to pay for them.  Not surprisingly, people in foreign countries became reluctant to trade with people in the United States.  Great Britain closed the West Indies to American commerce.

Without a strong national identity, American diplomats found it difficult to secure treaties — let alone enforce them. American shipping was prey to pirates and to harsh tariffs levied by other countries.  The British and Spanish harassed the borders of the American territories with impunity. As a result, many Americans lost money because they were unable to sell their goods to people in other nations. Others were not able to buy goods from abroad.

4.  Unfair competition among the states

Even though The government under the Articles was suppose to have the power to settle disputes between states, they really couldn’t. Whatever decisions they might agree to, they didn’t have the power to enforce them. The result was unfair competition among the states.  Some state governments passed laws forbidding the sale of goods from other states. Such activities prevented efficient and productive trade among the states and caused serious  economic problems for the country. Businesses, that thrived on inter-state trade, failed, and many  people became poverty-stricken and unable to repay money they had borrowed from other citizens. This  caused another serious problem.

Connecticut traded openly with Great Britain (other states refused) yet put import duties on goods from Massachusetts.  Pennsylvania discriminated against Delaware, and New Jersey, pillaged at once by both her greater neighbors, was compared to a cask tapped at both ends.

5.  Threats to citizens’ right to property

Most state governments were controlled by the legislative branch, composed of representatives elected by a majority of the people. A faction is a group of people that seeks to promote its own interests. During this period, a number of factions developed that sometimes formed majorities in the state legislatures.  These majorities were accused of making laws that benefited themselves at the expense of the minority and of  the common welfare.  For example, they passed laws that canceled debts, confiscated the property of  loyalists, and created paper money resulting in inflation which benefited the debtors at the expense of           those to whom they owed money.

People who were being hurt by such laws argued that their property was not being protected by their state governments.

Some people argued that there was too much democracy in the state governments. They claimed that representative government with majority rule did not adequately protect the natural rights of individual citizens, minorities,  or the common welfare. They argued that majority rule, when the majority pursued its own selfish interests at the expense of the rights of others, was just another form of tyranny, every bit as dangerous as that of an uncontrolled king.

TROUBLE

The country was in deep financial trouble. Unable to tax, Congress resorted to printing large amounts of paper money to finance the war, and the government afterwards. However, these inflated “Continentals” were soon considered worthless. Other financial schemes fell through, and only grants and loans from France and the Netherlands staved off complete financial collapse. A plan to amend the Articles to Congress power to tax failed. Rhode Island led the opposition. The army, whose pay was far in arrears, threatened mutiny. Some of those who favored a stronger national government welcomed this development and in what became known as the Newburgh Conspiracy (1783) consulted with army second-in-command Horatio Gates as to the possibility of using the army to force the states to surrender more power to the central government.  This movement was stopped by a moving appeal to the officers by Washington himself.

For many Americans the enormous frontier represented an opportunity to escape the economic hard times that followed the end of the war.

In 1775, Daniel Boone opened the “Wilderness Road” through the Cumberland Gap and on to the “Bluegrass” region of Kentucky. Others scouted down the Ohio River from Pittsburgh.  By 1790, over 100,000 had settled in Kentucky and Tennessee, despite the risk of violent death at the hands of Indians. The risk was made worse by the presence of the British in northwestern military posts that should have been evacuated at the end of the war. From these posts they supplied the Indians with guns and encouraged them to use them on Americans.  The Spaniards on the Florida frontier behaved in much the same way.

The settlement of Kentucky and Tennessee increased the pressure for opening of the lands of the Ohio River. To facilitate this Congress (under the Articles) passed three land ordinances.

[1]  The Land Ordinance of 1784 provided for territorial government and an orderly system by which each territory could progress to full statehood (this ordinance is sometimes considered part of the Land Ordinance of 1785).

[2]  The Land Ordinance of 1785 provided for orderly surveying and distribution of land in townships six miles square, each composed of thirty-six one-square mile (640) acre) sections, of which one should be set aside for the support of education. This ordinance is sometimes referred to as the “Northwest ordinance of 1785”)>

[3]  The Northwest Ordinance of 1787 provided a bill of rights for settlers and forbade slavery north of the Ohio River.

These ordinances were probably the most important legislation of the Articles of Confederation government. They were part of the very few items that could get the necessary support to become law.

SHAY’S REBELLION – THE LAST STRAW

The last straw came in November, 1786,  when a Massachusetts farmer named Daniel Shays led an armed band of farmers and debtors, closing down courts in the central and western parts of the state. (They also tried to capture the arsenal at Springfield, where arms were kept for the state militia). Shays then threatened to march on Boston if the state legislature did not pass a bill inflating currency. Though the rebellion was quickly and efficiently put down, the news reports exaggerated the size and extent of the disturbance.

Key Points:

1.  Farmers in Massachusetts had serious economic problems.   When they could not pay their debts, many lost their homes and farms.  Some were even put into prison.

2.  Shays’ Rebellion frightened many people who feared similar problems might arise in their states.

3.  More and more people began to be convinced that the national government needed to strengthened.

4. George Washington was one of those people.  He wrote to James Madison, “We are either a united  people or we are not. If the former, let us act as a nation. If we are not, let us no longer act a farce by pretending to it.”

A  MISSED LAST CHANCE?

In January of 1887 New York rejects a plan for Congress to tax imports.  This was the final straw.  The national government was hopelessly bankrupt. Had New York supported this import tax the government may have been able to succeed, at least for awhile.

Henry Knox [future Secretary of War in Washington's Administration] wrote a letter  to  George Washington in which he exaggerated The situation with Shay’s rebellion.  He claimed, in the letter,  that  Shay was training 10 to 12,000 men to overrun the government.

TEXT BOOK READING:  pages 44 – 47 and 793 – 796.

UNIT THREE: “THE CONSTITUTION”

Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place. Claude Frederic Bastiat, “The Law”

Every child in America should be acquainted with his own country.

He should read books that furnish him with ideas that will be useful

to him in life and practice. As soon as he opens his lips, he should

rehearse the history of his own country.

–Noah Webster, On the Education of Youth in America, 1788

You have studied the philosophical and historical influences on the Framers of our Constitution.  This unit will provide you with an understanding of how they wrote the Constitution and some of the most important debates they had over its development and ratification.

When you have completed this unit, you should be able to explain how the Constitution was developed, how it organizes our government, some of the basic debates that occurred during its development, and the positions of the Federalists and Anti-Federalists in the struggle over the ratification of the Constitution.

MIRACLE AT PHILADELPHIA – AN INTRODUCTION

The men who gathered in the Pennsylvania State House at the end of May 1787 were a remarkable collection of statesmen by anyone’s standards. A few, such as Ben Franklin and George Washington, were already legendary figures. Others, including John Dickinson and Roger Sherman, had been at the center of the fight for independence and the creation of the new republic, contributing their intelligence and foresight every step of the way. Some like Governor Morris, were only at the beginning of their ascent to prominence; they were to leave the indelible imprint of their genius on the Philadelphia convention. Even the titans of political philosophy, John Adams and Thomas Jefferson, were serving as ambassadors that summer (in England and France respectively), were strongly present through their writings and followers.

The delegates to the Philadelphia Convention were highly educated men whose minds and characters had been tempered by the demands of war and the vicissitudes (sudden or unexpected change) of politics.  Deeply read in history and political philosophy, they preferred the “lamp of experience” as a guide rather than the abstract utopian ideas that were soon to devastate France.  Indeed, there were no liberals or conservatives at the convention, no intense and divisive ideologies. The delegates shared a broad consensus about human nature and the political forms which held out the greatest prospect of order, freedom, and justice possible to civil society.  It was precisely this consensus that enabled the delegates to compromise where necessary and yet still achieve a coherent and enduring framework of government.

AMERICA EXPERIENCED  A TRUE REVOLUTION

The American Revolution was not a revolution in the sense that life on main street remained pretty much the same. However, it was a huge revolution in the sense that power was now based on the masses [the people]. There was a paradigm shift. Legitimate power was no longer seen as coming from an authority from on high [a king or aristocracy] but from below — the people. Legitimate power was based on the consent of the people, and rooted in NATURAL RIGHTS. This paradigm shift did not happen in the French or Russian Revolutions. This thinking shift is reflected in the new government we set up. Nevertheless, it was not a smooth road.

The single most contentious issue at the convention concerned the nature of federalism, or the problem of how to divide sovereignty between the states and the national government. Federalists supported a stronger national government; they were opposed by advocates of state’s rights, the Anti-Federalists.  The smaller states also feared domination by the larger states.

And yet, in the middle of Philadelphia’s hot summer, the so-called Great Compromise saved the convention from breakdown and failure.  The answer was a bicameral [two house] legislature, with a Senate containing two representatives from each state, and a House of Representatives in which the number of seats was apportioned according to population. The existence of the Senate helped to assuage [calm] the fears of the smaller states, while the House gave the populations of the larger states their due weight.

The only source of political legitimacy, the Constitution declares at the outset, derives from “We the People.”  Without the consent of the governed, the common good cannot be served. But if the Constitution is grounded in the will of the people, it also recognizes that pure democracy is neither practical nor desirable.  By staggering the length of terms, providing for a presidential veto and other measures, the Founders sought to check the power of factions that would seek radical change in the heat of the moment.  Above all, the Constitution requires responsible government, which its system of elections and impeachment attempts to secure.

The Constitution is, by its very nature, a charter that seeks to limit  the power of government. It is the law of the land, but law of a special kind.  The Constitution is law that applies not to private individuals but to government itself.  In making the Constitution the supreme law of the land, the Founders sought a legal, and not merely political, limitation  on  government.

The specific provisions of the Constitution limit government because they define and distribute its powers.  By enumerating, separating, and dividing power, it protects against any one branch of government dominating  the others. In the “vertical” sense, power was divided among national, state, and local governments. This is the meaning of federalism. In the “horizontal” sense, the system of overlapping functions and checks and balances divided power at the national level.

The flexibility of the Constitution derives not from any lack of principle or meaning, but from the freedom it gave the branches of government to interact with each other and adapt to changing circumstances.

As the delegates of the Philadelphia Convention went home to urge the people to ratify the Constitution, they knew that something remarkable had taken place that summer.  They had put aside narrow self-interests and preoccupations and dared to find the means by which freedom, order, and justice might be secured for future generations.

Indeed, for over 200 years the Constitution has provided the foundation on which the American people have built a prosperous and just society. While other nations have experienced violent upheavals and bloody revolutions, the Constitution of the United States has secured a remarkable degree of order.  The Constitution, grounded in timeless principles that readily take account of new circumstances, has weathered every storm — from the turbulence of industrialization to the waves of immigration that blended together in the American “melting pot,” to rise and fall of Soviet Communism.

The sole exception, it must be said, is the tragedy of the Civil War, which nearly tore the nation apart. Human sin [evil] was, and still is, the problem. It prevented the great concepts of the Declaration of Independence from being fully integrated into the Constitution.

Aside from the great evil of slavery, the Constitution has guaranteed Americans an unprecedented amount of personal freedom. Above all, the Constitution, in its very essence, protects the individual against threats to liberty coming from government itself. Though many Americans take this for granted, they often forget that the most dramatic trend in the first half of the 20th century was the relentless centralization of state power at the expense of individual liberty. The genius of the Constitution is that it divides power against itself, both through the separation of the congressional [legislative], the presidential [executive], and the judicial branches, and through the federal structure protecting the authority of the fifty [50] states.  Thus the very structure of the Constitution constrains concentration of power that threatens personal freedom.  This freedom has unleashed a surge in creative energy surpassing that of any nation in history. The American economy is still the most vibrant in the world.

Finally, the Constitution has maintained a relatively high level of justice for the American people. Principles such as equality before the law, due process, and the right of representation have protected Americans against arbitrary power. Again, though many Americans take this for granted, the trend in the 20th century had been the relentless centralization of state power combined with ideological justifications for abrogating the principles of justice. While America has not been immune to this trend, it still retains a good measure of order, freedom, and justice.

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NOTE:    African American, Harvard,  professor and sociologist Dr.  Orlando Paterson said, “The sociological truths are that America, while still flawed in its race relations … is now the least racist white-majority society in the world; has a better record of legal protection of minorities than any other society, white or black; offers more opportunities to a greater number of black persons than any other society, including all those of Africa….”

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TOPIC 12:  WHO ATTENDED THE PHILADELPHIA CONVENTION AND WHAT HAD THEY AGREED TO DO?

Purpose:  When you complete this lesson, you should be able to describe the steps leading to the calling of the Philadelphia Convention and the characteristics of the Framers who attended it.

ATTEMPTS TO SOLVE THE PROBLEMS OF THE ARTICLES OF CONFEDERATION

As a result of the problems experienced under the Articles of Confederation, a number of prominent leaders suggested holding a meeting of representatives of all of the states.  The purpose of the meeting was to discuss ways in which these problems could be solved.  James Madison of Virginia persuaded his state legislature to call for such a meeting.

In Sept., 1786, all thirteen states were invited to send representatives to a meeting in Annapolis, Maryland. Because the primary purpose was to discuss the regulation of commerce among some of the mid-Atlantic states, (the weaknesses of the Articles were also suppose to be a topic), only five states sent representatives.  Disappointed at the turnout at the meeting,  Madison and the others decided not to discuss the Articles of Confederation.  Instead,   Alexander Hamilton proposed that they write a resolution. They sent the resolution to Congress and every state legislature.  The resolution (report) asked each state to send representatives to a meeting that was to be held in Philadelphia in 1787.  The purpose of the Philadelphia  meeting was to change the Articles of Confederation in order to strengthen the national government. (To render the Articles of Confederation “adequate to the exigencies of the Union.”)

CONGRESS APPROVES A MEETING TO IMPROVE THE ARTICLES OF CONFEDERATION

At first,  Congress ignored the report.  Then, in February of 1787, Congress voted to support the meeting of the state representatives.  However, it only gave them the authority to develop a plan to improve the Articles of Confederation.  This plan was then to be sent to Congress for it to use as it wished.  As far as Congress was concerned, the men who met in Philadelphia were just advisors to Congress.

WHO ATTENDED THE PHILADELPHIA CONVENTION?

1. 74  delegates were invited,  55 attended at one time or another.

2. Most of them were fairly young.  Average age was 42,  the youngest was 26 [Jonathan Dayton of New Jersey]. Ben Franklin was the oldest at 81.

3. About 3/4  [39]  of the Framers had served in Congress.  [8 had signed the Declaration of Independence,  8 had helped write state constitutions, 7 had been chief executives of their states, and John Dickinson is given credit for being the primary writer of the Articles of Confederation].

4. Most had played important parts in the Revolution. [21 had actual combat duty in the war.]

5. Some were rich, but most were not. [Upper Middle Class].

6. 33 were lawyers, and ten of them had served or were serving as judges.

7. About 1/2 were college graduates, more from Princeton than any other institution.

8. Twelve [12] states sent delegations.  Rhode Island rejected the invitation to appoint delegates. [The absence was not considered a handicap during the convention, for that state's behavior was so universally deplored that men did not gladly seek the counsel of her citizens.]

A French diplomat in America at the time said that the Framers – “without being rich are all in easy circumstances.” Another French diplomat stationed in America observed: “If all the delegates named for the Philadelphia convention are present, one will never have seen, even in Europe, an assembly more respectable for talents, knowledge, disinterestedness, and patriotism than those who will compose it.” From Paris, Thomas Jefferson wrote to John Adams in London that the convention “really  is an assembly of demigods.”

GEORGE WASHINGTON [The presiding officer of the convention]

Probably the most respected and honored man in the country.  He has been nicknamed “the father of our Country.” During the Revolutionary War he had left his farm at Mount Vernon, Virginia, to lead the American army to victory over the British. When the war was over he returned to private life on the plantation.

Washington was one of the leading citizens who were convinced that a stronger national government was necessary.  However he expressed his opinions only in private and only to a few people, because he was not interested in getting involved in politics. Washington’s desire was to retire and enjoy life.

At first Washington refused to accept the invitation to attend the convention.  Later he agreed to be a representative from Virginia.  He agreed because he feared that if he did not attend, people might think he had lost faith in republican government.

In terms of involvement, Washington was not active in the debates (he made one brief speech towards the end of the convention),  but  his  presence and  support  of   the  Constitution  was  essential to its ratification by the states.

Governor Morris wrote to Washington, after the convention,  to describe the importance of his role:

I have observed that your name to the new

Constitution has been of infinite service.

Indeed,  I am  convinced that  if  you  had

not attended the  Convention,  and  the  same

paper had  been  handed  out to  the world,  it

would have met with a cooler reception, with

fewer and weaker advocates, and with more

and more strenuous opponents.

JAMES MADISON

Of all the Framers he probably had the greatest influence on the organization of the national government that was developed at the convention.  He has been nicknamed “the father of the Constitution.” Born in 1751, Madison was one of the youngest of the revolutionary leaders.  He became active in Virginia politics in the 1780′s and was one of the most influential leaders in favor of a stronger national government.

Madison’s influence at the convention was great, in part, because he brought with him a plan he had already developed for creating a better national government –the  Virginia Plan.  [After debate over alternatives, this plan was used as the basis for discussion about how to improve the government. Madison did most of the work on the Virginia Plan , but the actual presentation was done by Governor Randolph.]

Madison also kept the official notes of the proceedings.  They are considered to be the most reliable record of what went on at the convention.

In terms of a career, Madison later became the fourth President of the U.S.  It was during his term as president that we fought the British in the War of 1812.

Together with John Jay and Alexander Hamilton, Madison helped write a comprehensive defense of the new constitution called The  Federalist.  (Originally a series of newspaper articles written to convince the citizens of New York to vote for delegates to the state ratifying convention who were favorable to the Constitution.)

Madison was not impressive to look at; judging by his appearance it would have been easy to mistake him for a clerk.  He was quite short and thin, “Little  Jemmy” they called him, “no bigger than a half cake of soap.”  Nor was he an orator; he spoke in such a low voice that those keeping journals often missed a part of what he said.  He made up for those shortcomings, however, with intellectual acuity, sharp insight, and tenacity in the pursuit of his object.  Moreover, he prepared himself for the task at hand.  Much of his time in the months before the convention had been in reading, and mastering literature on government. A plea to Jefferson in Paris had brought a plethora of books to augment  his supply at home. We, and all of the free world, are the beneficiaries of his hard work.

OTHER IMPORTANT DELEGATES

Benjamin Franklin – was 81 [yet had a clear mind]  and in poor health [he had to carried, but because he was so well respected, his participation at crucial times contributed a great deal to the success of the Convention. His main contribution was his ability and success at getting delegates to compromise.  When the convention appeared to be nearly breaking up over the question of equal or proportional representation, Doctor Franklin said: "When a broad table is to be made, and edges of planks do not fit, the artist takes a little from both, and makes a good joint.  In like manner here both sides must part with some of their demands, in order that they may join in some accommodating proposition."

All but the briefest of his remarks were read by his fellow Pennsylvanian, James Wilson.

Governor Morris - was the most dazzling speaker in the convention.  He had been maimed both in arm and leg [stumped about on a wooden leg]. He was also considered quite a lady’s man.  Like Madison, he took care to see that what was won by his reasoning was not lost in the maneuvers over detail, yet when outvoted he yielded gracefully.

Alexander Hamilton - while one of the greatest supporters of a strong national government,  left in frustration before the convention was half over [he was not known to be very friendly],  returning for a few days and to sign the completed document in September.  However,  he was also an author of The Federalist and played a major role in the struggle over ratification of the Constitution.

George Mason – the author of the Virginia Bill of Rights, was a great champion of the rights of the people and of the states.  He believed the national government created by the Constitution threatened those rights. He was one of three delegates who refused to sign the Constitution at the close of the convention.

IMPORTANT FOUNDERS WHO DID NOT ATTEND THE CONVENTION

Thomas Jefferson – had drafted the Declaration of Independence, served as governor of Virginia, and was a member of Congress under the Articles of Confederation.  At the time of the convention he was ambassador to France and was unable to attend.

Thomas Paine – The author of Common Sense and  The Rights of Man, was with Jefferson in France.

John Adams – one of America’s most important political thinkers and the second President of the United States,  was on a diplomatic mission to England.

Patrick Henry – revolutionary leader,  refused to attend the convention because he was against the development of a strong government.  He suspected what might happen at the convention, and said that he “smelled a rat.”  He was one of the leaders who campaigned against adoption of the Constitution.

THE CONVENTION BEGINS

The convention’s original starting date was to be May 14th.  However, there was not a quorum to do business until May 25th.  It was no easy task to assemble men from the length and breadth of the United States; delegates from Georgia, for example, had a formidable distance to travel, and even an early start did not necessarily lead to a prompt arrival.  In any case promptness was better calculated in weeks than in hours.

The Virginia delegation was the first appointed by a legislature, and its members began to arrive in Philadelphia before other out-of-staters.  It was an impressive delegation.  It included:  George Washington, Edmund Randolph, George Mason, and James Madison.  (George Wythe, one of the best legal minds in America, put in an appearance but left shortly to attend to his dying wife.)  Pennsylvania’s delegation was also impressive, for it included Benjamin Franklin,  Robert Morris (who, if he was there, remained silent during the debates), Governor Morris, and James Wilson.

The New England states were the slowest in appointing delegates and the slowest to arrive.  [Rhode Island, as noted earlier, rejected the invitation to appoint delegates.]  The New Hampshire  delegates  were  exceedingly  late;   two  of  the  four  appointed  finally  arrived  on  July 23.  [They could not come earlier because the state had not provided for their expenses.]  New York appointed three delegates — Alexander Hamilton, Robert Yates, and John Lansing.  They were rather reluctant, it seems,  for Yates and Lansing withdrew after a short period of attendance and Hamilton was absent for an extended period.

With delegates from a majority of the states present the convention began on May 25th, 1787.   George Washington was unanimously  elected to be the presiding officer.

Almost immediately the Framers agreed on two things:

1. They decided to ignore the instructions they had received from Congress to  limit  their work to improving the Articles of Confederation.  Instead, they began to work on  the  development of a new constitution.  The Framers were convinced that the defects of         the Articles were so serious that it would be better not to use them as the basis for  their discussion.

2.  They decided to keep the record of what they said at the convention a secret for thirty years.  There were two reasons for this.

[1] The Framers wanted to develop the best constitution they could.  This required a free exchange of ideas.  They were afraid that if their debates were made public, many of the delegates would not feel free to express their opinions.

[2] They thought that the constitution they were developing would have a greater chance of being accepted if people did not know about the arguments that  went on while it was being created.

The Framers also agreed that although the delegation from each state varied in size, each state would have one vote at the convention.

The Framers were committed to the development of a stronger national government than the one which existed under the Articles of Confederation.  During the convention there was a great deal of agreement on fundamental principles and most of the basic issues.  As a result, the Framers were able, in less than four months, to create a constitution that has lasted for over two hundred years. It is the oldest active constitution in the world. This remarkable achievement began with a first session at which only seven of the thirteen states had delegates present.  By the end of the convention every state except Rhode Island was represented.

TOPIC 13:   HOW & WHY DID THE FRAMERS USE THE VIRGINIA PLAN TO CREATE THE NEW CONSTITUTION?

Both the Virginia and New Jersey delegates to the Philadelphia Convention submitted plans for the Framers’ consideration. After considerable debate, the Virginia Plan was used as the basis for the new Constitution. However, not all of the recommendations of the plan were accepted. An understanding of both plans and the debates over them should increase your understanding of the Constitution and the continuing debates over how our government is organized.

Purpose: when you finish this lesson, you should be able to explain the differences between the Virginia and New Jersey plans. You should also be able to explain why the Virginia Plan was used as the basis for our Constitution. Several new ideas and terms are introduced in this lesson which you should be able to explain. They are: federal system (federalism), proportional representation, and equal representation.

BACKGROUND AND SUPPLEMENTAL INFORMATION

James Madison has frequently been described as the Father of the Constitution. The Virginia Plan, from which the Constitution emerged, was presented on the floor by Governor Randolph, but Madison had done most of the work on it. He might be said to have mothered the Constitution, too,  because he devoted himself to it exclusively  during the months of the convention. His recollection was that he not only attended every session but that he was never absent for more than a few minutes, and he was certain that he could not have missed a single speech of any duration. He kept copious notes of the speeches, and they are judged to be the most reliable record of what was said. A great debt is owed to this man.

Governor  Morris  was, however, the most dazzling speaker in the convention, an orator whose learning and close reasoning gave an irresistible thrust to his forensic skill. He had been maimed both in arm and leg, and stumped about on a wooden leg. He was also reputed to be quite a lady’s man. Madison and Morris were men who knew what they wanted, who pressed the convention step by step in their direction, who took care to see that what they had won by their reasoning was not lost in the maneuvers over detail, but who yielded gracefully when they were outvoted.

THE NEED TO CREATE A NEW CONSTITUTION

The Framers who met in Philadelphia faced the problem of deciding upon the best way to organize the national government. They wanted to give it enough power to deal effectively with the nation’s needs and to  protect their rights and promote their welfare. But they also wanted to make sure it would not be able to abuse its powers. Many of the Framers had decided before coming to the convention that they did not want to be limited to improving the Articles of Confederation. They were convinced of the need to create a new constitution.

THE VIRGINIA PLAN

Before the convention, Madison had already drafted a plan for a new national government, called the Virginia Plan. The most important thing to know about the Virginia Plan was that it created a national government.

The Articles were a ‘central’ government that could act only upon the states, not upon the people directly.

A ‘national’ government can act  directly upon the people. Under a national government federal officials, such as federal marshals or FBI agents can arrest people in any state. Under a central government the only law enforcement officials would be state officials or agents. In short, a national government has much more power.

Under Madison’s plan, the national government would have the power to collect its own taxes, to make laws, and to enforce them in its own courts.

Each citizen would be under two governments. They would be under a national government and a state government. Both of these governments would get their authority from the people. People would be citizens, for example, of both Virginia and the United States.

The existence of two governments, national and state, each given a certain amount of authority,  is what we now call a federal system. It was a new way to organize a government. It was very unique.

In addition, the Virginia plan provided that:

1. The national government would be composed of three branches: legislative,  executive,  and judicial.

2. The legislative branch would  be more powerful than the other branches because, among       other things, it would be responsible for selecting people to serve in the executive and judicial branches. Remember – this is the Virginia Plan not our current method of selection.

3. The legislative branch was to include a Congress with two houses.  A House of Representatives  would be elected directly by the people of each state.  A Senate  would be elected by members of  House of Representatives from lists  of persons nominated by the legislatures of each state government. Again, this was the Virginia Plan.

The number of representatives from each state in both the House and the Senate would be based on the size of its population. This system of proportional representation meant that states with larger populations would have more representatives in each house of Congress than states with smaller populations.  If a state had twice as many people as another state,  it would have twice as many votes in Congress. In short, the larger states would have much more power.  Also, under this system, the government represented and acted directly upon the people, not the states, as the central government had done under the Articles.

Furthermore, the Virginia Plan  gave the legislative branch of the national government the power:

1. to make all laws that individual states were unable to pass, such as laws which regulated trade between two or more states.

2. to strike down laws of the state legislatures that it considered to be in violation of the national constitution or the national interest.

3.to call forth the armed forces of the nation against a state, if necessary,  to enforce the laws passed by Congress.

4. to elect people to serve in the executive and judicial branches of government.

REACTIONS TO THE VIRGINIA PLAN

There was considerable debate among the Framers over the Virginia Plan.  Most agreed that representation in the House of Representatives should be based on population.  The main disagreement was about how many representatives each state could send to the Senate.  The different positions were as follows.

The larger states wanted the Senate also to be based on proportional representation.  This would mean that they could send more representatives to the Senate than the smaller states.  They would then have more power than the smaller states in both the Senate and the House of Representatives.

The  smaller states  wanted the Senate to be organized so that each state, no matter how many people lived in it, would have equal representation.  Thus, at least in the Senate, no state would have more power than any other state.  The position of the small states was based on their fear that unless they had an equal voice in the Senate, the larger states would use the powers of the national government against them.

This debate created a major problem.  The Framers from New Jersey, a small state, asked for time to come up with their own plan to be used as the basis for discussion on how to organize the new government.

THE NEW JERSEY PLAN

The Framers from New Jersey and the other states with smaller populations were afraid that the Virginia Plan would create a national government in which they had little power.  They argued that the safest and fairest thing to do would be to improve the Articles of Confederation. William Paterson, a fiery delegate from New Jersey put his objection this way: “I will never consent to the present system [the Virginia Plan], and I shall make all the interest against it in the state which I represent that I can. Myself, or my state will never submit to tyranny or despotism.”  Paterson then came up with a plan, the New Jersey Plan, that he felt would be fair to both large and small states.  The following are some of the main parts of the plan:

1. Legislative branch.

a. Congress would have only one house with each state having equal representation; it would be given increased powers such as the following.

b. Taxes.  The national government would be given the power to levy certain taxes such as import duties to raise money for its operations, along with the power                                   to collect money from states if they refused to pay.

c. Trade.  Congress would be given the power to control trade among the states and with  foreign nations.

d.Control over the states.  The laws and treaties with foreign nations made by Congress would be considered to be the supreme law of the nation.  No state could                                 make laws that were contrary to these laws.

2. Executive branch

This branch would be made up of several persons selected by Congress.  They would have the power to administer national laws, appoint other executive office                                   holders, and direct all military operations.

3. Judicial branch

A supreme court would be appointed by the leaders of the executive branch.  It would have power to handle conflicts over treaties,  trade among the states or with                                foreign nations, and the collection of taxes.

WHY WAS THE VIRGINIA PLAN USED?

Basically, the New Jersey Plan  continued the system of government existing under the Articles of Confederation.  In this system, the central government represented and acted upon the states rather than directly representing and acting upon the people.  The New Jersey Plan did contain useful suggestions to solve some of the weaknesses of the Articles of Confederation.  If these suggestions had been made at the beginning of the meeting in Philadelphia, they might have been accepted by everyone except those who were the most committed to having a very strong national government.  If that had happened, the new constitution might not have been developed.

However, by the time the New Jersey Plan was presented, two weeks after the Virginia Plan, many of the delegates had become convinced that they should create a significantly stronger national government.  Madison’s plan became the basis for that government.

Read pages 48 to 54 in your text book.

TOPIC 14 HOW DID THE FRAMERS DEVELOPED THE LEGISLATIVE BRANCH, AND THE POWERS THEY GAVE IT?

Purpose: When you are done with this lesson, you should be able to:

1. Explain how and why the present system of representation in Congress came to be and the advantages and disadvantages of the system.

2. Describe how Article I of the Constitution delegates explicit powers to the Congress and limits powers of the state governments.

3. Describe the “three-fifths clause” and the “fugitive slave clause” and explain what issues they were intended to resolve.

INTRODUCTION

The Constitution authorizes three branches of government — the legislative, executive, and judicial. This was in accord with the view that the powers of government should be separate, so as to guard against the abuse of powers that would likely occur if they were concentrated in any one branch. The Congress, then. was to make laws, the executive to put them into operation, and the judiciary to manage conflicts over the meaning of laws and to enforce them with punishments.

You should remember that the powers granted are not entirely separate. In fact, they are frequently intertwined so to require the joint effort of two or more of the branches to carry out or place in operation some action [this is what is meant by 'checks and balances']. For example, the President must approve an act of Congress before it can become a law. Otherwise, extraordinary majorities must be obtained in both houses. The effect of requiring the participation of two or more branches is an added guarantee against tyrannical action, because it is supposed to make it that much more difficult for government to act arbitrarily.

The inner check in the Congress is that it is divided into two houses: the House of Representatives and the Senate. Each house must concur by at least a majority of those present for a bill to be passed.

Moreover, the two houses are differently constituted. The House of Representatives is elected by popular vote and the number apportioned to each state was to be based on population. Senators, on the other hand, were originally elected by their state legislatures [the 17th Amendment, 1913, changed it to a popular vote], and each state was allotted two Senators. Thus, the states had equality of representation in the Senate.

There are also some differences between the two bodies in regard to the powers they exercise. All revenue measures have to originate in the House of Representatives. This was an attempt to give additional power to the popularly elected body over taxing and spending. The House was also given the power of impeachment of officers of the United States, including the President ["Impeachment," as used in the Constitution, is the equivalent of a grand jury indictment in ordinary trials, for what the House does is to bring charges of wrongdoing against an officer of the government.]

Members of both houses are free from arrest while attending a session of Congress, or going to and from one, except for “Treason, Felony, and Breach of the Peace.” Furthermore, they are not subject to investigation by any body for any vote or participation in debate in their respective bodies.

The general powers of Congress are listed in Article I, Section 8. This section, along with the following Section 9, and the first ten amendments constitute the most important parts of the Constitution, for it is in the innovative powers of the government and the limits and restraints upon them that the major protections of the liberty of the people are to be found. It is Sections 8 and 9, and the amendments, that these powers, restrictions, and liberties are most clearly articulated.

HOW SHOULD CONGRESS BE ORGANIZED?

Once the Virginia Plan was accepted, there was still the problem of deciding how to organize the new government in a way that would be acceptable to most of the Framers. The first debates were about what responsibilities and powers should be given to Congress and how it should be organized. The result of the Framers’ efforts was the development of Article I of our Constitution.

THE PROBLEM  OF REPRESENTATION

After the defeat of the New Jersey Plan, the Framers from the small states became increasingly afraid that the new national government would be dominated by the larger states. Their solution was to insist that each state have the same number of representatives in the Congress — the position called equal representation. They were also convinced that the people in their states would never approve the Constitution if it did not preserve the idea that all states should be treated equally.

The delegates from the larger states thought this was not fair. They argued that a state with a larger number of people should have a greater voice (that is, more votes) in the decisions of the national government–the position called proportional representation. When asked to vote, half the Framers voted one way and the other half voted the other. Neither side was willing to compromise.

At this time a special committee was formed of one delegate from each state. This committee was responsible for trying to develop a plan to save the situation. Some of the strongest supporters of the Virginia Plan, such as James Madison and James Wilson, a delegate from Pennsylvania, were against giving this responsibility to a committee.  However, most of the Framers disagreed with them and the committee went to work.

THE GREAT COMPROMISE  (Connecticut and/or Sherman Compromise)

The result of the committee’s work at the Philadelphia Convention is known both as the Great Compromise, the Connecticut Compromise, and sometimes the Sherman Compromise. Its solution, first suggested by  Benjamin Franklin (but put together by Roger Sherman of Connecticut),  contained the following proposals:

1. The House of Representatives would be elected on the basis of proportional representation.

2. There would be equal representation of each state in the Senate.

3. The legislature of each state would select the two senators from each state.

4. The House of Representatives would be given the power to develop all bills for taxing and government spending – commonly called money bills. This was because the House was going to be directly elected by the people (taxation through representation).

5. The Senate was limited to either accepting or rejecting these bills, as originally proposed, it could not change them.  This was later changed to permit the Senate to amend “money bills” developed in the House. Since the senators were not going to be directly elected by the people they could not initiate a tax, nor initiate the spending of money collected through taxes. Later, the Senate  would be directly elected (17th amendment, 1913) and thus allowed to amend money bills.

6. The small states received the equal representation in the Senate that their delegates wanted in order to protect their interests.

7. The large states gave up control of the Senate but kept their control of the House of  Representatives. And the House was given important powers regarding taxation and government spending (money bills).

8. When the committee presented this compromise to the Framers, it was bitterly fought by some members from the larger states, including Madison, Wilson, and Governor Morris, an important  delegate from Pennsylvania.  The debate became so heated that two delegates from New York  left the convention and did not return.

9. The crisis passed when the compromise passed by  ONE VOTE.

THE POWERS OF CONGRESS - ARTICLE ONE OF THE CONSTITUTION

The Framers intended the new government to be a government of  enumerated (specifically listed),  powers. They thought it was important to list the powers of Congress so that there would not be any confusion about what Congress could and could not do. Any power not clearly enumerated was to belong to the state governments.

The list of what Congress can do appears in Article I, Section 8 of the Constitution. It includes such important matters as the power to lay and collect taxes in order to “pay the debts and provide for the common defense and general welfare of the United States…,” to declare war, and to raise an army and navy.

In addition to the powers the Framers specifically listed for Congress, they added at the end of the list the power to make all other laws that are “necessary and proper” for carrying out the enumerated (specifically listed) powers. This is called the NECESSARY AND PROPER CLAUSE.  It is the clause that has enabled Congress to justify most of the legislation they pass that does not fit under the category of enumerated powers. It has been nicknamed the “elastic clause” because it has the effect of stretching (expanding) the power of Congress. It is still debated today, although not nearly as hotly as it was in our past. The tenth amendment was intended to bring clarity to the necessary and proper clause by declaring that all powers not clearly given to the new national government belonged to the state governments. However, this amendment has been, in recent decades, largely ignored.

James Madison voiced these very concerns when he wrote:

“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”

–James Madison, letter to Edmund Pendleton, 21 January 1792

Obviously, James Madison would be very concerned about how  far we have veered from a government of specifically listed powers to a government of, at best, listed but stretched powers.

CONTROLLING THE STATE GOVERNMENTS

One of the main reasons the Framers agreed to meet in Philadelphia was their concern over actions some of the state governments were taking. They wanted to create a national government that would be able to limit the powers of state governments, in part, because these state governments did not always obey the central government under the Articles of Confederation. Furthermore, the central government did not have the power to enforce its decisions.

THE POWER OF THE NATIONAL GOVERNMENT OVER STATE GOVERNMENTS AND THE PEOPLE

The primary solution that was finally adopted was the creation of a national government with the authority to act directly  on the people. This meant that the national government was no longer dependent on the states for the collection of the taxes it levied or the enforcement of the laws it passed.

The Framers also included a number of phrases or clauses in the Constitution that set forth the powers of the national government over state governments and the people.

1. The Supremacy Clause states that the Constitution and all laws made by Congress are the supreme law of the land.

a. The executive branch is given the power to enforce these laws.

b. The Supreme Court is given the power to handle  conflicts over their application and interpretation.

2. Article IV of the Constitution gives the national government the authority to guarantee each state a “republican” form of government.

3. Article IV also requires the national government to protect the states from invasion or domestic violence.  This important grant of power is known as the guarantee clause.

LIMITS ON THE POWERS OF STATE GOVERNMENT

The Constitution includes several limitations on the powers of state government. Some of the most important are listed below.

1. Article I prohibits state governments from:

A. creating their own money

B. passing laws that enable people to violate contracts such as those between creditors and debtors.

C. making ex post facto laws, laws which make acts crimes even though the acts were legal at the time they were committed

D. entering into treaties with foreign nations or declaring war

2. Article IV prohibits states from:

A. unfairly discriminating against citizens of other states

B. refusing to return fugitives from justice to the states from which they fled

PROBLEMS THAT SEPARATED THE NORTHERN AND SOUTHERN STATES

The Great Compromise had settled the disagreement between the large and small states over how many representatives they could send to the Senate and the House of Representatives.  Another issue still had to be resolved. This was the conflict between the interests of the states dependent on slave labor and those where slavery was forbidden.

Slavery had been practiced for almost as long as there had been colonies in America.  Most, not all, of the Framers were opposed to slavery. Many, like Washington and Jefferson, spoke out against slavery yet continued to hold slaves. Part of the reason the new capital city, the District of Columbia, was moved out of Philadelphia to land carved out of Virginia and Maryland was because Washington, Jefferson and others were uncomfortable with their slaves being in a city that was an abolitionist stronghold. Philadelphia was home to many Quakers, a Protestant Christian denomination, that loudly condemned slavery. Philadelphia also had a law that said any slaves that were kept there past six months were free.  To avoid the uncomfortable situation many historians believe Washington and Jefferson were, at minimum, very happy to have the new capital in a place where their slaves would blend in.

Nevertheless, people in the south still used slaves as workers, and considered them as personal property. Delegates from some of these states informed the others that their states would refuse to be a part of the new national government if it denied citizens the right to import slaves. If the Constitution interfered with slave trade, North Carolina, South Carolina, and Georgia made it clear that they would not become a part of the new nation. The hypocrisy of many (Washington and Jefferson included) was obvious. And to avoid a national crisis compromises were made.

COMPROMISES MADE TO GET SOUTHERN STATES TO SIGN THE CONSTITUTION

In order to satisfy the demands of the states, a guarantee was written into the Constitution that the national government would not interfere with the slave trade until at least 1808.

The three-fifths clause was also included, it said that each slave was to be counted as three-fifths of a person in determining how many representatives a state could send to the House of Representatives. Also, each slave was to be counted as three-fifths of a person for purposes of taxation. This clause is a blatant contradiction of the Declaration of Independence’s contention that “all men are created equal and endowed by their Creator with certain unalienable rights,…”

Lastly, the fugitive slave clause (contained in Article IV) provided that slaves who escaped to other states must be returned to their owners. Another contradiction allowed in order to bring together a politically unified national government.

These provisions, designed to satisfy the demands of slave-owning states, were not matters of great controversy. In 1787, although there was much opposition to slavery, it was not yet the major issue it was later to become.

Read Chapters 10, 11 and 12 (pages 260 – 348) in your text book.

TOPIC  15: HOW THE FRAMERS DEVELOPED THE EXECUTIVE AND JUDICIAL BRANCHES AND THE POWERS THEY GAVE THESE BRANCHES

Purpose:    When you finish this lesson you should be able to explain how the Constitution organizes the executive and judicial branches.  This should include an explanation of the limits on the powers of the executive.  New ideas and terms included in this lesson which you should be able to explain are listed  below.

impeach

electoral college

electors

original jurisdiction

appellate jurisdiction

I. LIMITING THE POWER OF THE EXECUTIVE BRANCH

The Framers wanted to give the executive branch enough power to fulfill its responsibilities.  However, they did not want to give the executive branch so much power that it could easily be abused.

Americans and many Englishmen believed that the king, through the use of bribes and special favors, had been able to control elections and exercise too much power over the Parliament — upsetting the proper balance of power between the king and Parliament.  It was the destruction of this balance that Americans referred to when they spoke of the corruption of the Parliament by the king.

In addition, they believed that the royal governors had corrupted the colonial legislatures in the same way. It is not surprising that after their experience with the king and his royal governors, the Americans provided for very weak executive branches in most of the state constitutions, the exception being Massachusetts.

This however, created other difficulties.  The weak executive branches were not able to check the powers of the state legislatures. These legislatures passed laws that, in the opinion of many, violated basic rights, such as the right to property.

The problem that faced the Framers, then, was how to create a system of balanced government.  They wanted to strengthen the executive branch without, at the same time,  making it so strong that it could destroy the balance of power among the branches, as they believed the king and royal governors had.

What they did was limit the powers of the executive branch by making it share most of its powers with Congress (the legislative branch).  This was intended to keep the powers balanced and to provide Congress with a way to check the use of power by the executive branch. This was accomplished in the following ways:

1. Appointments – The power to appoint leading members of the executive branch was shared  with Congress. The president had the right to nominate persons to fill these                 positions, but the Senate had the right to approve or disapprove of the persons nominated.

2. Treaties – The power to make treaties foreign nations was also shared with Congress. The president had the right to enter into a treaty with another nation, but the treaty had to be approved by the Senate.

3.. War – Although the president could conduct a war, only Congress had the power to declare   war, and Congress controlled the money necessary to wage war.

4. Veto – Although the president could veto a law made by Congress, it could still become a law  if two-thirds of Congress voted to override the veto.

5. Impeachment – Finally, the Constitution gave the Congress the power to impeach the  president. Only the House of Representatives could bring charges of impeachment.                The Senate had the responsibility of trying the president to determine guilt or  innocence. If found guilty by two-thirds of the Senate, the president would be removed                 from office.

THE EXECUTIVE BRANCH – ARTICLE II OF THE CONSTITUTION

The difficulty of organizing the executive branch raised the following questions which were dealt with by the Framers in the Constitution:

1. Single or plural executive.  Should there be more than one chief executive?

The Framers easily agreed that there should be a single executive to avoid the possible problem of conflict between two leaders of equal power.

2. Term of office. How long should the chief executive remain in his position?

The Constitution sets the term of office at four years.

3. Reelection.  Should the executive be eligible for reelection?

The Constitution originally set no limit upon the number of times a president could be reelected. However, the 22nd Amendment sets the limit at two terms.

4. Powers.  What powers should be given to the executive branch of the government?

The executive branch was given those powers the Framers thought would be most efficiently carried out under the supervision of a single person, with the assistance of persons under his control. These include the following:

a. carrying  out and enforcing laws made by Congress.

b. making treaties with foreign nations.

c. conducting wars.

THE VAGUENESS OF ARTICLE II

If you look closely at Article II you will see that it is short and vague in comparison with Article I.  It speaks of “executive power” but does not define it.  Section 3 seems to give the president power to suggest legislation, which is not an executive power.  Executive departments are mentioned, but there is no provision  for creating them, deciding how many there should be, or how they should operate.

The Framers, never having experienced a democratically elected president, found it hard to imagine exactly what he would do.  They trusted George Washington, expected him to become the first president, and thought he could be counted upon to fill in the gaps and set wise examples that would be followed by later presidents. That is exactly what happened.

SELECTION OF THE PRESIDENT

The main alternatives debated by the Framers were to have the president selected by:

A. the Congress

B. the state legislatures

C. the state governors, or

D. the people by direct election

The Framers knew that whichever group had the right to select the president or replace him in a new election would have great power over him. This power might be used to benefit some groups at the expense of others. It also might make it difficult for the president to function properly. They also knew that if Congress was given the power to choose a president, then limiting him to one long term was a way to prevent his being manipulated by Congress in order to get reelected. If the president was not chosen by Congress, then providing for a shorter term would make him more accountable to the people and he might be permitted to run for reelection as many times as he wanted.

The problem was given to a committee to develop a plan that a majority of the Framers would support.

The committee’s plan was a clever compromise. It did not give any of the groups listed above the right to select the president. The plan showed that the Framers did not trust the people’s judgment and knowledge.  They thought the country was so large that it would be impossible for most people to be personally familiar with the candidates and their qualifications. Furthermore, many people were uneducated. The result was the committee created an unusual organization called the electoral college which was given the responsibility of electing the president.

THE ELECTORAL COLLEGE (the main parts)

1. The electoral college would be organized once every four years to elect a president. After the  election, it would be dissolved.

2. Members of the electoral college, would be selected from all of the states.

3. A state’s number of electors would be the same as its number of representatives in Congress.

4. The methods for selecting electors would be decided upon by the state legislatures.

5. Each elector would vote for two people, one of whom could not be a resident of his state. This forced the state to vote for at least one person who might not                                            represent its particular interests.

6. The person who received a majority of the votes in the electoral college would become president, and the person with the next largest number of votes would be vice                          president.

7. If no one received a majority of the votes in the electoral college, then the House of Representatives would select the president by a majority vote, with each state                                having only one vote.

8. This compromise was quickly approved by the Framers. Although it was quite complicated and unusual, it seemed to them to be the solution to their problem.

9. There was little doubt in the Framers minds that George Washington would easily be elected the first president.

10. There was great doubt that anyone after Washington could ever get a majority vote in the electoral college. They left the convention believing that in almost all of the future elections for president the final decision would be made in the House of Representatives.

If one looks at the electoral college from view that has the The Great Compromise in mind you will see that it is similar in its philosophical approach. Each state gets two electoral votes for simply being a state (similar to two senators from each state). It doesn’t matter how many people live in the state, or how many acres the state has. Next, electoral votes are distributed based on population (similar to the House of Representatives). More people means more electoral votes. So both equal and proportional concepts come into play.

What this does is keep states that do not have large populations from becoming completely powerless, when it comes to the selection of the president. As a result, the minimum number of electoral votes a state will have is three (two for each senator, and one for a member in the House of Representatives). This is a unique system that fits the unique characteristics of our country.

In 1804 the 12th amendment separated the ballots for president and vice-president. No longer would the first place finisher become president and second place become vice-president. The election of 1800 forced this change. In it both Thomas Jefferson and Aaron Burr tied. Although they ran together with Jefferson being the intended presidential candidate, Burr tried to sneak in by having the House of Representatives elect him. After many votes in the House Jefferson will be elected when one state simply did not cast a vote. It was a big controversy, and to avoid it in the future the 12th amendment was added to the Constitution.

Today, every state except Maine and Nebraska has a “winner take all” system, which means that the candidate who receives the most popular votes in a state receives the votes of all the electors. The Maine and Nebraska systems require a plurality (a candidate must have the most votes but does not have to win a majority) in each congressional district, and its electoral votes can then be split based on district totals.

Votes from the electoral college are counted by joint session of Congress after a presidential election in January. Of the more than 50 presidential elections since the electoral college was established, in only three of them — 1824, 1876, and 2000 — has the winner of the popular vote not won the electoral vote.

THE JUDICIAL BRANCH – ARTICLE III

The Framers had fewer problems agreeing on how to organize the judiciary than they had with the other two branches. They created the Supreme Court as the head of the judicial branch and reached the following agreements:

1. Judges should be independent of politics so that they could use their best judgment to decide cases and not be influenced by political pressures.

2. The best way to make sure that judges would not be influenced by politics was to have them , not elected, and to have them keep their positions “during good behavior.”  This meant that judges could not be removed from their positions unless they were impeached and convicted of “treason, bribery, or other crimes and misdemeanors.”

The judiciary was given power to decide conflicts between state governments, and decide conflicts that involved the national government.

The Supreme Court was given authority to handle two types of cases. These are:

1. Cases in which the Supreme Court has original jurisdiction.  Such cases involve a state government, a dispute between state governments, and cases involving ambassadors.

2. Cases which have first been heard in lower courts and which are appealed to the  Supreme Court. These are cases over which the Supreme Court has appellate jurisdiction.

One important matter was not decided by the Framers. This was whether the Supreme Court should be given the power of judicial review over the legislative and executive branches of the national government. Judicial review is the authority to declare acts of the other branches of the national government unconstitutional.

This would mean giving one branch the power to ensure that the other branches did not exceed the limitations placed upon them by the Constitution, the higher law of the land.

The power of judicial review had been given to the judicial branches of some of the state governments by their constitutions.

However, some of the Framers thought that it might be dangerous to give members of any branch of government not elected by the people the power to strike down laws made by members of Congress, who were elected by the people. They saw this as violating the principle of consent, that is, it went against the will of the people.  It was anti-democratic.

Nothing specific was decided on this subject at the Convention. The power of judicial review was clearly established by the Supreme Court itself in 1803. The case was Marbury v. Madison.  (Its original roots, however, go back to the Privy Council, a group which advised the king of England, and had the power to overrule decisions made by colonial courts if they violated English laws.)

Read Chapters 13,14,  and 18 (pages 350 – 410 and 502 – 528) in your text book.

TOPIC  16:  FINISHING THE CONSTITUTION: WHAT CONFLICTING OPINIONS DID THE FRAMERS HAVE ABOUT THE COMPLETED CONSTITUTION?

Purpose: When you are done with this topic you should be able to explain the opinions of those for and against the newly completed Constitution. In particular, you should be able to explain George Mason’s criticisms.

MORE PERFECT UNION (Success From Failure)

The Articles of Confederation represented the first step in putting together the foundational principles of the Constitution.  While this document was relatively weak in power and scope, it served an important purpose.  From its failures, the Framers of the Constitution learned what worked and what did not work. In a sense, on their second try the Framers got it right.

Ten days before the Constitution was signed,  the members of the Philadelphia  (Constitutional) Convention formed a Committee of Style and Arrangement to revise the articles that had been drafted and to put them into a presentable form.  William Samuel Johnson, Alexander Hamilton, Gouverneur Morris, James Madison, and Rufus King were chosen for the committee.

Written and reworked by these men, the Constitution was to be included with a letter for presentation to Congress.  The men also condensed the work of the convention from 23 articles into 7.  Morris who had given more speeches than any other delegate, was credited with the majority of the actual rewriting and the style of words that became our Constitution.

CONCLUDING THOUGHTS ON THE NEW CONSTITUTION:

The decision to give the national government power to act directly upon individuals as well as make it the supreme government (higher law) was accompanied by determined efforts to limit it. There was general agreement on the need to limit the power of the national [federal] government.    As Governor Morris, an influential delegate put it:  “… Abilities and virtue, are equally necessary  in both  branches  (the  legislative and executive).   Something more  is  now  wanted.  1.  The checking branch must have a personal interest in checking the other branch, one interest must be opposed to another interest.  2. Vices as they exist must be turned against each other….3. It should be independent.”    (Madison, Notes of the Federal Convention, p. 233)

James Madison declared that if it “be essential to the preservation of liberty that the Legislative, Executive, and Judiciary powers be separate, it is essential to a maintenance  of the separation, that they should be independent of one another.”  That is, they must be independent in their source of power.  They accomplished this, so far as they did, by having the House elected directly, by the voters, the Senate by the state legislators, the President by an electoral college, and the giving of life terms during good behavior for judges appointed by the President with the consent of the Senate.

Another fateful question the Framers asked, and believed that they had answered was: how those who were to govern could be made sufficiently independent of those who elected them without posing fatal dangers to the liberties of the people.  In doing this the Framers raised a question which is rarely raised today; namely, whether or not representatives of the people could be trusted not to overstep the bounds of their power and invade the rights of the people. There were those in the Constitutional Convention who thought that this could be guarded against by frequent elections.  Roger Sherman of Connecticut was one of them. He stated that “Government is instituted for those who live under it.  It ought therefore to be so constituted as not to be dangerous to their liberties. Frequent elections are necessary to preserve the good behavior of rulers.” [Madison, p.196]   Others questioned this principle, for they noted that a too close dependence of the government on the people resulted not in wise and stable government but in pandering of politicians to the temporary and changing opinions of the populace.  Madison had just said prior to Sherman’s remarks that the objective of the Constitution was “first to protect the people against their rulers; secondly to protect the people against” their own tendency to err because of “fickleness and passion.” [Madison, p.193-194]

As happened in so many cases, the Framers came to a compromise between conflicting opinions.  The principle of frequent elections was satisfied by having the members of the House  elected every two years.  On the other hand, stability would be the object of having the Senate terms run for six years, and having one-third of the Senate stand for election every two years (creating a continuous body).  A further compromise was to have the President’s term fall between these extremes.  Because   there were so many compromises in the course of the making of the Constitution, some historians have gone so far as to describe the document as a “bundle of compromises.”

The phrase itself may be accurate,  but not if it  is taken to mean that the Framers yielded up their principles on issue after issue to accommodate a  welter of narrow interests.  Other than the sectional issue of slavery and the compromises which resulted, most of the compromises were the result of sacrificing narrow interest for the common welfare (general good). So it was quite often at the convention at Philadelphia;  men advanced one-sided, narrow, or limited views in the debates but arrived at great principles through compromise.

The result was, and still is, the oldest operating written constitution in the world. At a time when the world was accustomed to being ruled by kings the colonists began a new way where power would come from the ground up — the people. Before power started at the top with a king, now power began at the bottom with the people.  In scholarly talk, there was a paradigm (world view) shift. The way people thought about government would never be the same.

It is important to remember, as noted in a previous lesson, that the Constitution is,  by its nature,  a charter that seeks to limit the power of government. It is the law of the land, but law of a special kind.  The Constitution is law that applies not to private individuals but to government itself.  In making the Constitution the supreme law of the land, the Framers sought a legal, and not merely political, limitation on government.

The specific provisions of the Constitution limit government because they define and distribute its powers.  By enumerating, separating, and dividing power, it protects against any one branch of government dominating the others.  In the “vertical” sense, power was divided among national [federal or general], state, and local governments.  This is the basic meaning of federalism. In the “horizontal” sense, the system of  separate yet overlapping functions and checks and balances divided power at the national level. As James Madison explained in Federalist No. 51, this system would be our best protection against tyranny:

“[T]he great security against a gradual concentration of the

several powers in the same department consists of giving

those who administer each department the necessary

constitutional means and personal motives to resist

encroachments of the others.”

The flexibility of the Constitution derives not from any lack of principle or meaning, but from the freedom it gave the branches of government to interact with each other and adapt to changing circumstances.

As the delegates of the Philadelphia Convention went back home to urge the people to ratify the Constitution, they knew that something remarkable had taken place that summer.  They had put aside narrow self-interests and  dared to find means by which freedom, order, and justice might be secured for future generations.

CONFLICTING OPINIONS THE FRAMERS HAD ABOUT THE CONSTITUTION

Although most of the delegates argued for adoption of the Constitution, many had some reservations about it.  The reservations of a few were so severe that they refused to sign the document.  The position of one of these,  George Mason will be explained in detail.

The following remarks were made by two of the Framers on the last day of the convention.  One of these Framers signed the Constitution; the other did not.

…every member [of the convention] should sign.  A few characters of  consequence, by opposing or even refusing to sign the Constitution, might do                                      infinite mischief…. No man’s ideas were more remote from the plan than [mine are] known to be; but is it possible to deliberate between anarchy…on                                          one side,  and the chance of good to be expected from the plan on the other?          (Alexander Hamilton.)

…A Civil war may result from the present crisis…. In Massachusetts…there are two parties, one devoted to Democracy, the worst…of all political evils,                                          the other as violent in the opposite extreme…. for this and other reasons… the plan should  have been proposed in a more mediating shape.

(Elbridge  Gerry,   signer of the Declaration of Independence  and 5th vice president of the United States.)

You can see from the opinions of the above writers that they must have expected strong opposition to the ratification of the Constitution.  You have studied the major decisions made by the Framers.  In the final weeks of the Convention, the only thing left to do was to put the plan they had agreed upon in written form.  Accomplishing this meant getting agreement about how each section should be worded.

The delegates did not leave the convention thinking they had created a perfect government.  The four months they had spent putting it together had been filled with strong disagreements.  Some had walked out of the convention.  Others refused to sign the finished document.

The government created by the Constitution was a great experiment in democracy.  The delegates had some old ideas about good government, such as representation, the separation of powers, and checks and balances.  They also developed some new ones, such as the electoral college.  They had agreed on several important compromises in order to create a plan that a majority would accept.

FRANKLIN’S SPEECH ON THE LAST DAY OF THE CONVENTION,  SEPT. 17, 1787

The following speech was read by James Wilson, a fellow delegate from Pennsylvania, because Franklin’s age and illness made him too weak to deliver it himself.

“I confess that there are several parts of this Constitution which I do not at present approve…[But] the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others….In these sentiments…I agree  with this Constitution with all its faults, if they are such; because I think a general Government necessary for us…[and] I doubt…whether any other Constitution we  can obtain, may be able to make a better Constitution.  For when you assemble a number of men to have 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…to find this system so near to perfection as it does….Thus I     consent…to this Constitution because I expect no better, and because I am not sure, that it is not the best…If every one of us in returning to our Constituents were to                 report the objections he has had to it…we might prevent its being generally received, and thereby lose all the salutary effects and great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from a real or apparent unanimity….On the whole…I cannot help expressing a wish that every member of the         Convention who may still have objections to it, would with me, on this occasion doubt a  little of his own fallibility, and to make manifest our unanimity put his name to this instrument.”

GEORGE MASON’S OBJECTIONS TO THE CONSTITUTION

Less than a week before the convention ended,  George Mason, the author of the Virginia Bill of Rights, wrote a list of objections on his copy of the draft of the Constitution.  Some of the most important are set forth below.

1.  The way members of the Senate are selected means that they are not representatives of the people or answerable to them.  They have great powers such as the right to  approve the appointment of ambassadors and treaties recommended by the president, as well as the power to try the president and other members of government in cases of impeachment.  These powers place the senators in such close connection with the president that together they will destroy any balance in the government and do whatever they please with the right and liberties of the people.

2.  The national judicial branch has been given so much power that it can destroy the judicial branches of the state governments by overruling them.

3.  The Constitution does not provide for a group of legislators to serve as advisors to the president.  Such advisors have always been included in any safe and regular government.  As a result the President will not get advice, and will usually be advised by flattering and obedient favorites; or he will become a tool of the Senate.

4.  The president  has the unlimited power to grant pardons for treason.  He may  sometimes use this power to protect people from punishment whom he secretly  encouraged to commit a crime, and in this way he can prevent the discovery of his own guilt.

5.  The Constitution says that all treaties are the supreme law of the land.   They are made by the president with the approval of the  Senate.   Neither the president nor the Senate  are elected directly by the people.  Thus, treaties can be made by people who are not  directly answerable to the people.

6.  The Constitution only requires a majority vote in Congress to make all commercial and  navigation laws instead of a two-thirds vote.  But the economic interests of the five  southern states are totally different from those of the eight northern states which have  a majority of representatives in Congress.  Requiring only a majority vote means Congress may make laws that will favor the merchants of the northern and eastern states at the expense of the agricultural interests of the southern states.  This could ruin the economy of the southern states and leave the people in poverty.

7.  Since the Constitution gives Congress the power to make any laws it thinks are  ”necessary and proper” to carry out its responsibilities,  there is no adequate limitation  upon its  powers. Congress could grant monopolies in trade and commerce, create new crimes, inflict unusual and severe punishments, and extend its powers as far as it wants. As a result, the powers of the state legislatures could be taken from them and Congress could dominate the entire nation.

8. No Bill of Rights. George Mason had also made other criticisms of the constitution during the convention.  Some of them were accepted and some resulted in changes made after the convention.  The most notable of Mason’s criticisms was that the  Constitution did not contain a Bill of Rights. Because of people like George Mason, a Bill of Rights was added to the Constitution.  Lesson 17 will cover the story of why and  how the Bill of Rights was added to the Constitution.

“We ought to attend to the rights of every class of people… [and]

provide no less carefully for the … happiness of the lowest than

of the highest order of citizens.”

George Mason

MADISON’S LAST ENTRY IN HIS NOTES ON THE CONVENTION

The final entry that James Madison made in his notes on the convention describes the scene as the delegates were signing the document that they hoped would become the Constitution of the United States.

Whilst the last members were signing it, [Doctor] Franklin looking towards the President’s 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. [Franklin said] “I have often in the course of the Session 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 ORIGINAL POLITICAL PARTY

Of the 74 who were invited to attend the Constitutional Convention:

- 9 never showed at all

- 12 left early

- 3 refused to sign

- William Blunt sent a medical excuse: “It would be intolerable to travel from New York to Philadelphia on horseback with such a bad case of the piles.”

Just before the Constitutional Convention ended, the cavalry threw a party in honor of George Washington, their former comrade in arms. They were billed for:

- 54 bottles of Madeira

- 60 bottles of claret                                – 8 bottles of cider

- 8 bottles of old stock                             – 12 bottles of beer

- 22 bottles of port                                  – 7 large bowls of alcoholic punch

- 55 men attended and were entertained by 16 musicians who drank 16 bottles of claret, 5 bottles of madeira, and 7 bowls of punch.

TOPIC  17 : WHAT WAS THE FEDERALIST’S POSITION IN THE DEBATE OVER RATIFICATION?

Purpose: When you are done with this topic you should be able to explain the positions and strategy of the Federalists.

THE FEDERALIST’S ASK THE VOTERS TO APPROVE THE CONSTITUTION

The Federalist’s knew that many members of Congress and the state governments were against the new Constitution, largely  because it reduced state powers. They decided not to ask the Congress or state governments to approve the Constitution, even though this is what they were expected to do.

James Madison developed a plan to go directly to the voters to get them to approve the Constitution. The Constitution would be presented at special ratifying conventions to be held in each state. The delegates would be elected by popular vote of the people for the sole purpose of approving the Constitution. Madison’s plan was consistent with the basic idea contained in the  Preamble to the Constitution which says, “We the People…do ordain and establish this Constitution….”

The Federalist’s plan was another example of the use of the idea of a social contract.  The people who were to be governed by the new national government were asked to consent to its creation and to agree to obey its decisions. Some people had argued that the Articles of Confederation were not valid because they had never been presented to the people for their consent.

THE FEDERALIST’S ATTEMPT TO ACT QUICKLY TO DEFEAT THE ANTI-FEDERALISTS.

When the Framers, at the convention approved this plan, they included a provision in the Constitution that would put it into effect after it had been ratified by conventions of just nine of the thirteen states. Once they had agreed upon their strategy, the Federalists encouraged their associates in the states to organize them as quickly as possible. They knew that the Anti-Federalists had not had much time to organize their opposition.

THE STRUGGLE FOR RATIFICATION

Anti-Federalists (those who opposed the new federal government established by the new constitution) put up a strong fight.  The debates in the states over ratification took ten months. It was an intense and sometimes bitter struggle.  One of the most difficult fights was in New York. To help three men, Alexander Hamilton, James Madison  and John Jay,  were asked to write a series of articles to be published in a newspaper in New York. These articles are now called  The Federalist. They are considered to be the most important work written in defense of the Constitution. They both explain and defend the Constitution.

THE FEDERALIST’S ARGUMENTS FOR THE CONSTITUTION

In defending the new Constitution, the writers of The Federalist were very skilled . They presented the Constitution as a well organized, agreed-upon plan for the national government. The conflicts and compromises were downplayed in their attempt to present the Constitution as favorably as possible.

They argued that the civic virtue of the people cannot be relied upon alone to protect basic rights. More was needed. Throughout history, the Federalist’s argued, the greatest dangers in republics to the common welfare and the natural rights of citizens had been from the selfish pursuit  of  their interests by groups of citizens who ignored the common welfare.  By civic virtue they meant that citizens had to be willing, when appropriate, to set aside their selfish interests if it was necessary to do so for the common good.

However, recent experiences with their state governments had led a number of people to doubt that they could rely upon the virtue of citizens to promote the common welfare and protect the rights of individuals. (Many states had passed laws that helped people in debt at the expense of those to whom they owed money. These laws were seen as an infringement upon property rights which were, after all, one of the basic natural rights for which the Revolution had been fought in the first place.

They also argued that the way the government is organized will protect basic rights. They said that the rights and welfare of all would be protected by the complicated system of representation, separation of powers, and checks and balances included in the the Constitution.

It was unrealistic, in their mind,  to expect  people in a large and diverse nation, living hundreds of miles apart, to be willing to give up their own interests for the benefit of others. The large size of the nation, they argued, would make it particularly difficult for any one faction to attain a majority. Since so many interests would be represented it would be less likely  that any one of them would dominate.

Furthermore, the Constitution’s strength  was that it provided for different branches of government which would represent the different interests of the people.  In short, a difficult complicated system was a good thing. For a law to make it through the system it must be good.

Lastly the representation of different interests in the government will help protect basic rights.

A. Legislative branch.  The House of representatives would protect the people’s local  interests, and the Senate would protect the people’s state interests, since it would be elected by state legislatures.

B. Executive branch.  The president would protect the people’s national  interests, since  he would be elected by a method that required electors to select  him from among leaders  who had achieved national prominence.

C. Judicial  branch.  The Supreme Court  would  protect the people’s  fundamental interests, since it was independent of political manipulation and therefore responsible only  to the Constitution.

The three main Federalists were Alexander Hamilton, James Madison, and John Jay. Together they wrote a series of anonymous articles (editorials) about the Constitution that appeared in newspapers (first in New York). Writing under the pseudonym Publius, in reference to Publius Valerius Publicola, a founder of the Roman Empire, their articles, today referred to as The Federalist Papers, or simply The Federalist, laid out the foundational principles of the Constitution. They, The federalist Papers, are often cited in legal arguments, and in court cases.

DID THE NATIONAL GOVERNMENT HAVE TOO MUCH POWER?

The Federalists admitted that the new national government had much more power than the old national government, and that it had more control over the states. But, they argued that it was a government limited to enumerated powers.

Also, the federal system and checks and balances ensured that those limits would not be violated. The increased powers given to the government under the Constitution could only be used to protect, not violate, the rights of the people.

Critics, however, feared that giving so much power to a national government might be a serious threat to their rights and welfare.  These people were called the Anti-Federalists.

TOPIC  18: WHAT WAS THE ANTI-FEDERALISTS’ POSITION IN THE DEBATE OVER RATIFICATION?

Purpose:  When you finish this lesson you should be able to explain the arguments of the Anti-Federalists, and the response of the Federalists to these arguments.

One of the greatest contributions to our Constitution resulted from the debate between the Federalists and Anti-Federalists. That contribution was the Bill of Rights.

The concerns of the of the Anti-Federalists

Most Americans were very suspicious of government, but the Anti-Federalists were especially mistrustful of government in general and strong national government in particular.  This mistrust was the basis of their opposition to the Constitution which they feared had created a government the people could not control.

The importance of representative government and civic virtue

In general, the Anti-Federalists were older Americans who had grown up believing in the basic ideas of republicanism. These included the idea that in a republic, the greatest power should be placed in a legislature composed of representatives elected by the people of a community. It had always been thought that this kind of representative government would only work in a small community of citizens with similar interests and beliefs, because in such a community it would be easier for people to agree upon what was in their common welfare.

It was also believed that people living in small agrarian communities would be more likely to posses the civic virtue required of republican citizens. Living closely together they would be more likely to be willing to set aside their own selfish interests when necessary and to work together for their common welfare.

Many distinguished Americans were Anti-Federalists: George Mason, Patrick Henry, Robert Yates, Luther Martin, George Clinton, and Mercy Otis Warren are some of the better known ones.

The arguments of the Anti-Federalists

The Anti-Federalists argued that the Constitution had the following flaws:

1. It gave too much power to the national government at the expense of the powers of the  state governments.

2. It gave too much power to the executive branch of the national government at the expense of the other branches.

3. It gave Congress too much power because of the “necessary and proper clause.”

4. It did not adequately separate the powers of the executive and legislative branch.

5. It allowed the national government to keep an army  during peacetime.

6. It did not include a Bill of Rights.

7. It should have been developed in meetings whose proceedings were open to the public.

The fear of a strong national government

Because of the flaws they believed the Constitution contained, the Anti-Federalists believed, the new national government would be a threat to their natural rights.  (Mercy Otis Warren, a playwright, wrote a lot on these issues). They felt that the Constitution had been developed by an elite and privileged group to create a national government for the purposes of serving its own selfish interests.

They believed that the only safe government was one that was:

A. local and closely linked with the will of the people

B. controlled by the people, by such means as yearly elections, and by replacing people in key positions often.

At the ratifying convention in Virginia, on June 5, 1788, Patrick Henry gave a speech declaring:

“There will be no checks, no real balances in this government. What

can avail your specious, imaginary balances, your rope dancing,

chain rattling, ridiculous ideal checks and balances!”

Patrick Henry, Virginia

The Federalists’ response

The Anti-Federalists had some of the more traditional arguments on their side (about what made a good government).  However, the Federalists were better organized.

The Constitution and the Federalist’s arguments to support it  contained a solution for the problem of creating  a republican government in a large and diverse nation.

Again, the Federalists focused on the following three primary arguments:

1. The civic virtue of the people could no longer be relied upon as the sole support of a government that would protect the people’s rights and promote their welfare.

2. The way in which the Constitution organized the government, including the separation of powers and checks and balances, was the best way to promote the goals of republicanism.

3. A strong national government was needed to deal with the economic and other  problems of the new nation.

The agreement to add a Bill of Rights

By June of 1788, nine states had voted to ratify the Constitution.  However, the important states of New York and Virginia had not yet approved the Constitution.

When the Federalists promised that one of the first things the new national government would do was to adopt a bill of rights the states of New York and Virginia voted in favor of the Constitution. The agreement was to list those rights of citizens which were not to be violated by the federal  government.

It was also to state that the lists of rights should be interpreted to mean that they were the only rights the people had (see the ninth amendment). The Bill of Rights has proved to be a vitally important protection of the basic rights of the American people.

Federalist arguments against the Bill of Rights

1. The way the government was organized made it impossible for it to violate people’s rights.

2.  Adding a bill of rights would not stop a government if the government did not want to be stopped.

3.  Most of the state constitutions had bills of rights  and many of those governments were thought to have violated at least some of the people’s rights.

4.  Some Federalists even argued that a national bill of rights might be a dangerous idea, since it  might give the impression that the people only expected protection of those rights listed.

Finally,  a  compromise was reached.  In order to get some of the Anti-Federalists to support the Constitution,  the Federalists agreed that when the first Congress was held, it would draft a bill of rights to be added to the Constitution.  It was to list those rights of citizens which were not to be violated by the federal government.  But they insisted that the bill of rights include a statement saying that the list of rights should not be interpreted to mean that they were the only rights the people had (see the 9th Amendment).

The Federalists deserve the credit for writing the Constitution, which created our present form of government.  The debate resulting from the Anti-Federalists’ objections to the Constitution resulted in the addition of the Bill of Rights.  It was not a useless addition.  The Bill of Rights has proved to be vitally important to the protection of the basic rights of the American people.

The “Bill of Rights” [1791] a summary -

1.         Freedom of religion, speech, press, and assembly.

2.         Right to keep and bear arms.

3.         Limitation on quartering of soldiers in private homes.

4.         Limitation on searches and seizures.

5.         Protection of personal and property rights.  Do not have to testify against oneself.

6.         Right to a speedy,  public,  and fair trial.

7.         Trial by jury in civil cases.

8.         Excessive bail and cruel and unusual punishments prohibited.

9.         People possess other rights besides those enumerated.

10.       Undelegated powers belong to the States or the people.

Ratifying Process

Delaware was the first state to ratify the Constitution, doing so on December 7, 1787.  New Jersey and Pennsylvania followed shortly there after.  By early June 1788, nine states had ratified the Constitution. But the critical states of New York and Virginia had not. Of the two, Virginia had the most spirited debates regarding ratification.

But on June 25, by a narrow 10-vote margin, the Virginia convention voted to approve the document. One month and day later, by just a three vote margin, New York, despite the efforts of upstate farmers fearing excessive taxation, approved the document as well.  Rhode Island, which had not sent any delegates to the convention, became the last state to ratify the Constitution, approving it by a 34 – 32 margin in May 1790.

The Least You Need to Know

1. The Constitution is the oldest written Constitution still in use, and it is also one of the shortest, using approximately 6,700 words to establish the supreme law of the land.

2. The Declaration of Independence served three purposes: It established a new theory of government, listed the reasons for separation from England, and declared war.

3. While there were 13 states at the time of the Convention’s drafting, only 12 took part in its development because Rhode Island refused to send a delegate.

4. It took four months to compile a document that a majority of the delegates could agree on, and it  took another nine months to get the necessary number of state conventions to approve it.

The rest of the amendments to the Constitution -

AFTER  THOUGHTS

11.       Exemption of states from suit by citizens of other states.   [1798]

12.       Election of the President and Vice-President on separate ballots. [1804]

CIVIL  WAR  AMENDMENTS

13.       Slavery prohibited.  [1865]

14.       Guarantees of due process of law and equal protection of laws against  infringement by  states.  African-Americans  (Blacks) are citizens.    [1868]

15.       Black suffrage.   [1870]

PROGRESSIVE AMENDMENTS

16.       Congress empowered to impose an income tax.  [1913]

17.       Popular election of senators.  [1913]

18.       Prohibition of intoxicating liquors for beverage purposes.   [1919]

19.       Female suffrage.   [1920]

NEW  DEAL  AMENDMENTS

20.       Abolition of “Lame Duck” session of Congress.  Change in Congressional and Presidential terms.   [1933]

21.       Repeal of prohibition.   [1933]

22.       Limitation of Presidential terms of office.   [1951]

23.       Presidential vote for the District of Columbia.   [1961]

24.       Poll Tax prohibited in national elections.   [1964]

25.       Presidential disability and succession.  [1967]

26.       Eighteen year old suffrage.  [1971]

OTHER

27.           Increases in salaries must wait until the next term. [1992]

Read pages 56 – 58 in your text book.

A Summary of the US Constitution

The Preamble

The Preamble lists the reasons that the 13 original colonies separated from their mother country, and became an independent nation.

We the People of the United States,

in Order to form a more perfect Union,

establish Justice, make good government & laws

insure domestic Tranquility, peace in our homes

provide for the common defense, national security

promote the general Welfare, healthy communities

and secure the Blessings of Liberty freedom

to ourselves and our Posterity, family & friends

do ordain and establish give authority

this Constitution the supreme law of the land

for the United States of America.

The Seven Articles of the US Constitution

The Constitution is our plan for government. The Articles of the Constitution talk about the duties of the three main parts of government: the Executive Branch, the Legislative Branch, and the Judicial Branch.

The articles also talk about the separate powers of the Federal and State government, and how to change the Constitution.

Article 1: Legislative Branch: the U.S. Congress makes the laws for the United States. Congress has two parts, called “Houses,” the House of Representatives and the Senate.

Article 2: Executive Branch: the President, Vice-President, Cabinet, and Departments under the Cabinet Secretaries carry out the laws made by Congress.

Article 3: Judicial Branch: the Supreme Court decides court cases according to US Constitution. The courts under the Supreme Court decide criminal and civil court cases according to the correct federal, state, and local laws.

Article 4: States’ powers: States have the power to make and carry out their own laws. State laws that are related to the people and problems of their area. States respect other states laws and work together with other states to fix regional problems.

Article 5: Amendments: The Constitution can be changed. Viewing it as a changeable  document is more accurate than seeing it as a living document.  New amendments can be added to the US Constitution with the approval by a two-thirds vote in each house of Congress (67, 281) and three-fourth vote by the states (38).

Article 6: Federal powers: The Constitution and federal laws are higher than state and local laws. All laws must agree with the US Constitution.

Article 7: Ratification: The Constitution was presented to George Washington and the men at the Constitutional Convention on September 17, 1787, Representatives from twelve out of the thirteen original states signed the Constitution.   From September 1787 to July 1788, the states meet, talked about, and finally voted to approve the Constitution.

Federalist 10 (by: James Madison)

Summary

In this concise analysis of political behavior, Madison defines political faction and how it may be contained. This essay’s carefully crafted language and analytical depth draw on Madison’s earlier studies of this issue. Faction introduces “instability, injustice, and confusion” into public life. Madison regards “the superior force of an interested and overbearing majority” as the most dangerous form of faction.  A faction is a majority is a majority or minority of citizens bound “by some common impulse of passion, or of interest, adverse to the rights of other citizens” or to the community’s“ permanent and aggregate interests.”  Zeal for differing religious and political beliefs  and the personal ambitions of political leaders represent some of the “latent causes of faction.”  The other great causes of faction are the division between property owners and those without property, and between creditors and debtors.  “The regulation of these various and interfering interests forms the principal task of modern legislation…”

Madison believes the causes of faction cannot be removed or suppressed, but their effects can be contained in a republic, where citizens elect a small number of leaders to represent them.  The Madisonian imagery is of a fiery, passionate, difficult to control force that cannot be removed or  avoided, but can be checked and contained in political life.  “Liberty  is to faction what air is to fire, an ailment without which it instantly expires,”  he writes, adding,  “It could not be a 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.”

Finally, a republic’s size contributes to containing faction. Here Madison turns accepted political theory on its ear.  Conventional wisdom had it that republican government was best suited to small states (see earlier lessons, esp. #3); larger polities required centralized, more tightly controlled leadership.  Just the opposite is true,  Madison argues.  Republican government is best suited to large territories because “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 to all who feel it to discover their own strength and to act in unison with each other.”

FEDERALIST #10

Among the numerous advatages 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 government 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….  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 minoity 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….

Faction Defined

By  a  faction  I understand a number of citizens, whether amounting to a majority or 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 removing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes 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 aliment without which it instantly expires.  But it 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 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 reciprical influence on each other; and the former will be objects to which the latter will attach themselves…

Faction’s Origin in Human Nature

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 pre-eminence 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…. 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 lnded 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 government.

No Person or Party Should Judge His Own Cause

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgement, 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…. The apportionment of taxes 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 (dollar) with which they overburden the inferior number is a schilling (dollar)  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 Causes of Faction Cannot Be Contained, Only Its Effects

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…. 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 form of popular government, is then the great object to which our inquiries are directed….

By what means is this object attainable?…

A Pure Democracy Cannot Contain Faction

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;… 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.

The Difference Between a Democracy and a Republic

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….

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 Value of Distance from the Electorate

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…. The question resulting is, whether small or extensive republics are most favorable… 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 certain number in order to guard against the confusion of a multitude….

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 center on men who possess the most attractive merit and the most diffusive and established characters.

The Problem of Too Few or Too Many Representatives

It must be confessed that in this, as in most 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 representative 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 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.

Increasing a Republic’s Size Reduces Prospects of Disruptive Faction

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…. 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….

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 [also] by the Union over the States composing it….

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 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.

ANTI-FEDERALIST: writings

Introduction

The papers collected into The Anti-Federalist were both responses to Madison, Jay, and Hamilton,  and critical essays about the proposed constitution. Of course, they were written during the same period as The Federalist, the late 18th century, in the United States, and were published in various newspapers and journals of the day, just as were The Federalist Papers.

Simply put, they rejected the constitution as it stood. The draft was without the later crucial addition of the Bill of Rights. Their general problems, however, would not be fully solved by the addition of the Bill of Rights. They, the leading Anti-Federalists, would have likely rejected the constitution anyway, as the fact remains that they saw tyranny within the fibers of the constitution itself. That is, the political system delineated in the constitution later adopted as the fundamental charter of American government, they thought, contained the seeds of tyranny within itself, and the Bill of Rights would not be sufficient to guard against this tendency. It would be an error, however, to claim that these men were simply partisans of the Articles of Confederation (America’s original constitution, agreed to by Congress November 15, 1777 and ratified and in force March 1, 1781), as it is true that most recognized the limitations of the Articles; still, it would be correct to say that they preferred the older system of government, in which the states were fully sovereign to the newly proposed Constitution

The Anti-Federalist Founding Fathers’ predictions of the future: simply, that the federal government, under the proposed constitution, would gobble up the states, and in so doing, force all internal business to be regulated by the new monolithic federal government. In the process, of course, true liberty would be destroyed, and a forced uniformity would be the official ideology of the new system.

Continuing in this mode the general opinion of the Anti-Federalists was that the power of taxation will gradually become the property of the federal government, and that in the process the independence of the states would be destroyed. The Anti-Federalists predicted the coming of the income tax and what they saw as its horrible invasive consequences.   “Brutus,”  another major Anti-Federalist writer (probably New York judge Robert Yates, who, along with fellow New York delegates to the Federal Convention, refused to sign the constitution), describes the coming federal tax regime and the future Internal Revenue Service (IRS): “This power [of direct federal taxation], will introduce itself into every corner of the city and country- It will wait upon the ladies at their toilet, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even in their church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlor, preside over the table, and note down what he eats or drinks . . . it will take cognizance of the professional man in his office . . . it will watch the merchant in his counting house, or in his store; it will follow the mechanic into his shop, and in his work and will haunt him and his family, and in his bed; it will be the constant companion of the industrious farmer in all his labor, it will be with him in his house, and in the field . . .”

All of this, so the Anti-Federalists claimed, would be legitimized under the authority of the “general welfare” clause of the constitution (8th section, article I). This clause-vague and imprecise-caused the Anti-Federalists much worry. What limit, they asked, would the federal government have if it can justify everything under the heading of “general welfare”? Many in this camp smelled a rat within the Federalist party,  suspecting that the latter was using purposely vague language so they, or their successors, might later impose a centralized tyranny upon the country. The taxing power was one of the most important steps to this and was an indispensable element to political or economic centralization.

Another clause caused the Anti-Federalists   difficulty was the “necessary and proper” clause. In other words, once a  federal program went into effect, however innocuous, this clause left the door open to any sort of federal intervention into the lives of individuals, localities, counties or states in that they might do whatever, in the eyes of the feds, is “necessary and proper” to fulfill their “duties” in carrying out the policy. This was another hole that they thought was too gaping to have been an accident.

It is probably the case that the Anti-Federalists worried far more about, ultimately, the elimination of states as independent political (and even moral) entities more directly than anything else; much else of value was bound up with the idea of decentralization and cultural particularity. Unlike most Federalists, the Anti-Federalist movement at this time was largely communalist, believing that the specific politics, needs and norms of the specific states and regions were the keys to social stability, and, as such, needed to be kept in place.

For most of them, the very worst thing that could happen to the fledgling American republic was that it be ruled by an arrogant central administration, far removed from the local needs of the specific states and regions of the nation.

October 9, 1787 (The Federal Farmer: Melancthon Smith)

The present moment discovers a new face in our affairs. Our object has been, all along, to reform our federal system, and to strengthen our governments-to establish peace, order and justice in the community. But a new object now presents. The plan of government now proposed is evidently calculated totally to change, in time, our condition as a people. Instead of being 13 republics, under a federal head, it is clearly designed to make us one consolidated government.

Independent of the opinions of a great many authors, that a free elective government cannot be extended over large territories, a few reflections must evince that one government, and general legislation alone, never can extend equal benefits to all parts of the United States: Different laws, customs, and opinions exist in the different states, which by a uniform system of laws would be unreasonably invaded.

The minority of Pennsylvania, those dissenting from the proposed constitution from that state, wrote on December 18, 1787 in the same vein as “Brutus”:
The power of direct taxation will further apply to every individual, as Congress may tax land, cattle, trades, occupations etc in any amount, and every object of internal taxation is of that nature, that, however oppressive, the people will have but this alternative, except to pay the tax, or let their property be taken, for all resistance will be in vain. The standing army and select militia would enforce the collection. (252-53)

Not only is some sort of income tax predicted, but the existence of the IRS. In other words, a tax on income (taxes on “trades and occupations”) would force, necessarily, a huge invasion of one’s family and personal life in order to regulate the collection of such taxes. Never forget that while reading either The Federalist or The Anti-Federalist, that Daniel Shays’s rebellion (August 1786-February 1787) had just passed, and tax warfare and tax rebellion were already in full swing. Those who dreamed of a global financial empire, such as Alexander Hamilton, knew that federal enforcement of taxation would eventually be a necessity, and the Anti-Federalists responded in kind.

The Pennsylvania minority hinted at this by claiming, in reference to this difficulty, that “the framers of this constitution appear to have been aware of this great deficiency. . . .”  an accusation, in context, of a political sleight-of-hand, that is, that the framers were less than forthright about the constitution’s difficulties.

The Pennsylvania minority continues:
The powers of Congress under this new constitution are complete and unlimited over the purse and the sword, and are perfectly independent of, and supreme over, the state governments, whose intervention in these great points is entirely destroyed. By virtue of their power of taxation, Congress may command the whole or any part of the property of the people. They may impose what imposts upon commerce; they may impose what land taxes, poll taxes, excises, duties, on all written instruments, and duties on every other article that they may judge proper.

October 18, 1787 (Brutus)

To the Citizens of the State of New York.

When the public is called to investigate and decide upon a question in which not only the present members of the community are deeply interested, but upon which the happiness and misery of generations yet unborn is in great measure suspended, the benevolent mind cannot help feeling itself peculiarly interested in the result….

The first question that presents itself on the subject is, whether a confederated government be the best for the United States or not? Or in other words, whether the thirteen United States should be reduced to one great republic, … or whether they should continue thirteen confederated republics, under the direction and control of a supreme federal head for certain defined national purposes only?

This enquiry is important, because, although the government reported by the convention does not to go to a perfect and entire consolidation, yet it approaches so near to it, that it must, if executed, certainly and infallibly terminate in it.

This government is to possess absolute and uncontrollable power, legislative, executive and judicial, with respect to every object to which it extends, for by the last clause of section 8th, article 1st, it is declared “that the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United states; or any department or office thereof.”  And by the 6th article, it is declared “that this constitution, and the laws of the United states, which shall be made in pursuance thereof, and the treaties made,… shall be the supreme law of the land…”  It appears from these articles that there is no need of intervention of the state governments, between Congress and the people, to execute any one power vested in the general government, and that the constitution and laws of every state are nullified and declared void, so far as they are or shall be inconsistent with this constitution, or the laws made in pursuance of it,…  — The government then, so far as it extends, is a complete one, and not a confederation…. all that is reserved for individual states must very soon be annihilated, except so far as they are barely necessary to the organization of the general government….

How far the clause in the 8th section of the first article may operate to do away all idea of confederated states, and to effect an entire consolidation of the whole into one general government, it is impossible to say…. Suppose the legislature of a state should pass a law to raise money to support their government and pay the state debt, may the congress repeal this law, because it may prevent the collection of a tax which they may think proper and necessary to lay, to provide for the general welfare of the United states?… — By such a law, the government of a particular state may be overturned at one stroke, and  thereby be deprived of every means of its support.

It is not meant, by stating this case, to insinuate that the constitution would warrant a law of this kind; or unnecessarily to alarm the fears of the people,… But what is meant is, that the legislature of the united States are vested with the great and uncontrollable powers,… And if they may do it, it is pretty certain they will;…  Besides, it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over everything that stands in their way….

If respect is to be paid to the opinion of the greatest and wisest men who have ever thought or wrote on the science of government, we shall be constrained to conclude, that a free republic cannot succeed over a country of such immense extent, containing such a number of inhabitants, …[To quote] baron de Montesquieu, spirit of laws, chap.xvi. vol.I (book VIII). “It is natural to a republic to have only a small territory, otherwise it cannot long subsist. In a large republic there are men of large fortunes, and consequently of less moderation;… In a large republic, the public good is sacrificed to a thousand views;…In  a small one, the interest of the republic is easier perceived, better understood, and more within the reach of every citizen;…”

History furnishes no example of a free republic, anything like the extent of the United States. The Grecian republics were of small extent; so also was that of the Romans.  Both of these, it is true, in process of time, extended their conquests over large territories of country; and the consequence was, that their governments were changed from that of free governments to those of the most tyrannical that ever existed in the world….

The territory of the United states is of vast extent; it now contains near three millions of souls, and is capable of containing much more than ten times that number. Is it practicable for a country, so large and so numerous as they will soon become, to elect a representation, that will speak their sentiments, without their becoming so numerous as to be incapable of transacting public business? It certainly is not….

…In so extensive a republic, the great officers of government would soon become above the controul of the people, and abuse their power…

These are some of the reasons by which it appears, that a free republic cannot long subsist over a country of the great extent of these states.  If then this new constitution is calculated to consolidate the thirteen states into one, as it evidently is, it ought not to be adopted.

November 1, 1787

To the Citizens of the State of new York.

I flatter myself that my last address established this position, that to reduce the Thirteen States into one government, would prove the destruction of your liberties….

…Those who have governed, have been found in all ages ever active to enlarge their powers and abridge the public liberty.  This has enduced the people in all countries, where any sense of freedom remained, to fix barriers against the encroachments of their rulers.  The country from which we have derived our origin, is an eminent example of this.  Their magna charta and bill of rights have long been the boast, as well as the security, of that nation. I need say no more, I presume, to an American, than, that this principle is a fundamental one, in all the constitutions of our own states; there is not one of them but what is either founded on a declaration or bill of rights, or has certain express reservation of rights interwoven in the body of them. From this it appears, that at a time when the pulse of liberty beat high and when an appeal was made to the people to form constitutions for the government of themselves, it was their universal sense, that such declarations should make a part of their frames of government. It is therefore the more astonishing, that this grand security, to the rights of the people, is not to be found in this constitution.

November 15, 1787

To the Citizens of the State of New York.

…Under these impressions, it has been object to turn your attention to the principal defects in this system….

…The first important object that presents itself in the organization of this government, is the legislature.  This is to be composed of two branches; the first to be called the general assembly, and is to chosen by the people of the respective states, in proportion to the number of their inhabitants, and is to consist of sixty five members, … not to exceed one for every thirty thousand inhabitants. The second branch is to be called the senate, and is to consist of twenty-six  members, two of which are to be chosen by the legislature of each of the states.

…Representatives are to be proportioned among the states respectively, according to the number of freeman and slaves inhabiting them, counting five slaves for three free men.

“In a free state,” says the celebrated Montesquieu, “every man, who is supposed to be a free agent, ought to be concerned in his own government, therefore the legislature should reside in the whole body of the people, or their representatives.”  But it has never been alleged that those who are not free agents, can, upon any rational principle, have any thing to do in government, either by themselves or others.  If they  have no share in government, why is the number of members in the assembly, to be increased on their account? Is it because in some of the states, a considerable part of the inhabitants consists in a number of their fellow men, who are held in bondage, in defiance of every idea of benevolence, justice, and religion, and contrary to all the principles of liberty, which have been publicly avowed in the late glorious revolution? If this be a just ground for representation, the horses in some of the states, and the oxen in others, ought to be represented — for a great share of property in some of them, consists in these animals; and they have as much controul over their own actions, as these poor unhappy creatures, who are intended to be described in the above recited clause, by the words, “all other persons.”

…The very term, representative, implies, that the person or body chosen for this purpose, should resemble those who appoint them — a representation of the people of America, if it be a true one, must be like the people. It ought to be so constituted, that a person, who is a stranger to the country, might be able to form a just idea of their character, by knowing that of their representatives. They are the sign — the people are the thing signified…. One man , or a few men, cannot possibly represent the feelings, opinions, and characters of a great multitude.  In this respect, the new constitution is radically defective. –…sixty-five men cannot be found in the United states, who hold the sentiments, possess the feelings, or are acquainted with the wants and interests of this vast country.

February 28, 1788

The second paragraph of sect. 2d. art. 3 is in these words: “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact,…”

I believe it is a new and  unusual thing to allow appeals in criminal matters.  It is contrary to the sense of our laws, and dangerous to the lives and liberties of the citizen. As our law now stands, a person charged with a crime has a right to a fair and impartial trial by a jury…, and their verdict is final. If he is acquitted  no other court can call upon him to answer for the same crime. But by this system, a man may have had ever so fair a trial, have been acquitted by ever so respectable a jury of his country; and still the officer of the government who prosecutes, may appeal to the supreme court. The whole matter may have a second hearing.  By this means, persons who may have disobliged those who execute the general government, may be subjected to intolerable oppression….

I can scarcely believe there can be a considerate citizen of the United States, that will approve of this appellate jurisdiction, as extending to criminal cases, if they give themselves time for reflection.

Brutus.

UNIT FOUR: The ESTABLISHMENT of the GOVERNMENT our EARLY YEARS

PURPOSE:

One way of seeing the Constitution was as a plan for creating and operating the new government, much like an architect’s  plan for  building a house.  It described the way the government was to be organized, its powers, and its limitations.  It is important to understand that the Framers had purposely written the Constitution as a general framework for the government.  They had left out many details they knew would have to be added by future presidents and members of Congress.  This unit will provide you with an understanding of how the government was organized under the Constitution. It will also tell you about some of the unexpected developments that have had a significant influence on the way our nation is governed today.

TOPIC 19:  HOW WAS THE CONSTITUTION USED TO ORGANIZE THE NEW GOVERNMENT?

When you have completed this lesson, you should be able to explain why the Bill of Rights was added as a series of amendments to the Constitution and why it applied only to the actions of the federal government. You should also be able to explain how the federal court system and executive branch were organized. You should also be able to identify the following terms.

Ninth Amendment

Tenth Amendment

Judiciary  Act of 1789

federal district court

appellate court

president’s cabinet

bureaucracy

I.  Tasks of the first Congress

The newly elected First Congress met in New York in April of 1789 to begin their work.  Their first four major tasks were: [a]. Name the new president and vice-president,  [b]. Draft a bill of rights. [c]. Organize the judicial branch of government. [d]. Organize the executive branch of government.

II. Naming the new president and vice president

Article II, section 1 sets forth the way the president and vice president are to be chosen by electors appointed by the state legislatures.  Once all the ballots are collected, the president of the Senate is to supervise the counting.   When this was done in 1789, the votes showed, as expected, that George Washington had been elected president.  John Adams, with the second highest number of votes, became vice president.

The 12th Amendment,  ratified in 1804, changed the process to have the president and vice-president elected on separate ballots.

III. Drafting the Bill of Rights

In his inaugural address, George Washington urged the Congress to respond to the widespread demand to add a bill of rights  to the Constitution. James Madison recommended that the new Constitution be rewritten to include a number of limitations on the power of the government. Roger Sherman of Connecticut objected to making changes in the body of the Constitution itself.  He argued that since the Constitution had just been ratified, it should not be rewritten. He said that any changes or additions should be listed as amendments  at the end of the  Constitution.

A majority of  the House and Senate agreed with Roger Sherman, and the Bill of Rights was added at the end of the Constitution as a series of amendments,  approved by Congress, and later ratified by the necessary eleven states on December 15, 1791.

The Bill of Rights contains ten amendments (the first  ten). The first eight list basic protections  that had already been guaranteed in most of the state constitutions. These include freedom of religion, press, speech, assembly, and trial by jury. The Ninth Amendment states that the listing of certain rights does not mean that these are the only rights people have. The Tenth Amendment states that the powers not given to the federal government by the Constitution, nor prohibited by the Constitution to the states, are to be retained by the states and the people.

Madison had also suggested that the Bill of Rights be written in such a way that they applied to the state governments as well as the federal government. Congress rejected this proposal, and a decision of the Supreme Court in 1833 (Barron  v. Baltimore) made clear that the Bill of Rights only applied to the federal government.

However, today most of the protections of the Bill of Rights have been applied to the states through the Supreme Court’s interpretations of the 14th Amendment.

IV. Organizing the judicial branch

Article III of the Constitution says 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…establish.” This was a very  general guideline – giving the first Congress the task of organizing a system of federal courts.

Congress did this by passing a law known as the Judiciary Act of 1789. It established two levels of federal courts below the Supreme Court.  The first level included afederal district court in each state. This courts were responsible for the first hearing or trial of most cases involving the Constitution and federal laws. The second level was a system of appellate courts.  These were courts where decisions made by the federal district court in each state could be reviewed for errors of law.  From these appellate courts, cases could be appealed to the Supreme Court, the highest court in the federal system.

In addition, each state has its own courts established by its own legislature to rule  on state law. Today the Supreme Court plays a more  important role in our federal government than it did in the early years.

During the early years the Supreme Court played a much less significant role.  The first Chief Justice, John Jay, spent little time on the job. While he was serving as Chief Justice, he spent a year in England on a diplomatic mission and ran for governor of New York twice.  Another of the justices, John Rutledge, did not attend a single session of the Supreme Court during its first two years. Oliver Ellsworth, the next Chief Justice, resigned his position in 1800 (the job was not challenging enough).

V. Organizing the executive branch

The Constitution gives the Congress the power to organize the executive branch. When the first Congress met, its members were still concerned about the need to control the executive branch and to prevent the president from gaining too much power. This concern was made clear in the debate over how the president should be addressed. It was first proposed that he should be referred to or introduced as “His Highness, the President of the United States of America.” However, since the government was a republic and not a monarchy ruled by a king, they decided that this would not be proper. Instead, Congress agreed on the simpler, more democratic form of “The President of the United States.”

The first Congress created a number of departments to be under the control of the president to help fulfill the responsibilities of the presidency. The persons to be in charge of these departments were to be called secretaries. Together they became the president’s cabinet. The first of these were:

a. Thomas Jefferson - Secretary of State

b. Henry Knox - Secretary  of War  (Defense)

c. Alexander Hamilton – Secretary  of the Treasury

In addition to these three, Edmund Randolph was selected to be the Attorney General.  It was his responsibility to handle all Supreme Court cases involving the federal government, and to give the president legal advice.

When Jefferson was president, there were only 2120 people working in the executive branch.  Today there are more than 3 million people working in this branch, and there are now 14 departments and numerous other federal agencies. Today there are more people working in the executive branch of the federal government than there were in the entire nation at the time of the first government.

TOPIC 20: WHAT CAUSED THE RISE OF POLITICAL PARTIES?

PURPOSE: When you complete this lesson, you should be able to explain the opposing points of view which led to the development of political parties, and the significance of the following ideas and terms  as they are used in this lesson.

Faction

Political parties

Federalist Party

Republican Party

General welfare clause

Necessary and proper clause

Alien and sedition Acts

Election of 1800

Why the Framers were against political parties

James Madison had argued in  Federalist  #10 that one of the constitution’s major advantages was its organization of the government in such a way that factions would be controlled. He defined a faction as a  group of citizens, either a majority or a minority, that pursues its own selfish interests at the expense of other citizens’ interests or the common welfare.  As you have learned, many of the Framers believed that factions were dangerous for republican government for this very reason.

In the minds of the Framers,  political parties were factions.  If political parties became a part of the government, each would fight to promote the interests of its own members without regard for the common welfare.  The government would then be controlled by, and serve the interests of, the strongest political party and not promote justice or protect the rights of any groups that might be in the minority.

The Framers believed that people had a natural tendency to differ in  their opinions and to join  together with others whose opinions were similar to theirs.  They also believed that one of the main purposes of government was to protect the individual’s right to property.  And, because of differences in abilities, experiences, opportunities, and interests, some people would inevitably have more property than others.  This and other differences would naturally lead to people’s dividing into different factions with different interests.

However, Madison argued that the influence of these factions would be limited by the complicated system of government planned in the Constitution.  Because of its complexity and the size and diversity of the nation, he argued, it would be impossible for any one or more of these factions to form a majority which could control the government in its own interests.  In spite of this system, however, political parties  did develop and are now an accepted part of the American political system.

Conflicting ideas lead to the development of political parties

When George Washington was first  serving  as president,  he wanted to be able to get advice from people whose opinions he most valued.  He had two such persons in his cabinet, Jefferson and Hamilton.  They had very  different ideas about what the government’s policies should be, and they were often in conflict.  After a while,  when Washington began to accept Hamilton’s opinion

1.  The continuation of the Federalist / Anti-federalist split. The respective political parties were called the Federalists and the Republicans.

2. They came from two members of Washington’s cabinet.

Hamilton – Federalists [supported a national bank]

Jefferson – Republicans [opposed a national bank]

3. Republicans favored small local government while the Federalists favored a strong national government.

4. Republicans feared the “necessary and proper clause”  would negate the Constitution.

5. The “Alien and Sedition Acts” were seen as proof of the Republican fears.

6. The election of 1800 – the first transfer of political power by a democratic process takes place.  The Republicans take over from the Federalists when Jefferson is elected president by the House of Representatives.

7. After the War of 1812 the Federalist Party was no longer significant in American politics.

8. Eventually the Republicans will adopt the name DEMOCRATS [they were often called Democratic - Republicans and simply dropped the Republican part of their name].

9. The modern REPUBLICAN party will not appear until the mid 1800′s as an anti-slavery party with Abraham Lincoln as their first major political candidate.

The following is a short history of the first few elections in our nation’s history

* ELECTION OF 1788-1789 *

Major Candidate for President George Washington, 56, Virginia,  Federalist

Major Candidate for Vice President John Adams, 53, Massachusetts, Federalist

Credentials Washington rose from major to colonel during the French and Indian War [1754-1763], served as a member of Virginia’s House of Burgesses [1759-1774] and commander in chief of the Continental Army [1775-1783]. He was elected president of the Constitutional Convention [1787].

Adams helped edit and signed the Declaration of Independence, drafted the state constitution of Massachusetts [1779-1780], and served abroad in the Netherlands [1780-1782], securing recognition of American independence.  In October 1782 he arrived in Paris to join others in negotiating the end of the war with Britain [the Treaty of Paris, 1783] and became the first minister to Great Britain [1785-1788].

Tickets There were no official nominations etc.  It was assumed at the Constitutional Convention and at state ratifying conventions that Washington would be president. In fact, without that assumption, the Constitution would not have been ratified.

While electors were technically free agents, as the Constitution wanted them to be, they could not help but be swayed by leading federalists, the press, and the public. Since Washington was from a southern state,  it was generally thought that the vice president needed to be from New England so that that area would feel it had a voice in the new government. John Adams became the obvious choice because he had a good record in government service and, more important, was “available.”

Slogans Since Washington had no competition, slogans took the form of favorite-son toasts. In summer 1788, people raised their glasses to “Farmer Washington — may he like a second Cincinnatus, be called from the plow to rule a great people.”

Songs In the months leading up to the election, songs touting Washington and the new union were sung not to promote him for the presidency but  rather to confer the presidency on him.  There was “God  Save Great Washington” [to the tune of "God Save the King"] and “A New Federal Song”  in which “Great Washington shall rule the land,/ While Franklin’s council aids his hand.”

Popular Labels For Washington,  Great White Father,  A Second Moses,  First of Heroes,  the American Romulus,  the Great American Fabius,  and Father of His Country.

For Adams,  Patriot of the Constitution,  Architect of the Revolution,  Apostle of Independence,  and Honest Old John Adams.

Curious Facts Three of the existing thirteen states did not participate in the first election.  North Carolina and Rhode Island, too individualistic to submit at first, did not ratify the Constitution in time;  Rhode Island [Rogues Island, as it was known] did not even try — no ratifying convention was called.

New York was another story. It ratified the new Constitution but there was so much squabbling between Federalists and Anti-Federalists that no electors were chosen by the January-first deadline.

Firsts Washington was the first and only unanimously drafted president.

Alexander Hamilton assumed the role of the country’s first unofficial campaign manager.

Trend The inaugural-address tradition began.

Vote Only four states votes had some form of popular election of electors, and the vote was very light. In the six other participating states, legislatures chose the electors. There were supposed to be seventy-three electors, but only sixty-nine showed up to vote on February 4. [One absentee claimed gout, another icy rivers.]

Capital New York

After years of revolutionary war and months of constitutional controversy, America was like a cat with its back arched. Only the election of George Washington, it was generally thought, would have a calming effect on the new republic. But would he accept?

Returning to Mount Vernon from the Constitutional Convention,  Washington thought he had done enough.  And Washington was tired of hearing the Constitution ridiculed as that “Gilded Trap,” that “triple headed monster” with its three branches of government.

It took many people telling Washington how much he was needed to finally convince him to accept being elected. People like Madison, Jefferson, Governor Thomas Johnson of Maryland,  and Lafayette [who had fought alongside Washington during the war], all did their part.  But, more than anyone, it was Hamilton who held Washington’s hand, telling him he was “indispensable” and could not refuse “the general call of your country.” Washington never publicly put his hat in the ring.  In one letter, he confided he would serve if elected, but only until his services could be “dispensed with.”

John Adams, however, was looking for high office [senator was not good enough].  Hamilton, though, could not bear the thought of Adams accruing a great many electoral votes.  What if he got as many as Washington; what then?  So Hamilton advised some electors to scatter their second votes.

In the final tally Washington received all sixty-nine while Adams landed only thirty-four.  Adams was insulted and said he would think twice about taking office.  However,  when the messenger came, officially calling him to serve, Adams was ready, his bags were already packed.

The election of 1789 did not represent a democratic contest for president, since the popular vote was practically nonexistent.  But it certainly symbolized a heartfelt expression of the public will.  As things turned out, the calm it brought would not last long.

* ELECTION OF 1792 *

Major Candidates Same as election of 1788-89.

Tickets As in 1789, there were no congressional caucuses or nominating conventions.  Washington’s name was the only one bandied about for president.  A move was made by many Republicans to undercut Federalist power by supporting Gov. George Clinton of New York for the vice presidency.

Popular  Labels As president Washington was touted as “The First of Men.”  Adams called himself “Daddy Vice” and others picked up on it.

Name-calling While Washington was spared for the most part,  Adams was belittled as “His Rotundity” and “His Superfluous Excellency.”

Curious Facts Although Hamilton, a Federalist, and Jefferson, who was emerging as leader of the Republicans, were on different sides of so many issues that faced the first administration, they both ended up urging Washington to run for a second term.  In separate appeals they both even used the same argument: Washington would probably be able to retire after a year or two.

Jefferson also supported Adams for the vice presidency on the strength of “his personal worth and services” even though he did not agree with Adams’ “political creed.”

The Press Washington, still revered by most, was attacked mainly for his “royal manners” or the fact that he was “distant.”

Adams received the brunt of the criticism.  A Republican in the Massachusetts Centinel referred to his “lawless lust of POW’R in embryo” and described him as “the first spawn of hell.”

Firsts Every state and every elector participated.

Anti-Federalists began calling themselves Republicans.

Trend Washington set the precedent of a second term.

Vote George Washington was elected with 132 votes. John Adams became vice president with 77 votes.  George Clinton received 50 votes, Thomas Jefferson 4 votes, and Aaron Burr of New York one vote.

Benchmarks Washington was reelected unanimously.

Washington delivered the shortest inaugural address ever, just 135 words.

Capital Philadelphia

George Washington’s first term as president began with such equanimity in domestic politics that the Philadelphia General Advertiser,  an opposition paper in waiting, complained there were “no party disputes to raise the printer’s drooping spirits.”  Before long, the scene changed.

On the economic front, his first term was marked by true division, chiefly between Secretary of the Treasury Alexander Hamilton, the Federalists’ whiz kid and Secretary  of State Thomas Jefferson over many issues, including a central bank.  Washington came to view his two feuding secretaries as spoiled children who argued even though they had so much to be thankful for.  Always tactful, he gently urged them to find “some line…by which both of you can walk.”  But the only thing that Hamilton and Jefferson could agree on was the need for Washington to serve again as president.

Adams was the likely but not popular  choice to be vice president again.  In his role as president of the Senate, Adams got on colleagues’ nerves and was voted down when he fought to have the president addressed as “his Majesty” [only heads of fire companies and cricket companies, he said, were "president"] and tried to dictate how many times a messenger from the Senate must bow on entering the House with a bill.  When Adams worried aloud “what shall I be” when the president came to the Senate”for I cannot be president then,” many just laughed behind his back.

The inaugural celebration was marred by the fact that the French Revolution was at a fever pitch and Francophile Republicans criticized Federalists more than ever for any royal show.  After consulting his advisers, Washington decided on the simplest of ceremonies. He rode alone in his coach to take the oath of office,  made a  brief address and returned home alone.

_____________________________________________________________________________

* ELECTION OF 1796 *

Major  Candidates John Adams, 61, Massachusetts,  Federalist

Thomas Jefferson, 53, Virginia,  Republican

Credentials For Adams, see Election of 1788-1789.

Jefferson drafted and signed the Declaration of Independence, was a member of Virginia’s House of Delegates [1776-1779], Governor of Virginia [1779-1781], a member of the Continental Congress [1783-1784],  and minister to France [1785-1789]. He became the first Secretary of State [1790-1793].

Campaign Notes Washington did not publicly state a preference for Adams or Jefferson to be his successor [although it is assumed that he preferred Adams], nor did he notify the vice president that he definitely planned to retire. Like others, Adams read the President’s Farewell Address to the country in the newspapers in September 1796.

Adams wanted to be president but did not want to fight for the honor.  Saying he was “disinterested,”  Adams spent the summer and fall at home in Quincy, tending his farm and analyzing possible election results.

Jefferson did not want the presidency in 1796 and did nothing to attain it.  He remained at Monticello, worried more about the state of affairs with Britain and France than his own future.

Slogans Adams was elegantly toasted: “To John Adams, inflexible to preserve, virtuous to pursue, and intelligent to discern the true interests of the country.”

Jefferson was promoted in pamphlets, handbills, and the like as the “steadfast friend to the rights of the people.”  His supporters rallied to “Liberty, equality and no King.”

Name-calling Adams was “bonny Johnny” to ridicule his English pretensions.

As the French Revolution turned excessive, Federalists turned to calling Jefferson “Mad Tom” and the “Robespierre of the American mob.”

Once the rivalry between Federalists and Republicans heated up, even Washington was not spared.  “An Ape of Royalty,” an “American Caesar” and “Stepfather of His Country” were all hurled his way.

Curious Facts Party leaders never confirmed to Jefferson that he was their candidate, so fearful were they that he would refuse.  Even James Madison, who founded the Republican party with Jefferson and lived just a half-day’s ride away at Montelier, did not visit Jefferson at Monticello in 1796 “to present him no opportunity of protesting.”

The Press The press played an important part in this election. The Gazette of the United States was the main voice for the Federalists, while the National Gazette and later the General  Advertiser or  Aurora were most vocal for the Republicans.

The Gazette proclaimed that Republicans were corrupting the young people with “the poison of atheism and disaffection.”  Republican papers labeled Adams a “monarchist” who longed for a scepter.

The celebration of Washington’s birthday was questioned in the pages of the Aurora as having “too strong a tincture of monarchy.”

Firsts The first real contest for president.

The first true test of the electoral college.

The first modern political party — the Federalist — was formed in the Western world.   A  Republican movement solidified against it.

The first farewell address.

Trend By retiring, Washington began the tradition of a two-term  presidency.

Vote Adams squeaked into the presidency with 71 electoral votes, one more than needed.  Jefferson became vice president with 68 votes, while Pinckney received 59 and Burr 30.

Benchmark Because electors did not have separate ballots for president and vice president, the president-elect and vice president-elect were of different parties.

Quote “The Lion and the Lamb are to lie down together” was Hamilton’s characterization of the election.

Foreign rather than domestic concerns dominated this election.  Friction between the Federalists in power and the Republicans in opposition grew more spirited as the French Revolution became more excessive.  Federalists were appalled by the Reign of Terror.  But Jefferson and other Republicans, while disturbed by the atrocities against aristocrats, felt that a country could not move from “despotism to liberty in a feather bed.”

Two moves by the administration of Washington and Adams exacerbated the situation.  Washington wanted the union, young as it was, to avoid a  foreign war.  When hostilities broke out between France and Britain, he declared American neutrality.  This brought into open clashes between “Gallomen” [supporters of France] and “Anglomen” who favored England.

Jay’s treaty created an even greater divide.  The English had been asserting themselves on sea and land. The Royal Navy seized about 300 American merchant vessels in the West Indies and forced many of the sailors to work on British ships.  On American soil, Britain had kept its Northern frontier posts in violation of the peace treaty of 1783 and, from them, supplied Indians with firepower against new settlers. In 1794 Washington sent Chief Justice John Jay to London to try to avoid a war Republicans were hungry for.

From the moment Jay, on presenting his credentials, kissed the Queen’s hand, Jefferson’s followers were on the attack.  One American journal cried “Men of America, he betrayed you with a kiss!”  Jay was also at a tremendous disadvantage because Hamilton, who wanted to avoid war with England at any cost, leaked America’s bargaining position.  As a result, Jay came away almost empty-handed but, if the Senate would sign, his efforts added up to peace with Britain.

“Damn John Jay!” echoed through the states. “Damn everyone who won’t damn John Jay!” And then “Damn George Washington!”  This was a turning point.  The president who stood behind the treaty had become fair game.  It took six months, but the Senate ratified the treaty in June 1795.  With that, the Jay treaty became the symbol of irreconcilable differences between the Federalists and the Republicans.

In the spring of 1796 Washington dug out from his files the draft of a farewell address, prepared four years earlier on his first attempt to retire, and sent it off to Hamilton.  Two months later, Hamilton sent it back — completely rewritten.  Washington made some stylistic changes and released it to a Philadelphia newspaper  “and suffer it to work its way afterwards.”  The address was reprinted in papers across the country and ocean. People pored over his concern about the dangers of “the spirit of party” and entanglement “of our peace and prosperity”  in European struggles.

For their own reasons, the two leading presidential candidates stayed silent.  Adams, who thought the vice presidency “the most insignificant office” ever, coveted Washington’s job but wanted the office to come to him.  Jefferson, on the other hand, really did not want the presidency in this time of turmoil.  his eyes were on 1800 [or maybe Sally Hemmings].

During the election Hamilton was up to his old tricks.  Believing that Thomas Pinckney,  Adams’ running mate,  would make a more pliable president, Hamilton devised a strategy to get more Federalist electors to vote for Pinckney than Adams.  The scheme backfired: not only was Adams elected president with 71 votes, but Jefferson, whom Hamilton hated as a Republican and as a man, became vice president with 68 votes.

The inauguration went well. Adams described it in a letter to his wife Abigail as the “sublimest thing ever.”  Even the Aurora gave praise, simply pleased that Washington was out of office.  But Adams was “President by Three Votes,” as Republicans constantly reminded him.  He himself had predicted before the election “a dangerous Crisis in publick affairs if the President and Vice President should be in opposite Boxes.”  Adams would not have it easy.

* ELECTION OF 1800 *   (This is the big one)

Major  Candidates Same as 1796

Tickets In 1800 the congressional nominating caucus came into play.  Federalist members of Congress supported John Adams and Charles Cotesworth Pinckney equally for the positions of president and vice president.  Adams was not specifically nominated for the presidential spot; in this Hamilton, who was feuding with Adams, and other Federalists hoped that Pinckney would receive more electoral votes and become president.  Pinckney, diplomat and brother of Thomas Pinckney, Adams’ running mate in 1796, was from South Carolina and supposed to draw Southern votes to the ticket. he was famous for turning down the French demand for a bribe in the  XYZ  affair  with the  words   “Not  a sixpence!”

Republican members of Congress in may nominated Aaron Burr for vice president on a ticket with Jefferson.  Burr was credited with swinging his home state of New York with its twelve key electors into the Republican camp earlier that month.

Campaign  Notes Both Adams and Jefferson avoided the appearance of campaigning, since it was not proper, in those days, openly to seek  the office of president.  So, stumping was out and just as well;  Adams, who lost most of his teeth, refused to wear dentures and as a result talked with a lisp, while Jefferson had a weak voice and poor platform performance.

But neither candidate kept himself altogether aloof. Jefferson, much more than Adams, wrote numerous letters to his friends, asking them to campaign for him.  He funded Republican newspapers and distributed political pamphlets.

Adams had an advantage as president: He could draw attention to himself in the course of doing his job as president. One trip, though smacked of politicking — or so it seemed to opponents.  Adams traveled from Philadelphia to Washington via Lancaster and York, Pennsylvania and Fredrickson, Maryland. Inquired the Philadelphia Aurora , a  Republican newspaper, “How is it he has taken the route … fifty miles out of the strait course?”

Popular  Labels Adams was called “The Father of the American Navy,” while Jefferson was labeled “The Mammoth of Democracy.”

Name-calling Adams was ridiculed as “President by Three Votes” and “a mere old woman and unfit for a President.”

Jefferson was denounced as “atheist, “  “Infidel,”  and “Jacobin.”

The Press The Federalist  Gazette of the United States headlined: THE GRAND QUESTION STATED.  GOD — AND A RELIGIOUS PRESIDENT;  JEFFERSON — AND NO GOD!!!

In 1799 Jefferson instructed his followers: “The Engine is the Press.”  Republican editors, even though restrained somewhat by the Sedition Act,  harped on Adams’  “monarchical party” and his “Toryism.”  The  Aurora referred to that “old, querulous, bald, blind, crippled, toothless Adams.”

Firsts The first real test of strength between two parties in a presidential contest.

The first transfer of power in America from one party to another in both executive and legislative branches of government.

The first use by both parties of congressional caucuses.

The first of two times that the House of Representatives decided a presidential election.

The first unofficial party platform, written by Jefferson for the Republicans.

Adams was the first President defeated for a second term.

The first inauguration in Washington D.C.

Trends The rise of issue politics.

Formal party organizations appeared in many states.

The Fourth of July became a day of big celebrations tied to patriotism and parties.

The influence of a partisan press.

Benchmarks Adams was the last Federalist President,  this election marking the beginning of the end of the federalist party.

One of the nastiest campaigns ever!!!

The deadlock in the House of Representatives  led to the passage of the passage of the Twelfth Amendment (1804), which brought separate balloting by presidential electors for president and vice president.

A strong Republican press was instrumental in Jefferson’s victory.

The aura that had somewhat protected the sacrosanct figure of George Washington had given way to partisanship.  President John Adams, a Federalist, did not help matters.

A brilliant but rather silly man who loved grand titles, Adams was secretly mocked by Federalist enemies as “His Rotundity.”  And, because in 1796 he received only 71 electoral votes to Jefferson’s 68, Republican pamphleteers jeered “President by Three Votes” throughout his term.

As president, Adams had a brief flirtation with popularity in 1797 when French agents “X, Y and Z,” as Adams called them, tried to bribe American officials. Many Americans clamored for war with France and paraded for patriotism and Adams.

But Adams pursued peace with France [a treaty was eventually signed in 1800] instead of war, which once again alienated Hamilton and his hawkish followers. Then, in 1798, Congress passed the Alien and Sedition Laws, placing restraints on aliens and the press.  these only served to highlight the differences between Federalists, who advocated a strong central government and curbs on criticism, and the Republicans, who stood for state’s rights and freedom of speech and press.

Although the Sedition Law stilled some Republican criticism of Adams [one critic was fined $100 for commenting that the canon fired in honor of Adams would be better aimed at the president’s pants], there was more than enough to make the campaign bitter and personal.  The Republicans quickly spread the rumor that President Adams planned to marry one of his sons to a daughter of George III in order to start an American dynasty with economic ties to England.  Comic rumor even had it that George Washington himself got Adams to change his mind by donning his Revolutionary uniform himself and threatening to run him through with his patriot’s sword.  “See Johnny at the helm of state,” Jeffersonians chorused, “Head itching for a crowny, / He longs to be like Georgy, great, / And pull Tom Jeffer downy.”

Adams had a sharp tongue, but he often managed to stay cool under Republican onslaughts.  When it was rumored that he had sent General  Thomas Pinckney [his running mate in 1796] to England in a U.S. frigate to procure four pretty girls as mistresses for them both, Adams replied genially:  “I do declare upon my honor, if this be true General Pinckney has cheated me out my two.”

Other Federalists fought back, questioning Jefferson’s courage during the revolutionary War, mocking him as dilettante inventor inventor who dreamed up nothing but “Gim-Krackery,” and claiming he copied the Declaration of Independence from a work of Britain’s Jock Locke.  That  was the high road compared to one biographical rip published in the Federalist Connecticut Courant — “Thomas Jefferson … a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia  mulatto father. … Murder, robbery, rape, adultery and incest will be openly taught and practiced.”

In a land still largely agrarian, the Republicans had won the support of the country folk and were better organized.  This was particularly evident when the effort of Aaron Burr brought New York State to the Republican side of the ledger in the spring of 1800.  Hamilton did not help his party by writing that Adams had a “vanity without bounds” and openly trying to make Charles Pinckney, instead of Adams, the next Federalist president.

Even so, history records a neck-and-neck election result . Jefferson and Burr both got 73 to Adams’ 65  electoral votes.The vote forced a runoff in the lame-duck Federalist controlled House of Representatives, which tried to avoid picking Jefferson.  Finally on the 36th ballot, with two states turning in blanks, Jefferson was chosen.  Federalists replied, “President by  No Votes!” because of the blanks. But the political power of the Northeast was broken, at least for the moment.  Jefferson looked back on it as the “Revolution of 1800.”

TOPIC 21 – Judicial Review

What is it, and why is it controversial?

Judicial Review is the power of the judicial branch of a government to declare acts of the legislative and executive branches to be in violation of the government’s constitution.  When a court makes such a decision, it orders that the decision made by the other part of the government be considered “null and void” which means that it is not to be obeyed or enforced. In some situations, this means that the Supreme Court will order that a law passed by a majority in Congress or in a state legislature violates the Constitution and therefore is not to be obeyed or enforced.

Purpose:         When you finish this lesson you should be able to explain the different positions regarding judicial review and its role in our government.  You should also be able to describe the issues raised and the argument of the Supreme Court in the case of  Marbury  v.  Madison .

Introduction

One of the new ideas about government that developed in this nation was the idea that the Supreme Court and lower courts in the judicial branch should have the power to interpret the Constitution and decide what it means.  In some situations, this means that the supreme court will order that a law passed by a majority in Congress or in a state legislature violates the Constitution and therefore is not to be obeyed or enforced.

Throughout our history, there have been great differences of opinion about whether the judicial branch should have this power and how it should be used.  The controversy raises basic questions about representative government and majority rule, on the one hand, and constitutional government and the the protection of basic rights and unpopular minorities, on the other.

If you read the Constitution, you will not find any mention of the power of judicial review.  As you will see, however, soon after the beginning of the new government, the Constitution was interpreted to give the Supreme Court this power.

Judicial review under British and state governments

The Founders were familiar with the idea that some part of government should be given the power to decide whether activities of the other parts of government had violated the “higher law”  of a nation. Under British rule, the Privy Council, a group which advised the king, had the power to overrule the decisions made by colonial courts if they violated English laws. Following the Revolution, some state constitutions gave this power to the judicial branches of their governments.  Even though the belief in legislative supremacy was strong, several state courts had declared laws made by their legislatures to be unconstitutional.

The Supreme Court gains the power of judicial review over state governments

The Framers of the Constitution wanted to correct a basic weakness in the national government under the Articles of Confederation.  As you have learned, under the Articles, the states had the right to decide whether or not they would obey end enforce the laws of the national government.  To strengthen the new government, the Framers wrote Article VI, which, in part, reads:

This constitution, and the laws of the United States which shall be made

in pursuance thereof;  and all treaties 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.

As you have learned, this section of the Constitution is known as the supremacy clause.  It has been interpreted to mean that the Supreme Court can order that state laws not be enforced if they violate federal laws or the Constitution.  The First Congress also made this power clear in the Judiciary Act of 1789.

The Supreme Court first used its power of judicial review over state governments in 1796.  After the Revolutionary War, the United States had signed a peace treaty with the British that said all debts owed by Americans to English citizens would be paid.  However, the state of Virginia had passed a law which canceled all debts owed by Virginians to British citizens. Since this law clearly violated the peace treaty, the Supreme Court ruled that the law could not be enforced because the laws and treaties of the federal government are the supreme law of the land.  As a result, citizens of Virginia were responsible for paying their debts.

The Supreme Court establishes its power of judicial review over Congress

The question of whether the Supreme Court should have the power of judicial review over the legislative and executive branches of the federal government was discussed during the Philadelphia Convention and the debates over ratification.  But, no decision was made that clearly gave the Court this power.  However, many historians believe a majority of the Framers supported this idea. some of the Framers assumed that the Court would have this power. Alexander Hamilton, for example, made this assumption in  The Federalist #78.

The complete independence of the courts of justice is peculiarly

essential in a limited Constitution. … 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 of justice,  whose duty

it must be to  declare all acts contrary to the manifest tenor of the

Constitution 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

men acting by virtue of powers may do not only what their powers

do not authorize, but what they forbid.

The story of how the Supreme court established its power of judicial review over the other branches involves one of the most famous cases in our history, the case of Marbury v.  Madison,  which was decided in 1803.  The following describes this case and its results.

The case of Marbury v. Madison

After Jefferson defeated Adams in the election of 1800,  Adams had several weeks remaining in office.  During this time he did what Franklin D. Roosevelt,  Ronald Reagan, and other Presidents have only dreamed of accomplishing.  Working with a “lame duck” Federalist Congress that would soon be out of power, Adams and Congress  created dozens of new judgeships by passing and signing a new judiciary act.  Adams signed appointments until late into the night before Jefferson was inaugurated. These “midnight appointments” of staunch Federalists throughout the federal courts resulted in the most successful “court-packing” operation in American judicial history.  In doing so, Adams influenced the course of events long after his rather inconsequential four years in office were over. (One of those appointments was his secretary of state, John Marshall, to be Chief Justice of the United States.)

When Jefferson became president, some of the documents which officially gave a number of Federalists their new jobs as judges had not been delivered to them.  John Marshall had apparently forgotten to do this in his last days as Secretary of State before taking the position of Chief Justice.  Jefferson did not want more Federalist serving as judges, so he ordered the new Secretary of State, James Madison, not to deliver the documents.

President Adams had appointed William Marbury to serve as a judge in the District of Columbia (Washington D.C.).  Marbury wanted the job and was upset with Jefferson’s decision not to give  it to him.  He tried to find a way to get what he believed was rightfully his.  He discovered that the Judiciary Act of 1789 gave the Supreme Court the power of writ of mandamus . A writ of mandamus is a court order that forces an officer of the government to do something that person is suppose to do, such as, in this case, deliver the documents that had been officially approved.

Marbury knew that John Marshall, a Federalist, was now Chief Justice, and he believed Marshall would be sympathetic with his situation.  He decided that the best way to get his new position was to ask the Supreme Court to issue a writ of mandamus ordering Madison to deliver the document.

This put  the new Chief Justice Marshall in a difficult position. He was worried about what might happen if he ordered Madison to deliver Marbury’s document and President Jefferson ordered him not to, as he threatened to do. Courts must rely on the executive branch for the enforcement of the laws. If Jefferson were to refuse to obey the decision of the Supreme Court,  it would make the Court appear  weak and powerless. However, if the Supreme Court did not order the President to deliver the document, the Court would also look weak. Furthermore,  events had already proceeded so far under the Judiciary Act of 1802 that there was no longer any such position to be filled. Marshall avoided any potential confrontation by ruling that Marbury had come to the wrong court, since the Constitution did not confer original jurisdiction on the Supreme Court in such cases.

Furthermore, and more importantly,  Marshall used the occasion to declare a portion of the Judiciary Act of 1789 — that portion under which Marbury had brought his suit directly to the Supreme Court — to be contrary to the Constitution. In sum, he held a portion of an act of Congress unconstitutional, and he did so on the highest possible grounds — that the Constitution was a Higher Law before which ordinary acts must give way when in conflict with it.

In arriving at this position,  Marshall asked three key questions.

1.  Does Marbury have a right to the appointment?

2.  If Marbury has a right to the appointment and his right has been violated, do the laws of the country give him a way to have things made right?

3.  If the laws of the country give Marbury a way to deal with this problem, is that way a writ of mandamus from the Supreme Court?

Marshall answered “yes” to the first two questions and “no” to the third. His reasoning was as follows.

Marshall reasoned that the appointment had been signed by the President and sealed by the Secretary of State; therefore, Marbury had the right to hold the office for five years as provided by law.

(This particular job was, by legislation, for a five year term.)  When the Secretary of State refused to deliver the document, he broke the law and violated Marbury’s rights. Marbury had a right to go to a court and ask it to order the Secretary of State to deliver his document and to give him the job approved by the President.

However, the part of the Judiciary Act of 1789 that gave Marbury the right to ask the Supreme Court to issue a writ of mandamus was unconstitutional.  The Constitution clearly limits the Supreme Court’s  original jurisdiction, that is, the cases it can hear without such cases being heard first by a  lower court, to “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.”  Marbury was not  an ambassador, a public minister, consul, or a state,  so the Supreme Court did not have the power to hear his case unless it was first heard in a lower court and then appealed to the Supreme Court.

Marshall reasoned that the part of the Judiciary Act of 1789 that gave Marbury the right to have his case heard by the Supreme Court changed the Constitution.  Since Congress did not have the authority to change the Constitution, that part of the Judiciary Act was unconstitutional.

By declaring a part of the Judiciary Act of 1789 unconstitutional, the Supreme Court gained the power of judicial review  – to declare acts of Congress and the President unconstitutional.  Follow Marshall’s argument (from Marbury v. Madison):

So if a law be in opposition to the constitution; if both the law and the constitution

apply to a particular case, so that the court must either decide that case conformably to

the law, disregarding the constitution, or conformably to the constitution, disregarding the

law, the court must decide which of these conflicting rules governs the case.  This is the

essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior

to any ordinary act of the legislature, the constitution, and not such ordinary act, must

govern the case to which they both apply….

Between these alternatives there is no middle ground. The constitution is either a       superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary

legislative acts, and, like other acts, is alterable when the legislature shall please to alter         it….

Thus, the particular phraseology of the constitution of the United States confirms

and  strengthens the principle, suppose to be essential to all written constitutions, that a

law  repugnant  to the constitution is void…

Marshall’s argument was superbly logical: that the Constitution is superior to ordinary law and that the courts are bound by it, as well as the other branches of the government. Neither Jefferson nor his followers could fault Marshall in his reasoning as quoted above, nor his conclusions.

Review -

When the people of this nation adopted the Constitution to be the supreme law of the land, they had consented  to be governed by its rules, which included important limitations upon the powers of Congress.  When Congress violates those limitations, it has violated the will of the people. If the Supreme Court were not to have the power of judicial review,  there would be no effective way to enforce the limitations the people have placed upon the powers of Congress in the Constitution. Its powers would be unlimited, and we would no longer have a  (limited)  constitutional government.

TOPIC 22:  Interpreting The Constitution

Most  Americans understand that judicial review is a necessary power of the Supreme Court.  They do not always agree, however, on how the Court should use this power. The Supreme Court  often hears cases about which there are strong feelings and great controversy.

Since the Supreme Court has been  given the power to interpret the Constitution,  it is inevitable that some people will support its  decisions and some will criticize them.  These disagreements are often over  the methods used to interpret the Constitution.  In this lesson you will learn about three different methods of interpreting the Constitution.

When you have completed the lesson, you should be able to  summarize these methods and the arguments used for and against each of them.

The Problem of Interpreting the Constitution.

“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 which 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.”

–George Washington, Farewell Address, 1796

In his Farewell Address George Washington made it clear that he feared what is known as Judicial Activism, where the courts go beyond what the Constitution allows and read into the Constitution meanings they believe it ought to have.  We will look at what is a “step approach” so that this doesn’t happen. However, as easy as the principle is to understand, putting it into practice can be difficult. Nevertheless, here we go.

Once the Supreme Court agrees to hear a case on a constitutional issue, the justices face the difficult question of deciding whether or not the federal government or a state government has violated the Constitution.  Understanding the meaning of some parts of the Constitution is fairly easy since most parts of it are quite specific and their meaning is clear.  For example, there is little disagreement about what is meant when the Constitution says that:

*           a person has to be 30 years old to be a senator, or

*           35 years old to be president, or

*           no tax shall be placed on goods exported from a state.

However, as you have seen in previous lessons, not all parts of the Constitution are so clear. For example, what does it mean when the Constitution says the following?

*           Congress shall have the power to make laws which it decides are “necessary and proper” to carry out its responsibilities.

*           Citizens are protected against “unreasonable searches and seizures.”

*           No person shall “deprive any person of life, liberty, or property without due  process of law.”

The Framers knew that deciding on the meaning of such parts of the Constitution would be a continuing process throughout the history of the nation.  The problem of how to interpret the Constitution has not been solved.  Even justices of the Supreme Court disagree about the best method of interpretation.  For this reason, among others,  many important decisions of the Supreme Court have been made by a majority vote of five [5] to four [4] of the nine [9] justices.

The controversies over how the Constitution should be interpreted often focus upon which of the three different methods should be used to interpret the Constitution.  These methods, and the arguments for and against them, follow.

1. Using the literal meaning of the words in the Constitution.

With this method of interpretation, the justices should consider the literal or plain meaning of the words in the Constitution,  or study what the words meant at the time they were written, and base their decisions upon them.

Argument For:

The Court’s decisions should be based, as closely as possible, on how the Framers meant the Constitution to be interpreted.  If the meaning of the words is clear, then this is the best way to find out what they meant.  Also, by relying on the plain meaning, the law becomes certain and predictable.

Argument Against:

It is difficult to know the exact meaning of many of the words and important phrases in the Constitution.  There was even disagreement about their meaning  at the time of the Convention and shortly after it.  Consider,  for example,  the disagreements among Alexander Hamilton, James Madison, and Thomas Jefferson over the meaning of the “necessary and proper” clause.  Besides, the Framers and other Founders did not intend later generations to be restricted to eighteenth-century interpretations, since moral, social, and political standards change.

2. Using the intentions of the men who wrote the Constitution.

The justices of the Supreme Court and of the lower courts should only make decisions based upon how the Framers would have made them.  To find how the Framers would have made the decisions, the justices should read the records of the Philadelphia Convention,  the state conventions that ratified the Constitution, and the congressional debates over the amendments.

Argument For:

This approach is the most faithful to the basic ideas contained in the Constitution.  It limits the ability of justices to base their decisions on their own personal preferences.  If the justices cannot find out what the Framers would have done with regard to an act of Congress or some other branch of government, they should not declare it unconstitutional.

Argument Against:

On many questions about the meaning of the Constitution, it is difficult, if not impossible, to discover exactly what was intended.  First, this approach would require studying the ideas of the fifty-five men who attended the Philadelphia Convention and the ideas of the leaders of all of the state conventions that ratified the Constitution.  Then it would require deciding which of the Framers’ ideas should be counted.  Even when the intentions of some of the Framers were clear, the intentions of others were not, and there often disagreements about the meaning of particular parts of the Constitution.  Furthermore, the Founders had no ideas about such twentieth-century developments as airline travel or wire tapping.  To rely on their intentions, which were formed two hundred years ago, might preserve outmoded ways of doing things and  some  practices  which  are  no  longer  acceptable,   such  as  slavery  and  racial segregation.

3. Using basic principles and values in the perspective of history.

The Constitution contains basic ideas, principles, and values about government and the role that it should play in our lives.  These include the natural rights philosophy, the principles of constitutionalism, and the values of republican government as they were understood by the Founders.  The justices should base their decisions on these basic ideas taking into account the nation’s history and the changes in morality and social policy that have taken place.

Argument in Support:

Justices’ decisions should be based upon their understanding of ideas such as freedom, justice, and equality, and what they mean today. The way we look at some of these ideas is very different from the way the Founders looked at them 200 years ago, and the decisions of the Supreme Court should take these differences into account. It is these general, larger goals that the founders wanted to achieve, and the justices should do their best to adapt them to modern society.

Argument Against:

This approach gives the Justices too much freedom to decide cases according to their own political and moral preferences. Since there are no clear and precise ways to decide how to apply such ideas as freedom, justice, and equality to specific situations, justices would be free to apply them as they wished. This could mean a justice’s position about what is just or fair might be different from the position of the Framers, or a majority of Congress.  This could violate the meaning of the Constitution as the Framer’s intended, and could violate the basic idea of representative democracy by allowing a few justices to overrule the action of the majority of the legislature, which was elected by the people.

Judicial Review in practice

In practice, justices usually use a step approach that begins with looking at the plain meaning, identifying the original intent of the Framers, and ending up at the basic principles method, when original intent is not clear. It is when justices move too quick or easily to the basic principles method that leads many critics to claim that the justices have become too active in imposing their personal opinions (commonly called ‘judicial activism’ out of control).

It is important to note that the process of interpreting the Constitution involves many influences. That is, justices tend to be influenced by many considerations. These include their interpretation of the language of the Constitution and the intention of the Framers (and Founders); the precedents justices have established in previous cases; current social policies and political and economic concerns; and their personal and political beliefs.

Despite these influences, good justices are conscious of their responsibility to rule on the constitutionality of the issues involved, and not on the basis of their own personal feelings. This means that the Supreme Court will rule that a law is constitutional even if the justices feel that it is unwise.    As Chief Justice Warren Burgerstated, when reviewing an act of Congress:

“Its wisdom is not the concern of the courts; if a challenged action

does not violate the Constitution, it must be sustained…. By the

same token, the fact that a given law or procedure is efficient,

convenient, and useful…, will not save it if it is contrary to

the Constitution.”

(INS v. Chadha, 1983)

While it would be unrealistic to pretend that the personal preferences of justices never affect the decisions of the Court, it is reasonable to claim that the continued authority of the Court depends on its being faithful to both the language and spirit of the Constitution.

The Supreme Court’s decisions have been particularly controversial when they have attempted to define and protect certain basic rights. The next lessons will deal with some of the decisions the court has made regarding equal protection of the laws, due process of law, freedom of religion, and freedom of expression.

TOPIC 23: HOW HAS POWER BEEN DELEGATED TO THE FEDERAL AND STATE GOVERNMENTS?

The purpose of this lesson is to increase your understanding of the federal system created under the Constitution.  It also discusses one of the first important Supreme Court opinions that deals with the division of power between the federal and state governments. Finally, it will introduce you to some of the continuing problems of the relationship between the nation and the states.

When you complete the lesson, you should be able to describe the basic characteristics of a federal system and give a brief explanation of the Court’s opinion and its importance. Some terms you should know include: sovereignty, federal system, McCulloch v. Maryland, unitary government, and confederation.

I. HOW IS THE SYSTEM OF GOVERNMENT CREATED BY THE FRAMERS DIFFERENT FROM OTHERS?

Our system of government, created by the Framers, is quite complicated. It differed in two important ways from other systems of government that existed at the time the Constitution was written.

1. Sovereignty, or ultimate authority, is in the people. In other nations, the ultimate authority was thought to be held by the government even if it had received that authority from the people. For example, in some nations the king was sovereign. In Great Britain, the Parliament was sovereign.

In the Preamble to the Constitution, the Framers set forth this new idea of sovereignty when they wrote, “We the People of the United States…do ordain and establish this Constitution for the United states of America.”  Under this new system, sovereignty remains in “the people,” who give certain powers to the government.  The government has delegated powers, but  the people remain the supreme authority.

Bottom line – ultimate power is suppose to rest with the citizenry (the people).  Americans, according to the constitution, are suppose to view their government officials as public servants (employees) of the people as a whole. They are not suppose to view them as bosses and, we the people, as employees.

2. Our government is a federal system.  This means that the people have not delegated all of the powers of government to one central government. Instead, the people of the various states have delegated certain powers to their state constitutions. As citizens of the nation, they have delegated certain powers to the federal government in the U.S. Constitution. And finally, certain powers have been kept by the people and not delegated to any government.

In simple terms, a federal system is sort of a mix of a unitary and confederate system.  It is like a unitary system in that our national government can act directly on the people,  we can be arrested by federal authorities. It is also like a unitary system in that we are citizens of a national (central) government, we are citizens of the United States.  Our system is confederate in that it is an association of semi-independent states (50 united states).  As the 10th Amendment states, unless the power is given to the national (federal) government, it belongs to the state governments.  Along these lines people are citizens of the individual states as well as the national government. The uniqueness of the various states is evidence of the confederate influence.

II. OTHER KINDS OF GOVERNMENTS

Before our government was established under the Constitution, most nations had been organized in one of two ways.  These were unitary governments and confederate governments,

(or confederations).

1.  Unitary governments were those in which a central government acted directly upon the people.   Great  Britain  had a unitary government during this period and still has.

2.  Confederate governments were those whose parts are states rather than individuals. This meant that states that were members of a confederation kept full control over anything that had affected their own citizens and territory. States would unite in a confederation for certain purposes such as defense and the regulation of trade.

The government of the confederation would act upon the member states, not upon the citizens of those states. The government under the Articles of Confederationwas a confederation.  The United Nations is sort of a modern example of a confederation.  The southern states attempted to form a confederation during the civil war period.

III. THE CONSTITUTION AS A COMBINATION SYSTEM (Another view)

The Constitution established a system that is a combination of both unitary and confederate systems. We call it a federal system.

1.  It is like a   confederate  government    because it was ratified by state conventions, amendments were ratified by states, senators were originally chosen by state legislatures, and each state is represented by the same number of senators.  In addition the power of the national (central) government is limited         to certain responsibilities.

2.  It is like a   unitary  government  because the members of the House of Representatives are elected by the people from electoral districts of equal population.  Most important, it acts directly upon the people in fulfilling the responsibilities it has been given by the Constitution.

3.  The result of this complicated system is that both the federal (national) and the state governments have certain powers over individual citizens while sovereignty remains with the    citizens   . This system has many possibilities for disputes,  most of  which  come down  to  the simple question,    “WHICH  POWERS  HAVE  BEEN  DELEGATED  TO  WHICH  GOVERNMENT?”  This question was raised during ratification debates and has remained one of the central issues in American politics ever since.

IV. THE SUPREMACY OF THE FEDERAL GOVERNMENT

There were many disagreements at the Philadelphia Convention over what powers the federal government should have. However,  THERE WAS NO DOUBT  THAT  WHATEVER  THOSE  POWERS  WERE,  THEY WERE  SUPERIOR TO THOSE  OF  THE STATE  GOVERNMENTS.  This is the meaning of Article VI which reads,  “This constitution and the laws of the United States…shall be the   SUPREME   LAW  OF  THE  LAND   …”

The   SUPREMACY  CLAUSE    clearly indicates that federal laws are to be considered superior to any state laws with which they may conflict.

V. CONFLICT BETWEEN FEDERAL AND STATE POWER

A dispute about the power of the federal government over the states occurred in 1819 in the case of   McCULLOCH   v.  MARYLAND  . It involved a bank created by the federal government, the Second Bank of the United States. The Bank was extremely unpopular in the southern and western states. People argued that the Bank favored the interests of wealthy shippers and merchants, and that it gave the federal government too much power.  Attempts were made to prevent its operation. In 1818, the Maryland legislature placed a heavy tax on all banks not chartered by the state.  McCulloch, the cashier at the Baltimore branch of the Bank of the United States, refused to pay the tax and was sued by the state of Maryland. The state courts upheld the right of Maryland to tax the federal bank. McCulloch appealed to the Supreme Court.

McCulloch v. Maryland was one of the most important cases to be decided in the early days of the Supreme Court.  Two key issues were involved.

1.  DID CONGRESS HAVE THE POWER TO CREATE A BANK?

2.  COULD THE STATE OF MARYLAND TAX A BRANCH OF THE FEDERAL BANK?

The Supreme Court ruled that Congress did have the authority to create the bank. Chief Justice John Marshall said that this power was given to Congress by the   “NECESSARY  AND  PROPER”   clause. He upheld the reasoning Hamilton used earlier to persuade President Washington to sign legislation creating the First Bank of the United States.

Turning to the second issue, Marshall insisted that the authority of the federal government comes from the people rather than from the state governments.  The Constitution had not  been adopted by the state governments, but by the people gathered in state conventions.  Therefore, the Constitution gained its authority from the people.  For this reason, the federal government, in fulfilling the responsibilities given it by the Constitution and ultimately by the people, is superior to the state governments.  This is why the Framers included the supremacy clause, he argued.

Basing his argument on the supremacy clause, Marshall held that when a state law conflicts with a federal law, the federal law must be obeyed.  Maryland’s attempt to tax the federal bank was, therefore, illegal, for “the power to tax involves the power to destroy.” Marshall argued that if federal agencies could be taxed by the states, their existence would be dependent on the will of the states.  The American people, Marshall claimed, did not design their federal government to make it dependent on the states.

Marshall’s ruling in McCulloch v. Maryland clearly established the supremacy of the federal government within its sphere of authority and greatly increased the powers of Congress.

VI. THE POWER OF THE FEDERAL GOVERNMENT TODAY

Citizen’s make greater demands upon the federal government today than they did in the past. In addition, the United States’ political and military role in the world has greatly increased. As a result, the federal government now has far more power than anything the Founders could have imagined.

Since 1937, the Supreme Court has interpreted the Constitution to give increased power to the federal government. In some ways it can be argued that what the Anti-Federalists feared has indeed happened: the federal government now has power over many areas of people’s lives that used to be controlled only by the states or the people themselves.

There are two important points to remember about the question of federalism today:

[1]  Most of the decisions about how much power is to be left to the states are made by Congress, not by the Supreme Court on constitutional grounds.  This is because the Supreme Court has interpreted the Constitution to give the federal government more power than it had in the past.  Congress decides, on the basis of practical considerations, whether the federal or state governments should fulfill certain responsibilities the citizens think should be fulfilled.

[2]  In spite of the increased power of the federal government, most of the laws that affect us directly are state laws, including most property law, contract law, family law, and criminal law.

The power of the federal government is not limited to making laws. It is increasingly common for the federal government to attempt to influence state law by the use of federal funds. For example, for years (until the recent law change) the federal government has used highway funds to encourage the states to set the speed limit at 55 miles an hour. If a state did not agree to this, it did not receive the federal funds. By controlling money the federal government controls much more than just its enumerated powers of Article One section eight.

Nevertheless, it is always important to keep in mind, and not go beyond what the Founder’s intended. Their intention was summarized by James Madison, the father of the constitution, in Federalist #45:

“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.”

–James Madison, Federalist No. 45

Unit Five – Foundational Rights   [Fundamental Rights]

Today the Bill of Rights has become something it never was in the 18th and 19th centuries [1700’s and 1800’s].  It is perhaps the most important document protecting your rights from the abuse of power by the federal, state, and local governments.  The struggle to extend the protections of the Bill of Rights to all Americans has taken more than two hundred years.

1791 -  Bill of Rights                                                     This is a timeline of key events in our

1798 – Sedition Act                                                     journey of “equality.”  Know each item.

1803 -  Marbury v. Madison

1833 – Barron v. Baltimore

1857 -  Dred Scott v. Sanford

1865 – 13th Amendment

1866 – Civil Rights Act

1868 – 14th Amendment

1870 -  15th Amendment

1875 – Civil Rights Act

1896 -  Plessy v. Ferguson

1920 -  19th Amendment

1954 –  Brown v. Board of Education

1978  -  Univ. of Calif. v. Bakke

Topic # 24:  How Well Did the Bill of Rights Protect Individual Rights Before the Civil War?

Why did the Bill of Rights provide so little protection for individuals during the early years of the nation?

During the early period of our history,  the federal government  had very little to do with daily lives of Americans.  In fact, often the only contact people had with the federal government was with their postmaster.  Therefore, the Bill of Rights was of little importance to them.

The Bill of Rights did not place any limitations on the state governments.  Until the beginning of the Civil War in 1861, the state governments had almost unlimited authority over the rights of individuals.  If a state government violated a right listed in the Bill of Rights, you could not ask the federal government for help since the Bill of Rights did not limit the powers of the states.

The primary protections of individual rights were provided by the state constitutions, state bills of rights, and state civil and criminal laws.  If an individual or group violated the rights of other individuals protected by a state’s laws, they only sue in a state court.  Under this system rights were sometimes violated.  Although various groups were treated unfairly, the most notable were African Americans, Native Americans, and women.  Religious tests and property requirements for voting also violated the rights of white men.

Neither the federal or state bills of rights protected many of the same rights for women that they did for men. Finally, the Constitution itself permitted slavery to continue.  The federal government even made money on the slave trade by placing import taxes on slaves brought into the country.  Since the Constitution protected an individual’s right to own property, it protected the right to own slaves who were considered at the time to be a form of property.

How well did the Bill of Rights protect individuals from the federal government?

James Madison had warned that written guarantees of rights might be merely “parchment barriers.”  Just because rights are listed on a piece of paper does not mean that rulers will not violate them.  Madison’s warning soon proved to be true.  In 1798, Congress passed the Sedition Act which violated the right to freedom of expression.  The circumstances which led to this act were as follows.

During the 1790s,  soon after the new government was established, rival political parties developed:

*  The Federalists, led by Alexander Hamilton, favored a strong federal government. They also wanted to renew ties with Great Britain which                                                                       was at war with France.

*  The Republicans, led by Thomas Jefferson, wanted less power in the federal  government and more power in the state governments.  They supported

France in its war with Great Britain.

The Republicans criticized the Federalists for being in favor of the British instead of the French who had helped the United States gain independence from British rule.  They also favored France because its people were overthrowing their king and attempting to establish a republican form of government.

In 1796, John Adams, a Federalist, was elected president.  The nation prepared for war with France.  Republicans severely criticized the government’s actions  in speech and  the press.  The Federalists were furious at such criticism.  They claimed that Jefferson’s and the other Republican’s favoring France during a national emergency was dangerous to the unity of the nation.  Congress passed the Sedition Act of 1798.  This act made it a crime for anyone to engage in “false, scandalous and malicious” criticism of the government or its leaders.  However, criticism that could be proven to be true could not be punished.

Federalist government officials used this act against their Republican critics.  Twenty-five Republican printers and writers were arrested.  Fifteen were indicted and ten were convicted, fined, and imprisoned for as long as nine months.

The Republicans claimed that the Sedition Act violated the First Amendment, but the act was never ruled upon by the Supreme Court.  While the Republicans accused the Federalists of instituting a “reign of terror,”  this was probably an overstatement.  The success of the Republicans in the 1800 elections  suggests that the Sedition Act was not as effective as the Federalists had hoped in silencing their critics.  In the so-called “revolution of 1800,” Thomas Jefferson was elected president  and the Republicans gained control of Congress.  It is worth noting that the attacks under the Sedition Act on the rights of the citizens to criticize the government were not eliminated by the courts, but through the election of a new government that did not support the act.

Marbury v. Madison [1803]

In 1803, during Jefferson’s first term as president, the Supreme Court made a decision in the case of Marbury v. Madison that is of great importance in the history of individual rights in America.  This decision clearly established the Supreme Court’s power of judicial review over the the other branches of the federal government.  Judicial review is the power of the court to decide whether laws and actions of the government are not allowed, it orders that the law or action be considered null and void.  A law that is null and void cannot be enforced.

It is clear that the Constitution gives the Supreme Court the power of judicial review over the state governments.  Whether it gives the  Court this power over the federal government is less clear.  The Supreme Court claimed this power in its opinion in the case of Marbury v. Madison.

From the time of the adoption of the Constitution to the Civil War, the Supreme Court only used its power of judicial review over the federal government  two times.  The first was in the case of Marbury v. Madison.  The second was in the case of  Dred Scott v. Sanford [1857]  which helped bring about the Civil War.  We will discuss this later.

The Supreme Court did review numerous state and local laws during this period.  One of the most important of these was in the following case which dealt with the question of whether the Bill of Rights applied to the states.

Barron v. Baltimore [1833]

Barron v. Baltimore [1833] was one of the first important cases in which the Supreme Court used its power of judicial review over the actions of a state government.  In this case the Supreme Court decided  that the Bill of Rights did not extend to actions by state governments.

The case involved a man who claimed that people working for the city government of Baltimore had left his wharf useless by diverting the stream that flowed under it from its natural course.  When the city refused to compensate him, the man went to court and claimed that his rights under the Fifth Amendment had been violated.  This amendment says that the government cannot take a person’s property for public use without paying a fair price for it.  The man argued that by making his wharf useless and refusing to pay for it, the city had violated his rights under the Fifth Amendment.

The Supreme Court ruled that the Fifth Amendment was written only to protect individuals from violation of their rights by the federal government, not the state governments.  State constitutions were meant to protect individuals from actions by state governments.

The decision in Barron v. Baltimore was of major importance because of Chief Justice Marshall’s statement that the Framers of the Bill of Rights did not intend it to apply to actions of state governments.  The Bill of Rights had been added to the Constitution because of widespread fear that the powerful new federal government would be such a threat to individuals rights.  Its only purpose was to limit the actions of the federal government, not those of the states.

The decision in Barron v. Baltimore did not mean people had no protection when state governments violated their rights.  It meant, however, that citizens must look to their state constitutions to protect those rights.

During the nineteenth century [1800s], state courts frequently declared state laws unconstitutional when they violated individual rights.  However, not all rights were protected under each state constitution.  For example, one state constitution might prohibit ex post facto laws, while another would not.  One state might specifically protect freedom of speech, while another had no such guarantee.

In addition, on many occasions,  state governments violated rights.  Sometimes this was the result of the wishes of the majority of citizens.  At other times, it was because a small but powerful minority was influencing the state government.

For example,  the constitution of each state in New England included provisions similar to the Fifth Amendment to protect property from being taken by the government without fair compensation.  Nevertheless, when railroad companies became powerful in New England, state legislatures often violated the property rights of their citizens.

The state governments took land “for the public good’” giving the farmers who owned it only for a fraction of what it was worth.  The states turned the land over to railroad companies in exchange for stock and free rail passes for all legislators and governors.

When citizens took the cases to the state courts, judges often sided with the state at the individual’s expense.  When courts did not rule the way powerful railroad companies wanted, they influenced legislators to change the laws to add more judges to the courts. Then the companies pressured governors to appoint judges favorable to their wishes.

In southern states, most blacks were slaves and were not protected by their state or federal constitutions.  They were merely regarded as property and had no rights.  Slaves and their children could be sold at any time.

Although slavery was abolished in the northern states by 1805,  free blacks living in both the North and South did not enjoy full rights.  As an 1826 editorial in an African American newspaper in Baltimore charged:

We reside among you…surrounded by the freest

people and most republican institutions in the

world,  but we enjoy none of the immunities of

freedom….Though we are not slaves, we are not free.

Dred Scott v. Sanford [1857]

The U.S. Supreme Court refused to protect freedom for African Americans in 1857 in the Dred Scott case.  In this case,  the Court formally  declared that neither free blacks nor slaves were citizens of the United States.  It denied Congress the power to prevent slavery from entering the western territories.  This decision prevented Congress from stopping the further spread of slavery by limiting it to states where it already existed.  Some believe that the Dred Scott decision was one of the principal causes of the Civil War.

How was the ideal of equality used in the fight against slavery?

The ideal of equality  is contained in the familiar phrase from the Declaration of Independence,  “We hold these Truths to be self-evident, that all Men are created equal.”  In the years before the Civil War, many Americans, most notably free blacks and abolitionists, argued that this ideal of equality was the foundation of American government.  They used this ideal to support their argument that racial discrimination and slavery were not permissible in the United States.

Despite this argument, the Supreme Court and many state courts upheld racial discrimination.  However, some state legislatures did not.  In Massachusetts, free blacks and abolitionists tried to get their state supreme court to declare segregated schools unconstitutional. When the court ruled in favor of segregation, the blacks and their supporters went to their state legislature for help.  They claimed that the court had violated their state constitution’s guarantee of equality.  The state legislature was persuaded by their arguments and passed a law prohibiting segregation in the public schools of Massachusetts.

The Civil War

The Civil War began in April of 1861.  It was a result of years of conflict between the states over political power, economic interests, and social issues such as labor and slavery.  As a result of this conflict, the South claimed it had the right to secede from the Union and form a new government.  The southern states created their own government, the Confederate States of America.  Jefferson Davis was elected president.  In his inaugural address he said, “All we ask is to be let alone.”

The federal government refused to recognize the South’s right to secede.  For President  Abraham Lincoln,  and most northerners, the primary purpose of the Civil War was to preserve the Union.  Lincoln had said that he believed all African Americans should have the natural rights described in the Declaration of Independence,  and there is no doubt that his views on slavery did play a role in the South’s decision to secede.  However, in 1862 he also said:

My paramount object…is to save the Union….If I

could save the Union without freeing any slave, I

would do it:  and if I could save it by freeing all the

slaves, I would do it: and if I could do it by freeing

some and leaving others alone, I would also do that.

The Emancipation Proclamation

Lincoln was true to his word.  In order to preserve the Union, he issued the Emancipation Proclamation to take effect in January 1863.  This act freed the slaves in the southern states which were still fighting the North and were not under federal control.  It did not free the slaves in any state controlled by the federal government.

There had always been some sentiment in the United States for freeing the slaves.  The American Colonization Society, founded in 1816, had advocated the gradual emancipation of slaves coupled with their return to Africa.  The American Anti-Slavery Society was founded on January 1, 1831.  As the war progressed, the movement to end slavery in the United States gained support.  The Society of Friends [Quakers] and various other Christian groups were active in attempting to abolish slavery.  Many saw the war as an opportunity to achieve this goal.  The result was that after the defeat of the south,  amendments were added to the Constitution to eliminate slavery throughout the United States. Unfortunately,  it has taken more than a hundred years since the Civil War to come close to realizing the goal of equality for all Americans.

Throughout the next few lessons keep the following statement from Frederick Douglas in mind.  It sheds a great deal of light on the struggle faced by the freed slaves.

“Though slavery was abolished, the wrongs of my people were not ended. Though they were not slaves they were not yet quite free.  No man can be truly free whose liberty is dependent upon the thought, feeling, and action of others, and who has himself no means in his own hands for guarding, protecting, defending and maintaining that liberty. … The law on the side of freedom is of great advantage only where there is power to make that law respected.  I know of no class of my fellow men, however just, enlightened, and humane, which can be wisely and safely  trusted absolutely with the liberties of any  other class. …

And yet the government had left the freedman in a worse condition. … It felt it had done enough for him. It had made him free, …

He was free from the individual master, but the slave of society.  He had neither money, property, nor friends. …”          [Frederick Douglas, Autobiography - 1882]

Topic #25:  Amendments Added to the Constitution_to Protect the Rights of African Americans

Political Parties of the Times

In order to understand some of the conflicts surrounding this period of history,  it is necessary to know something about the two most prominent political parties.  These were the Democratic and Republican parties.  The Democratic party was the former Republican (Democratic-Republican) party begun by Thomas Jefferson.  The Federalist party was defeated in the election of 1800 and it ceased to exist a  few years later.

The new Republican party was an anti-slavery party formed in 1854.  It nominated its first presidential candidate, John C. Fremont, in 1856.  He ran against James Buchanan, the Democratic candidate.  In this election,  Fremont ran on a platform that would have prohibited slavery in the territories.  Fremont was supported by  the North and Buchanan by the South.  Buchanan won.

Four years later,  Abraham Lincoln ran as a Republican on a platform which allowed slavery in the states in which it already existed, but prohibited slavery in the western territories.  He defeated Stephen O. Douglas, the Democratic candidate, and became president.  With the admission of Minnesota and Oregon to the Union in 1858-59, there were eighteen free states and fifteen slave states.  From this time through the period following the Civil War, the Republican party controlled both the executive and legislative branches of the federal government.

The Reconstruction Period

The period after the Civil War in which states that had seceded were being brought back into the Union, is called Reconstruction.  During this time the Republican party dominated the federal government as it done during the war.  The Republican Party gained most of its strength from the northern states.  The Democratic Party was strongest in the South.  Many of the leaders of the Confederacy had been members of the Democratic Party.

The Civil War Amendments

The Civil War ended slavery in America after it had existed for more than two hundred years.  Shortly after the war,  three amendments, commonly called the Civil War Amendments,  were added to the Constitution.  As you shall see,  they were for both moral and political reasons.

*  The 13th Amendment abolished slavery “within the United States, or any place subject  to their jurisdiction.” 

*  The 14th Amendment, among other things,  made all persons born or naturalized within the United States citizens.  It also prohibited any state from making any law that     limited the rights of citizens.

*  The 15th Amendment prohibited national and state governments from denying citizens the right to vote because of their race, color, or status as former slaves.

The first post war session of Congress was held in December 1865.  Congress and many state governments immediately  passed laws designed to protect the rights of blacks.  When Congress tried to implement these laws vigorously, its efforts were strongly resisted by whites, especially in the South,  who opposed racial equality.  Eventually public support for protection grew weaker and, by the late 1870s, the Civil War Amendments became useless as a tool for protecting their rights.

What was the effect of the Thirteenth Amendment?

The Thirteenth Amendment, ratified in 1865, was intended to end slavery and the unfair treatment of African Americans throughout the nation. In reality it did very little.

Several northern states did pass laws to expand black’s rights. In 1865, both Illinois and California passed laws allowing blacks to testify against whites in trials. Massachusetts passed a law prohibiting racial discrimination in public accommodations. In 1868, both Minnesota and Iowa passed laws giving blacks the right to vote.  However,  not one  southern  state passed a law protecting the right of African Americans to vote or enjoy any of the other political, economic,  and social rights held by most other citizens.

Some states had refused to ratify the Thirteenth Amendment.  Others demanded that the federal government pay their citizens for the loss of their slaves.

Although some Southerners were in favor of freeing the slaves, many were not.  Slavery had accustomed Southerners to seeing blacks as inferior.  Plantation and farm owners had grown used to slaves as a cheap form of labor.

Many  northern  businesses were interested in cheap labor.  White workers had been organizing into labor unions and were demanding better pay and working conditions.  Owners of factories and other businesses saw the newly freed slaves as form of cheap labor.

Some white workers in the North were afraid that blacks  might compete with them for jobs.  They wanted  the blacks to stay in the  South  and West where they would not threaten their jobs. The obvious result was more racial tension.  The hardest hit were, again, former slaves.

What were the Black Codes; why are they important?

After the Civil War, the federal government had kept Union troops in the South to protect the newly freed slaves.  Southern legislatures passed laws called  black   codes in an attempt to convince the federal government that they would treat African Americans fairly. Supposedly, these laws protected the rights of blacks.  For example, they protected the rights of  blacks to marry,  own property,  travel,  work for pay,  and  sue in court.

In fact, the black codes severely limited these rights. African Americans could only marry other African Americans.  They could own property, but few white people would sell to them.  They could travel, but only after dark in baggage cars of trains.  They could work for pay, but few people would pay them fair wages.  They could sue for damages in court, but their right to sue white people was meaningless because cases were tried by white judges and juries were hostile to blacks.

Schools for black children were almost always inferior than those for white children.  Blacks could only go to school with other blacks.  People were discouraged from starting black schools and sometimes such schools were burned.  Blacks found with books were sometimes whipped.  White supremacists did not want blacks to get an education.

Vigilante groups of whites such as the Ku Klux Klan intimidated, terrorized, and sometimes killed black people and whites who helped them claim their rights.  African Americans could rarely look to their local or state governments for protection from such treatment.  Law enforcement agencies and the courts were biased against blacks and whites who sympathized with them.  Blacks were tried by all-white juries who rarely decided cases in their favor no matter what the facts were.

When the Union troops withdrew, a reign of terror began in the South. Blacks trying to gain their rights were assaulted, terrorized, and often lynched.  A white state senator who was sympathetic to the cause of blacks was found with his throat slit.  Others were lynched with signs hung around their necks saying such things as “Beware, ye guilty, both white and black.”

The black codes did just what they were intended to do. They kept blacks from developing political power.  Black codes clearly placed the political power of southern states in the hands of white men.

Why did Congress pass the Civil Rights Act of 1866?

It became clear to Congress that the 13th Amendment was not enough to protect the rights of African Americans. In an attempt to help blacks, Congress passed theCivil  Rights  Act of  1866 over the veto of President Andrew Johnson.

Despite the passing of this legislation, it had little effect.  This was because the president refused to enforce the law and the Supreme Court refused to listen to people who complained that their rights,  supposedly protected by the Civil Rights Act, had been violated.

Many political leaders in the North and elsewhere were outraged by the treatment of African Americans in the South.  Republicans were also concerned that their political power  in the federal government might be endangered by new Democrats elected to Congress by the southern states.

As a result of these concerns, Republicans in Congress drafted the 14th and 15th Amendments to be added to the Constitution.  These amendments were written for both moral and political reasons.  Many Republicans strongly believed in protecting the rights of blacks.  For this reason, they argued that only if southern blacks had the right to vote would the officials of their state and local governments be responsive to them and protect their rights.  In addition to protecting the rights of African Americans, Republicans were interested in increasing the political power of blacks in southern states.  This was intended to keep the Republican party in power in the federal government and to limit the growing power of the Democratic party.

The 14th Amendment

Seeing the failure of the 13th Amendment and the Civil Rights Act of 1866, to protect blacks, Congress drafted the 14th Amendment.  This Amendment drafted in 1868, contained several provisions designed to reduce the problems of African Americans.   These provisions are set forth below.

* Defining citizenship. “All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside.”  (So much for the Dred Scott ruling.)  This made it clear that blacks who met these requirements were citizens.

* Rights of citizens. “No state shall make or enforce any law  which shall abridge  the privileges or immunities of citizens of the United States.”   This clause was intended to forbid states from violating the rights of all citizens, regardless of their race.

* Due process of law. “nor shall any state deprive any person of life, liberty, or property, without  due  process of law.”    This means that the government must govern fairly and according to the law and not in any arbitrary way.  The government must treat people fair, both in the content (substance) of the laws it passes, and in the manner (procedures) in which it carries out and enforces those laws.

* Equal protection of the law. “…nor shall any state…deny to any person within its jurisdiction the   equal  protection of the laws.”  This clause was intended to prevent state governments from unfairly discriminating against their citizens.

As you shall see,  this amendment was intended to prevent discrimination against blacks and to guarantee  them the rights of equal citizenship.  However,  it did not serve this purpose until almost 100 years later.

Two clauses of the 14th Amendment have been considered by scholars to be among the most important in the entire Constitution.  These are the due process and the equal protection clauses.  These clauses have been used by attorneys and the courts for many years to protect individual  rights from being violated by state and local governments.  We will look at these clauses in the next few   lessons.

The ratification debate over the 14th Amendment was filled with conflict. President Johnson and others who did not want to punish the South worked to defeat it.  People who did not want blacks to gain equal rights promoted racial fear and hatred to develop opposition to the amendment.  Nevertheless,  the 14th  Amendment was passed in 1868 over the objections of ten states which refused to ratify it.

The Republicans had gained their objective and they dominated Congress. Strong laws were passed by Congress to enforce the 14th Amendment.  During the late 1860s and 1870s, state legislatures and courts in both the North and the South expanded the  rights of blacks and enforced laws against  discrimination.

Why was the Fifteenth Amendment adopted?

The failure of the 14th Amendment to adequately protect the rights of black citizens led to the adoption of the 15th Amendment in 1870.  This amendment contains the following two sections:

Section 1.  The right of citizens of the United  States to vote shall

not be denied or abridged by the  United  States or  by  any  state

on  account of race, color, or  previous  condition  of servitude.

Section  2.  The Congress  shall  have  the  power  to enforce

this  article by  appropriate  legislation.

This amendment was clearly intended to protect the right of African Americans to vote.  Like the other Civil War Amendments it was passed for both moral and political reasons.  People believed that black citizens should have the same rights as all other citizens. The immediate effect of this amendment and the legislation passed to support it was that, during the late 1860s through the 1880s large numbers of blacks voted.  They gained considerable political power and they used it to protect their rights.   [Ulysses Grant’s margin in the popular vote in 1868, approximately 300,000 votes, was the result of the black vote being overwhelmingly Republican.]

Eventually, however, after the Reconstruction period, southern states passed laws that destroyed the political power of blacks in the South.  The following are the major types of laws that were used to eliminate blacks from participating in politics in southern states.

* Poll taxes. Some states passed laws that required citizens to

pay a tax before voting.  Since most blacks were desperately poor, these

taxes greatly  reduced the number who could vote.

* Literacy tests. Some states required men to take tests proving

they could read or write before they were allowed to vote.  Since most

southern blacks had been prevented from learning how to read or write,

these tests denied them the right to vote.  Furthermore,  these tests were

administered by whites who prevented even literate blacks from passing.

* Grandfather clauses. Laws were passed that allowed people in

the South to vote, even if they could not read or write, if their grandfathers

had voted.  Since no blacks had grandfathers who had voted, these laws

denied blacks the right to vote.

How well did the Civil War Amendments protect the rights of African Americans?

In the years following the Civil War, there was less and less talk about the rights and living conditions of African Americans (people tend to tire of issues, even moral issues they should not tire of — they simple do not have the “stick-to-it-ness” on issues that do not affect them in a significant way).  Unfortunately, the federal Bill of Rights offered little relief against injustice.

You may remember that the 14th Amendment contains the clause, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  The Supreme Court was asked in the  Slaughterhouse  Cases of 1873 to rule that this clause protected the rights listed in the Bill of Rights from violation by state governments.  In a 5 to 4 ruling, the Supreme Court refused to do so.  The states were left with power to continue to pass laws that violated the rights contained in the Bill of Rights.  As a result of the court’s opinion in these cases, the privileges and immunities clause of the 14th Amendment has been of no use in protecting individual rights to this day.

Congress passed the Civil  Rights  Act  of  1875 to give the federal government the power to enforce the protections of citizens’  rights  under the 14th Amendment.  However, this act was not enforced by the executive branch.  Later,  the Supreme  Court declared the Civil Rights Act unconstitutional. [There were 5 cases where blacks had been refused equal accommodations or privileges, allegedly in defiance of the Civil rights Act of 1875.  That act was declared invalid for protecting social rather than political rights.  The Court held that the 14th Amendment prohibited invasion by the states of civil rights, but did not protect the invasion of civil rights by individualsunaided by state authority.  This ruling virtually ended for 80 years federal attempts to protect blacks against discrimination by private persons.]

Rutherford B. Hayes of Ohio was the Republican candidate for president in 1876.  He ran against the Democratic candidate,  Samuel Tilden of New York.  Hayes won the election with a minority of the popular vote (4,036,572 [48%] to 4,284,020 [51%],  but a majority of the electoral vote (185 to 184).

Hayes (as did Tilden) had campaigned on the promise that he would remove the remaining federal troops from the South.  In 1877, soon after he was elected, he appointed a former Confederate leader to his cabinet.  It was a symbolic gesture, but a clear signal.  The president and the majority of Americans believed it was time to get on with expanding the economy and territory of the United States.  Reconstruction was over.

Hayes and his supporters did not want to spend more time and money on the former slaves.  They would let southern leaders handle their own problems (Home Rule it was called — more like “homered” rule).  As the president told African Americans on a supposed “good will” tour of the South, “Your rights and interests would be safer if this great mass of intelligent white men were left alone by the federal government.”

Hayes refused to enforce the 14th and 15th Amendments.  From this time forward, government officials and the majority of Americans whom they represented failed to protect the rights and promote the welfare of black citizens.  One result of this failure was that African Americans learned to look to themselves and their own  community institutions for self-help.

Especially ministers (pastors), but also teachers, and community leaders became the backbone of the continuing struggle for the rights of African Americans.  They formed the leadership of the black community for the next one hundred years.

Nevertheless, despite their limited effectiveness, the Civil War Amendments (13th, 14th, and 15th) had created a constitutional basis for expanding the rights of individuals and minorities.  Down the road the 14th Amendment will play a huge role in protecting all Americans, but especially minorities.

The continued discrimination against women.

During the time Congress was considering the Civil War Amendments  leaders of the women’s movement asked that the right to vote be expanded to include women.  These leaders, including Susan B. Anthony, hoped their long support of the anti-slavery cause would be rewarded.  Their appeal was denied.  Male antislavery leaders refused to extend the vote to women.  Instead, they specifically included the term “male citizen”  for the first time in the Constitution.  The 14th Amendment prohibits any state from denying the right to vote to males.

The omission of women in the 14th Amendment did not deny states the right to grant women the right to vote.  In 1869 the Wyoming Territories gave women this right.

In 1875 the Supreme Court ruled that being a citizen did not automatically give a person the right to vote.  States could deny this right to women if they chose. It was not until 1920, fifty years after black males won the right to vote, that women were guaranteed that same right under the 19th Amendment.

Topic # 26:  The 14th Amendment and the Equal_Protection of the Laws

Purpose of the Lesson

The guarantee of the right to equal protection of the laws in the 14th Amendment made an especially important change in the Constitution.  For many years, this guarantee meant very little because of the continuing prejudice against blacks, women, Native Americans, and other minorities. However, since 1954 the equal protection clause has had a significant effect on reducing unfair discrimination.

When you finish this lesson, you should be able to explain the difference between the two uses of the term equality. You should also be able to explain how the use of the equal protection clause of the 14th Amendment has changed from its adoption to the present day.

The idea of equality

The natural rights philosophers argued that all people have an equal right to life, liberty, and property.  Thomas Jefferson included the idea of equality in the Declaration of Independence which states that all people are created equal, they have certain unalienable rights, and it is the purpose of  government to protect these rights.  Despite this long-standing belief in equality, however, the original Constitution made no direct  mention of equality.

The idea of equality strongly influenced the American Revolution.  Americans rejected monarchy with its unequal classes of royalty, nobles, and commoners, and established a government by the people. The government they created was meant to promote individual rights and the common welfare, not the interests of special privileged groups.  The Constitution even forbids the use of titles of nobility.

The fact that Americans often contradicted the idea of equality is well known. Slavery and the status of women were among the most notable examples of the unequal and unfair treatment of persons during this period.  However, compared to other nations of the time, there was a high degree of social equality in America.

As you have learned, public sentiment against slavery eventually grew so strong it contributed to the outbreak of the Civil War and the writing of the Civil War Amendments [13th, 14th and 15th Amendments]. Most of the authors of those amendments had fought against slavery and racial discrimination.  They believed that such practices violated the principle of equal rights.

What type of equality is protected by the Fourteenth Amendment?

The 14th Amendment solidified the idea of equality in the Constitution with equal protection clause. It says: “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”   This addition made an important change in our constitutional system.  The extent of that change, however, depended on how equality was defined. **

The authors of the 14th Amendment did not intend to protect a right to equality of condition. This would mean that the government would be responsible for guaranteeing,  for example, that all people were equal in the amount of property they possessed, their living standards, the medical care they received, their education, and their working conditions.

Few  Americans at this time thought it was desirable for the government to try to establish equality of condition.  They realized that had different abilities and talents.  Some are more resourceful,  motivated, strong, or intelligent than others.  Most Americans favored a competitive society in which individuals had the freedom to use their talents to advance as far as they could.  They knew that differences among people would eventually lead to some  enjoying greater success than others.  The wealth of society would not be distributed equally; some people would become rich and some poor.   However,  unlike most  other countries of the time where rigid class systems denied most the opprtunity to better themselves.

____________________________________________________________________________

** At the time of its ratification, in 1868, this clause, like the rest of the 14th Amendment, was intended to prevent discrimination against African Americans and to guarantee them the rights that go along with equal citizenship. Unfortunately, it took almost 100 years before it began to truly serve its purpose.

____________________________________________________________________________

The authors of the 14th Amendment were interested in creating a society in which all people were treated equally by the law.  This is why the 14th Amendment contains the phrase “equal protection of the laws.”  This meant that no group was to receive special privileges nor be deprived of certain rights under the law.

However, the 14th Amendment does not prevent legislatures from passing laws that treat some people differently when it is reasonable and fair to do so.  For example, it does not prevent a legislature from passing a law granting the privilege of a driver’s license to those over 16,  and thus denying the privilege to drive to those under 16.

The equal protection clause is intended to prevent legislatures from passing laws that unreasonably and unfairly favored some groups over others.  For example, as it is currently interpreted, it prevents legislatures from establishing certain schools for white students and other schools for non-white students.

Changing interpretations of the meaning of “equal protection of the laws”

As you have learned, the promised protection of rights under the 14th Amendment did not last long.  During Reconstruction former slaves used their right to vote to achieve a considerable amount of political power.  They were able to gain fairer treatment by their state governments.  However, by  the late 1870s,  federal troops protecting blacks and their supporters were withdrawn from the South.  Southern whites soon regained control of the state governments in the South and reduced blacks to second-class citizenship.

Southerners quickly passed laws (“Jim Crow”  laws) to establish racial  segregation.  These laws required blacks to use separate schools and other public facilities.  The states claimed that these laws did not violate the equal protection clause because the separate facilities were supposedly equal.  Many people disagreed, claiming that such laws were meant to mark African Americans as an inferior group, not fit to associate with whites.

Plessy v. Ferguson [1896]

In the case of  Plessy  v.  Ferguson,  the Supreme Court established the  separate but equal doctrine that was to deny blacks equal rights for almost sixty years.  Louisiana had passed a law requiring railroad companies to provide separate but equal cars for white and black passengers.

Black leaders claimed this law violated their rights under the equal protection clause of the 14th Amendment.  They decided to challenge the constitutionality of this law in court.  They chose Homer Plessy to make their test case.  he bought a ticket but insisted on riding in the “whites only” car.  Plessy was arrested and convicted. He appealed his case to the Supreme Court.

The question before the Supreme Court was whether the Louisiana law violated the equal protection clause.  The Court said that to separate the races did not itself suggest one race was inferior to the other.  Since the law required that blacks and whites be provided equal facilities, the Court concluded no unfair discrimination had occurred.  The Louisiana law was constitutional.

Not all members of the Court agreed with the majority. Justice John Marshall Harlan wrote a strong dissenting opinion.  He argued that the segregation law, passed by whites who controlled the state government, clearly was unfair to blacks.  The law implied blacks were inferior.  Therefore, it was a violation of the 14th Amendment.  He wrote, “Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”

As a result of the majority decision in Plessy  v. Ferguson,  segregation became even more widespread in the South.  In most states, there was no attempt to provide educational equality. Black schools were inferior to those provided for whites and black teachers were paid far less than whites with comparable training and experience. As a result, generations of black children received an inferior education.

The Struggle for equality

Despite the way the 14th Amendment had been interpreted and applied, the principle of equality under the law remained alive.  Year after year, many Americans fought to make reality live up to the ideal. For years they received little help from the federal government.  The Court continued to uphold racial segregation.  The other branches also failed to prevent unequal treatment of blacks, women, and other groups suffering from unfair discrimination.

At last, in 1920 the 19th Amendment was ratified, giving women the right to vote throughout the United States.  In 1924, Congress passed the Citizenship Act granting Native Americans full citizenship rights for the first time.  In 1947, the report of President Truman’s Committee on Civil Rights called for an end to racial discrimination in education, housing, employment, voting, and all other areas of American life. And finally, in 1954, a historic case set the stage for extending the equal protection of the law to all people denied this right in the past.

Brown v. Board of Education [1954]

It was not until 1954 that the Supreme Court overturned its decision in the Plessy v. Ferguson case.  This landmark decision came in Brown  v.  Board  of  Education.

Linda Brown lived five [5] blocks from a neighborhood elementary school.  Because of her race, she was forced to attend the school for black children which was twenty-one [21] blocks from her home.  Her parents sued the school board of Topeka, Kansas, for denying their daughter admission to the neighborhood school for whites.

The Browns were represented by an attorney for the National Association for the Advancement of Colored People  (N.A.A.C.P.), an inter-racial group founded in 1909.  Thurgood Marshall, who later became the first black justice of the Supreme Court, argued the case.  He said that segregated public schools violated the equal protection clause because they placed black children at a disadvantage.

In hearing the argument in this case, the Supreme Court asked the attorneys to address themselves to two questions:

1. What historical evidence was there that the authors of the 14th Amendment intended it to prohibit segregation in public schools?

2. If the intention of its authors is not clear, was it within the power of the Court to abolish public school segregation if the Court concluded that the state was                           violating the equal protection clause of the 14th Amendment?

As you can see, the justices used the ideas about how to interpret the Constitution discussed earlier in the course. In deciding to overrule  Plessy v. Ferguson, they agreed to reject the “separate but equal”  theory which had stood for over fifty years.

The Supreme Court decided that whether the authors of the 14th Amendment intended it to prevent racial discrimination in public schools could not be determined.  They also decided that it was within the power of the Court to abolish discrimination on the basis of the principles of the equal protection clause.

Chief Justice Earl Warren delivered the  unanimous decision of the Supreme Court on May 17, 1954.

To separate [children] from others of similar age and qualifications solely

because of their race generates a feeling of inferiority as to their status

in the community that may affect their hearts and minds in a way unlikely

ever to be undone….Whatever may have been the extent of psychological

knowledge at the time of  Plessy  v.  Ferguson, this finding is amply

supported by modern authority…. Any language in Plessy v. Ferguson

contrary to this finding is rejected….Separate educational facilities are

inherently unequal….[We] hold that the plaintiffs…[are] deprived of the

equal protection of the laws  guaranteed by the Fourteenth Amendment.

Although it met with sharp resistance, the Court’s decision in the  Brown case marked a major turning point in American history.  During the next decades, the Supreme Court struck down cases of segregation in other areas.

The expanded protections under the Fourteenth Amendment

In recent years, the equal protection clause has been expanded to prevent unfair discrimination on the basis of age, sex, or ethnic background as well as race.  Decisions of the Court which have expanded the protections of the 14th Amendment have been reinforced by laws passed by Congress and policies instituted and enforced by the executive branch.  For example, President Eisenhower ordered federal troops into the South to protect black students attempting to integrate schools.

Meanwhile, Congress passed a series of civil rights bills including the Civil Rights Act of 1957 and 1964 and the Voting Rights Act of 1965.  In 1968, the Equal Employment Opportunities Act became law.  It has been used to prevent job discrimination on the basis of sex or age.  The Education Act of 1972  [Title IX] has banned discrimination on the basis of sex in any educational program that receives federal aid.

How should the effects of past discrimination be remedied?

Conflicts continue over the meaning and application of the right to equal protection of the laws provided by the 14th Amendment.  Some argue that the government is not going far enough to protect the rights of individuals deprived of them in the past. Others say the government is going too far and is applying the equal protection clause in ways which actually violate it and were never intended by those who wrote and ratified it.

Many people argue that just eliminating the official, legal barriers to equal opportunity is not enough. The effects of past discrimination and continued prejudice against women, racial and ethnic minorities, and others still exist.  This history of prejudice and established patterns of discrimination handicap the ability of people to take advantage of their new-found opportunities provided by law.  It is not enough, they argue, to sit back and passively wait for the effects of past legal discrimination to disappear.  They believe something positive, or affirmative, must be done to further the goal of equality of opportunity.

As a result of such concerns programs which went beyond just removing legal barriers to equal opportunity were instituted. These programs were calledaffirmative action.  They include the following:

*           Aggressive recruitment programs -  to encourage women and minorities to apply for opportunities when they occur.

*           Remedial programs -  such as special education programs in elementary and  secondary schools.

*           Preferential treatment programs – designed to compensate for the effects of past discrimination.

Critics of some affirmative action programs, particularly those calling for preferential treatment, have claimed that these programs violate the right of individuals to equal protection of the law guaranteed by the 14th Amendment.  They point to the long struggle to establish individual rights as opposed to group rights.  Some argue that today special programs or treatment should be based on educational or economic need, not race or gender.

Today few people disagree with the general goals of affirmative action programs.  Most agree that something should be done to help groups unfairly treated in the past. Most agree to support recruitment and  remedial programs.  Conflicts continue over preferential treatment and the use of quotas.

The following court case illustrates the difficulty of designing reasonable and fair programs to promote the goals of affirmative action while not violating the right of the individual to equal protection of the law.

Regents of the University of California v. Bakke [1978]

As a part of its affirmative action program, the Medical School of the University of California at Davis had set aside sixteen places for minorities out of its entering class of one hundred.  Alan Bakke, a non-minority applicant, had been denied admission even though his test scores were higher than most of the minority applicants that were accepted.

Bakke sued in the state courts claiming that the admission policy of the university denied him the right to equal protection of the laws guaranteed by the 14th Amendment.  The California Supreme Court agreed with Bakke’s claim.  The university appealed the case to the  U.S. Supreme Court which also ruled in Bakke’s favor in a 5-4 decision.  Bakke entered the medical school.

Four of the Five majority justices said the university quota system violated the Civil Rights Act of 1964 which prohibited excluding anyone on the basis of race from any program receiving federal funds. (The university received federal funds.)

The fifth justice, Lewis F. Powell, concluded that the racial quota was a violation of the equal protection clause of the 14th Amendment.  Powell’s opinion contained several points:

* He stated that it was a violation of the Constitution to place the burden of

remedying the effects of past discrimination on individuals who had

nothing to do with such discrimination.

* He rejected quotas.

* He approved the consideration of race as one factor, among others, to take

into account in an admissions policy meant to promote diversity in the

student body.  Such diversity is an acceptable goal for universities.

The four dissenting members of the Supreme Court claimed that the university quota system was a reasonable way to help remedy the effects of past discrimination against racial and ethnic minorities.

What considerations are presently used to deal with affirmative action programs?

Since the  Bakke decision in 1978, a number of legal and constitutional guidelines have been developed to determine what affirmative action programs are acceptable under the equal protection clause of the 14th Amendment.

1.  Remedial programs. Eligibility for such programs must be based on educational or economic  need.

2. Strict enforcement of non-discrimination. All affirmative action programs must strictly enforce the prohibition against discrimination on the basis of race, sex, religion,     nationality, and age.

3. Recruitment programs. It is okay to recruit members of groups formerly treated unfairly.

4. Preferential treatment. Programs that give special consideration upon the basis of sex, race,  or religion are acceptable in deciding between applicants who are equal in all relevant respects.  For example, a college can choose to admit a women or Hispanic applicant  over a white male applicant if all three have equal scores on all entrance  requirements.

5. Quotas. No quotas or set-aside programs may be used that are based on race, religion, sex, age, or nationality.

6. Double standards. No programs may use double standards for admitting applicants. Different  groups cannot have different requirements. The requirements for all must be the  same.

Topic #27:  What is due process of law?  Why is it Important?

Purpose

In addition to the equal protection clause, the 14th Amendment contains a clause that prohibits state governments from depriving “any person of life, liberty, or property, without due process of law.”  This short clause has had a profound effect on how the Constitution has been interpreted to protect individual rights.

You will learn the difference between  substantive and procedural due process, and how each protects your rights to life, liberty, and property.  You will also learn about the process called “incorporation” which  makes the  most  fundamental protections  of  the  Bill  of  Rights  apply  against  state  actions.

When you complete this lesson you should be able to explain what due process means and the difference between substantive due process and procedural due process. You should also be able to explain some of the changes in the application of the concept of due process that have taken place.  Furthermore, you should be able to show how the protections of the Bill of Rights have been incorporated into the 14th Amendment. Basic ideas and terms you should be able to explain are listed below.

incorporation                            property  rights             due process

procedural due process                        notice clause                laissez faire

substantive due process writ of habeas corpus

Due Process and the 14th Amendment

The due process clause of the 14th Amendment says: “…nor shall any State deprive any person of life, liberty, or property, without due process of law….” A due process clause appears in the 5th Amendment  (but does not include the word state).  The 5th Amendment and the rest of the Bill of Rights, as you have seen (Barron v. Baltimore, 1803), originally applied only to the federal government.  For  the first hundred years of the history of our nation, the Bill of Rights was not applied to the acts of state governments.  Gradually, after the 14th Amendment  was passed, this changed, and today most of our protections under the Bill of Rights are also protections against actions by  state governments, through interpretations of the due process clause (and equal protection clause) of that amendment. The term incorporation refers to this incorporating of protections of the Bill of Rights into the 14th Amendment and, therefore,  the constitutions of all of the state governments.

What is due process of law?

It is impossible to give an exact definition of the phrase  “due process of law.”  The term was first used in England in 1354, in a rewording of the Magna Carta.  Its first use in an  American constitution was in the 5th Amendment, as part of the wording recommended by James Madison.  There was no discussion of its meaning at the time.  The Supreme Court in the various cases that have come before it has interpreted it to mean, in a general sense, the right to be treated fairly by government.

The due process clause, as interpreted by the courts, requires:

* that the content of laws passed by legislatures be fair and reasonable. This is  called  substantive due process.

* that the procedures for conducting hearings and applying and enforcing the law be fair and reasonable.  This is called procedural due process.

Due process and the protection of property rights

From the 1880s to the 1930s, the Supreme Court used the idea of substantive due process to protect the property rights of citizens from what it considered unreasonable and unfair treatment  by state legislatures.  The Court’s interest focused on the phrase of the 14th Amendment which says,  “nor shall any State deprive any person of …property without due process of law.”  This emphasis, which lasted over fifty years, led to increasing conflicts and finally to important changes in the interpretation of this phrase.

During the late 1880s, there were many serious problems caused by the rapid growth of American industry as large factories and mass production replaced small craftsmen and merchants.  The people injured were farmers and laborers.  The farmers’ interests were often endangered by large railroad companies which controlled the cost of sending produce to market.  The factory workers were often forced to work long hours, in dangerous conditions, for very low pay.  Child labor in factories was common in some states.

To protect the interests of the farmers, laborers, and children, the state legislatures passed a number of laws.  Some laws limited the rates the railroad owners could charge farmers for sending their products to market.  Other laws required factory owners to improve working conditions, limited working hours, and established minimum wages. laws were also passed outlawing or regulating child labor.

When the state legislatures passed these laws they said they were promoting the common welfare of the people.  Critics disagreed.  They thought the best way to promote the common welfare was for government to leave the economy  completely alone.  This policy was known by the French phrase, laissez faire.  The people who supported laissez faire argued that laws which regulated various forms of economic activity and working conditions did not promote the common welfare, but instead furthered the interests of some groups at the expense of others.  The laws, they claimed, protected the interests of farmers and laborers at the cost of violating the property rights of those who owned the railroads and factories.

The Supreme  Court from 1880 to 1937 was composed for the most part of justices who considered most social welfare legislation to be unreasonable and unfair limitations on citizens’  rights to property.    They interpreted the due process clause of the 14th Amendment in a way that found unconstitutional state laws enacted to limit working hours, establish minimum wages, regulate prices, and bar employers from firing workers for belonging to labor unions. For example, in 1905,  the Supreme Court declared a New York law unconstitutional because it limited the work week of bakery employees to sixty (60) hours.  It claimed it was an unreasonable limitation on the freedom of contract.  The Court consistently found laws that limited people’s  property  rights to be unconstitutional except in situations where it was convinced that the laws were absolutely necessary to protect public health or safety.

Which should decide what is fair — the courts or legislatures?

When the Supreme Court decides that a law is unreasonable or unfair and thus unconstitutional, the question is raised as to what is “reasonable” and “fair.”  The problem is that what one person thinks is reasonable and fair may  be what another person thinks is unreasonable and unfair.  Opinions on such matters often depend, at least in part, upon a person’s economic, social, religious (both theistic and secular), and political views.  When  the Court makes a decision on such a question, the decision is made by a majority of nine justices, who have not been elected by the people and who cannot easily be removed from their positions.

Critics of the Supreme Court have often argued that when the Court decides that its interpretation of what is reasonable and fair is correct and that a law passed by an elected state legislature is unreasonable and unfair, it is acting like a “super legislature.”   The critics claim that in our system the Congress and state legislatures have the responsibility to to decide what the nation’s economic policies should be and not the Supreme Court.  As a result of political and economic changes, and new appointments to the Supreme Court, the Court stopped holding laws regulating property rights and the economy unconstitutional under the due process clause.

Due process and the protection of liberty

During the 1930s, the Supreme Court began to interpret the due process clause of the 14th Amendment in another important way.  This change focused on the meaning of the words “nor shall any State deprive any person of … liberty … without  due process of law….”  Attention had shifted to concern with, what is often called,  thecivil liberties of the people.

Since the late 1930s, the word “liberty” in the due process clause of the 14th Amendment has been interpreted by the Supreme Court to include, gradually, almost all the rights guaranteed in the first eight amendments of the Bill of Rights.  The process of making these rights apply to state governments is called incorporation.  In this process, the various rights contained in the Bill of Rights have been held to be incorporated, one by one, into the 14th amendment and therefore applicable to the states. Controversy arose, and continues today, over how this section of the due process clause should be interpreted.

What rights should be protected?

Most of the disagreements involve the meaning of the individual rights listed in the Bill of Rights and the extent to which they can be limited by Congress or state legislatures.  Like most of the Constitution’s clauses, the individuals rights listed needed to be interpreted.  For example,  the  First Amendment contains the statement that   “Congress shall  make  no  law  …  abridging  the  freedom  of speech….”  What is meant by “speech”?  Is wearing black arm bands to protest a war a form of speech?  Do laws that prevent people from using loudspeakers to advertise in neighborhoods at night violate free speech?  Does the protection of freedom of religion mean that the state cannot control any religious practices?

These are the kinds of questions that arise in deciding whether laws made by federal and state legislatures violate the protections of your rights listed in the Bill of Rights.  Ultimately,    these questions are decided in the Supreme Court.

Among the rights which have been protected by decisions of the Supreme Court under the due process clause is the right to travel to foreign countries, even though it is not a right specifically listed in the Bill of Rights.  The Supreme Court has found laws that restrict that right to be unconstitutional (remember that the 9th Amendment says people possess other rights besides those enumerated).  In a 1958 case, Justice William Douglas, stated,

The right to travel is a part of the “liberty” of which the citizen cannot be deprived

without due process of law under the 5th Amendment…. In Anglo-Saxon law that

right was emerging at least as early as the Magna Carta…. It may be as close

to the heart of the individual as the choice of what he eats, or wears, or reads.

Freedom of movement is basic in our scheme of values…. Our nation… has

thrived on the principle that, outside areas of plainly harmful conduct, every

American is left to shape his own life as he thinks best, do what he pleases, go

where he pleases.

What are your procedural rights and why are they important?

Suppose  you  are suspected  of  a  crime,   arrested,   imprisoned,   while awaiting  trial,   tried,  convicted,  and sentenced to prison by a court.  What rights are guaranteed you under the Constitution at each step of that process?

1. You are suspected of a crime.

The 4th Amendment guarantees that law-enforcement officers cannot search you or your

property, arrest you, or take your property unless they can show a good reason for doing                   so.

This amendment has been interpreted to mean that, except in certain emergencies where they must act quickly, law enforcement officers must get the permission of a judge (in the form of a warrant) to search you or your property, arrest you, or take your property. Further, the judge can only give this permission if the police officer can present reasonable evidence that you may be guilty of a crime, and can describe the evidence being sought.  As you can imagine, applying these protections in specific situations can lead to considerable disagreement over such questions as to whether a search  or arrest is “reasonable.”

The prohibition against unreasonable searches has a long history in English history,  and especially in the colonial experience.  In the last years of the colonial period, there was public outcry against searches made by British troops which had been made possible by the detested general warrants known as “writs of assistance.” A main purpose of the Fourth Amendment was to place strict limits on the issuing of search warrants by judges.

When the Framers placed the protection against “unreasonable searches and seizures” in the Constitution, they could not know of the technological advances that would allow  methods such as electronic eavesdropping on conversations.

The Supreme Court has dealt with such changes by interpreting your due process protections to mean that you should be given reasonable protections against government eavesdropping.  For example, the Supreme Court has ruled that  the police have to get a warrant  before they can tap your phone and listen to your conversations.

2. You have been arrested and taken to jail.  What are your rights?

The Sixth Amendment guarantees you the right to know why you have been arrested.

It  contains the “notice clause”  which says that you must be informed of the “nature and cause of the accusation” for which you have been arrested.  The  main purpose of this protection is to give you the information necessary to answer the charges and to prepare to defend yourself.

The Sixth Amendment also guarantees you the right to have a lawyer help you answer the accusation.

It guarantees you the right to the “assistance of counsel”  for your defense.  If you are like most people,  you probably know little about the law, or about the rights you are entitled to while being held in jail, or about court procedures, such as those that deal with examining witnesses.  You would be at a great disadvantage trying to answer charges against you even if you were innocent and had been arrested by mistake.

Until about fifty years ago, the right to counsel was interpreted to mean that you were free to hire a lawyer to help you if you wanted one and could afford one.  Since that time, the Supreme Court has interpreted the right to counsel to mean that if you are accused of a crime and are too poor to hire a lawyer, the government must provide one at public expense to represent you at all stages of the criminal proceeding.

The Fifth Amendment guarantees that you have the right to remain silent both at the time of your arrest and throughout your trial.

This right protects you from being forced to give evidence against yourself.  It is contained in the “privilege against self-incrimination clause” which says that a person cannot be “compelled in any criminal case to be a witness against himself.”  The right has its origins in the English common law system dating back at least to the 1500s.

The  Framers knew that throughout history it had been common practice to torture people to make them confess to crimes.  Even if you were innocent, you might confess to a crime if you were tortured.

3. You think you have been arrested and are being held in jail unfairly.

Article I, Section 9, of the Constitution guarantees you the right to have a judge hear your story and decide if you are being treated unfairly.

This part of the Constitution guarantees you the protection of the writ of habeas corpus  or the “Great Writ of Liberty” as it was known by the Framers.  This protection, included in the Magna Carta, has its origins in the English Common Law and is considered one of the most important safeguards of freedom in the British and American governmental systems.  It means that if you are being held in jail, you or someone acting for you, may get an order from a court requiring the police to take you to court so you can argue before a judge that you have been unfairly arrested and should be set free.  The police would have to present the evidence they had against you to the judge to justify their actions.  If the judge agreed with you, you would be set free.  If not, you would be held for trial.

The purpose of the right to habeas corpus  is to protect you from being held in jail for a long time without being tried and convicted. [Dr. Jorge Gelabret was held in a Cuban prison for 14 years, in the 1960s and 1970s,  without ever being tried for a crime -- this could not happen in the U.S.  He was eventually released and recently retired from teaching  at St. Francis H.S. in La Canada, CA.]  The Framers knew that it was a common practice for governments to arrest people and put them in jail without ever giving them a fair trial.  Today, the writ has been interpreted to protect you if you have been convicted and are being held in prison and can argue that your conviction had been unfairly obtained.  It gives you the right to have a judge review your case to see if you have been treated unfairly.  It is not guaranteed during times of “rebellion or invasion.”

4. You are in jail waiting for your trial.

Suppose after you have been arrested, a judge or a grand jury decides that there is enough evidence that you may be guilty to justify holding you for trial.  What rights do you have?

The Eighth Amendment guarantees the right to be free on reasonable bail while you wait for your trial.

This idea has a long history in English Common Law dating back to the Magna Carta.  It was part of the legal tradition that the colonists brought from England.  Bail is an amount of money left with the court to guarantee that an accused person will return to court to be tried.  it is an attempt to reduce the harm done by imprisonment between arrest trial.  Such imprisonment may punish in advance someone who is eventually found innocent, may cause someone to lose a job or be unable to fulfill family duties, and may make it more difficult to prepare a defense. However, if a judge decides, for example, that you would not show up for your trial or that if you were free you might endanger others, you might be refused the right to be set free on bail.

The Sixth Amendment guarantees you the right to a speedy and public trial.

This right serves two purposes.  First, it protects you from being kept in jail for a long time even though you have not been convicted.  Second, it protects you  from being tried in secret where members of government might treat you unfairly and no one would ever know about it.  The Framers knew that governments had used secret trials to unfairly convict people of crimes for which they probably would not have been convicted in a public trial by a jury of their peers.

5. You are brought to trial.  What are your rights in court?

Article III,  Section 2 of the Constitution, and the Sixth Amendment guarantee you the right to a trial by an impartial jury.

The Framers knew that the right to a trial by jury was one of the greatest protections from unfair treatment by the king and his judges that the people of England had developed. In England, the jury was traditionally made up of twelve persons selected from the community at large; they were not members of the government.  The purpose of a jury trial is to provide an unprejudiced group to determine the facts and to provide judgments about guilt or innocence.  Requiring a jury trial is a way of making sure that the criminal justice system is democratic (and involves citizens of the community).

The Sixth Amendment guarantees you the right to be confronted with the witnesses against you.

Suppose a secret informer tells law-enforcement officers that you have committed a crime, but that person is not required to face you and your lawyer in court.  You don’t know who the person is and have no chance to challenge the accusation.  The purpose of this protection is to make sure that you and your lawyer have the chance to face and question anyone who has given evidence against you which may be used to convict you.

The Sixth Amendment guarantees you the right to compel witnesses in your favor to testify for you.

Suppose you know  someone who knows something that might help you with your case, or even might have evidence to show you are innocent,  but the person won’t testify for you for one reason or another.  As a result, you might be convicted of a crime you didn’t commit.  This right says that in such situations, the government must do everything it can to bring witnesses who may be in your favor to court to testify for you.

6. You have been convicted of a crime.  What rights do you now have?

The Eighth  Amendment guarantees that you may not be subjected to cruel and unusual punishment.

This protection has been interpreted to mean that the punishment shall not be “barbaric.”  Such punishments as branding or whipping are prohibited.  The punishment shall not be “excessive.”  For example, you cannot be given, as happened in the past,  the death sentence for stealing a loaf of bread.

7.  You have been tried and found innocent.  What rights do you have?

The  Fifth Amendment guarantees you the right to be free from being tried again for the same crime.

The protection against “double jeopardy” is the oldest of the procedural protections that were included in the Constitution.  It has its roots in ancient Greek and Roman law, it is in English Common Law, and, it is found in the laws of many nations.  It is intended to prevent the government from abusing its power by trying you again and again for the same crime of which you have been found innocent.  To allow the government to do this would be to subject you to continued embarrassment, expense, anxiety, and insecurity, and the possibility of eventually being found guilty even though you are innocent.  The protection against double jeopardy also protects you, if you have been found guilty, from being punished more than once for the same crime.

Controversies over Procedural Due Process

Controversies over procedural due process have not been over the rightness or wrongness of the basic rights themselves but over how they should be interpreted and applied.  The Supreme Court’s interpretation of these rights show how it has tried, under changing and often difficult circumstances, to balance your rights as an individual against the responsibility of government to protect all of us from people who break the law and who may endanger our lives, liberty, or property.  Since the protection of your individual rights is the main purpose of constitutional government, the problem of balancing these interests is one of the most difficult problems of a limited government.

While controversy remains with regard to the interpretation and extent of particular rights and how they are to be protected, all justices have  agreed that fairness in the procedures  by which a person is accused and tried for a crime is a cornerstone of our constitutional democracy. The guarantees of procedural fairness or justice are among the most important of your rights contained in the Constitution and Bill of Rights.

Topic #28:  Why Does the 1st Amendment Prohibit the Establishment of Religion?

The importance of freedom of religion to the Founders can be seen by the fact that the first phrase of the First Amendment of the Bill of Rights says “Congress shall make no law respecting an establishment of religion, or prohibiting the  free exercise thereof;”  This opening phrase contains what are known as the “establishment” and “free exercise” clauses. This and the following lesson will explain the importance of your right to freedom of religion.  These lessons will also cover how this right has been applied since the founding of this nation and some of the current controversies about it.

When you complete this lesson, you should be able to describe some of the important events in the history of the relationship between church and state (or government). You should also be able to explain some of the most important reasons why Americans have believed that freedom of religion is vital. Basic ideas and terms introduced in this lesson which you should be able to explain are listed below.

religious intolerance                                                                 Great Awakening

establishment of religion [establishment clause]                                   religious tests

free exercise of religion  [free exercise clause]                          Lemon Test

established church

“wall of separation”  [separation of church and state]

Introduction

The First Amendment opens with the words “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The Supreme Court has interpreted the Fourteenth Amendment to make these protections from the federal government applicable to state and local governments.

The establishment clause.        At a minimum, this clause prohibits the federal government from establishing one or more official religions or churches for the nation.

The free exercise clause.         This clause prevents the federal government from  interfering with your right,  in most cases,  to practice your beliefs.

Background information …

Religious conflict in Europe

At the time of the first settlements in America,  Europe was still suffering from the religious wars and bloodshed that had torn apart much of the continent since the Reformation (the religious movement in Europe in the 1500s that led to the establishment of Protestant churches – see Martin Luther, John Calvin etc. in a world history textbook  for  more  information).

The religious revolt known as the Reformation ended the domination of Europe by the Roman Catholic Church that had lasted for more than a thousand years.  It led to more than a century of wars as Catholics and Protestants struggled  for power.  Each group, once in power,  attempted to eliminate its opponents — through torture, banishment, jail, or death.  In one country after another, men and women were burnt at the stake for refusing to convert to the official faith (religion).

Mary I of England (1516-1558), for example, was known as “Bloody Mary” because she was determined to reassert the Catholic faith if she had to burn every Protestant in England to do so.  In France, the religious wars led to the massacre  of over three thousand Huguenots (Protestants) on           St. Bartholomew’s Day, 1572.  This type of bloodshed, repeated throughout Europe, was justified by many people because they believed their religion was the only true faith.

Almost every nation in Europe had an official church (religion), known as the established church,  supported by the government.  Sometimes, everyone had to attend its services, obey its requirements, and pay taxes to support it.  There was only one established church.  Whether it was the Church of England in Great Britain, the Roman Catholic Church in Spain, or  the Lutheran Church in Sweden,  each nation had its official religion (church).

Where different churches were allowed to exist, people who did not belong to the established church were denied the rights of people who did. They were often excluded from universities and disqualified from civil and military offices.  Sometimes they were severely persecuted or killed for their beliefs.

Religious Freedom in the Colonies

The colonists brought to the New World their experiences with an established church.  In many cases,  those who left Europe did so because they disagreed with the church in power — not because they believed in religious freedom.  Most Europeans in the 17th century accepted the idea of an established religion (church). The idea that several different religions could coexist was not yet widely accepted.

It should not be surprising, therefore, that in most of the early colonies, there was little tolerance for religious differences.  Not only did most colonies have an established religion, but in many cases there was intolerance for those who did not follow this church.  The Puritans who settled Massachusetts, for example, did not come to the New World in search of religious liberty.  They came to save pure religion from what they believed to be corruption of religion in Europe.  They  thought they were called by God to establish a Holy Commonwealth based on a covenant between themselves and Him.  They were unwilling to accept those who did not conform.  Indeed,  they  thought  toleration of religious error was a sin.  Consequently, they drove many dissenters out of their colony, punished others, and in 1659 hanged two Quakers and banished a third,  Mary Dyer,  who was hanged the following year when she returned to the colony.

Dissenters sometimes simply went off into the wilderness and began new colonies of their own.  For example, the Reverend Thomas Hooker took his followers (from Massachusetts) and settled Connecticut.  However, their new colony soon became as intolerant in its own way as Massachusetts.

Anne Hutchinson, a brilliant and talented woman, arrived in Massachusetts in 1634 with her husband and seven children.  She gained considerable respect as a midwife, healer, and spiritual counselor.  Before long she began preaching a theory of salvation that went against the official Puritan beliefs.  Not only was she a dissenter, as a woman she was particularly offensive to the male leaders of the community.  Brought to trial, she was cast out of the colony as a “heathen.”

Hutchinson fled Massachusetts to Rhode Island where religious dissenters were tolerated.  It was the first colony to grant freedom of conscience to everyone.  The charter of 1663 provided that    “noe person…shall bee any wise molested, punished, disquieted, or called in question, for any diferences of opinione in matters of religion.”  Jews, Quakers, Catholics, and others not welcome  elsewhere found a haven in Rhode Island.  Pennsylvania, Delaware, and New Jersey also tolerated a relatively free expression of religious beliefs.

Rhode Island was established by a dissenter, a Puritan minister,  Roger Williams, who had fled Massachusetts.   He opposed any established church because he believed government involvement would corrupt religion. Requiring people to attend a particular church “stinks in God’s nostrils,” he proclaimed.  Religion was only meaningful when chosen freely — “forced worship is false worship.”

Increased Religious Toleration

By the time of the American Revolution, people had become more tolerant of others.  Diverse religious groups existed in the same community and people became used to living and working with others who had different beliefs.  The large number of religious groups also made it highly unlikely that one particular church could dominate all others.  As James Madison noted, the diversity  “which pervades America is the best and only security for religion.”

At the same time,  a series of revivals running  roughly  from 1726 through 1756, known as the Great Awakening,  drew many away from the established churches and into new religious groups. It was led by people such as George Whitefield , Jonathon Edwards, and Samuel Davies. Usually credited with beginning with the preaching of Theodorus Frelinghuysen, a Dutch Reformed minister in New Jersey,  it promoted the idea that all Christian churches (religions) were equal,  (It also criticized the institution of slavery).  As a leading preacher proclaimed,  “Father Abraham, whom have you in heaven?  Any Episcopalians?  And the answer came back,  No!  Any Presbyterians?  No!  Any  Independents or Methodists?  No, no, no!  Whom have you there?  And the final answer came down from heaven.  We don’t know the names here.  All who are here are Christians.”

With this attitude, it became increasingly difficult for one church to claim special privileges.  As a result,  even though states that had some sort of established religion did not support only one church as was common in Europe.  Government support was given to a number of churches — it was support for religion rather than for a particular state church.  However, preference  was given to the Protestant form of the Christian religion.  Catholics,  people of the Jewish faith, or any other non-Protestant groups were not supported and were sometimes discriminated against.

By the time the Constitution was written, most Americans supported the idea that freedom of belief was an essential right that needed to be protected.  They also believed in the importance of religion in developing the kind of character needed to maintain a free society.  This view was held side by side with the view that each person has a  ‘natural right’ to his or her own beliefs (liberty).  Most of the Founders came to realize that their own religious beliefs required them to support religious freedom in general.  As a result, slowly,   many came to distinguish between  ‘foundational beliefs’  and beliefs that were not  important enough to require punishments such as banishment or death.

The Founders’ religious beliefs promoted freedom of religion

Most of the Founders were religious people. Despite the history of intolerance, the influence of some of their religious beliefs resulted in promoting the freedom of religion which we have today.

The  Founders believed that you have certain  ‘natural rights’  simply because you are a human being. This belief developed in part out of the Puritan idea that God has given you a moral sense and the ability to reason which enables you to tell the difference between what is right and wrong.  Philosophers such as John Locke argued that society should allow you to live the way your moral sense, guided by the Bible, tells you is right.  The best government,  therefore,  they believed,  is one that interferes as little as possible with your beliefs,  including religious belief,  although many did not support tolerance for you if you did not believe in God.

The Founders,  it is important to remember,  believed that religion is extremely important in developing the kind of character citizens of a free society needed to have in order to remain free. They did not want to divorce religion completely from public life.  For example,  George Washington said in his farewell address that virtue and morality are necessary for a government run by the people.  He also said that morality could not be maintained without religion.

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 mere politician, equally with the pious man,

ought to respect and to cherish them…. Where is the security for

property, … for life, if the sense of religious obligation desert the oaths

which are the instruments of investigation in courts of justice?  And

let us with caution indulge the supposition that morality can be

maintained without religion.

[George Washington’s  Farewell Address]

At the same time, he joined Thomas Jefferson and James Madison in opposing a bill introduced into the Virginia legislature which would have used tax  money to pay  religious teachers.  What Washington and many of the Founders were trying to do was to establish a separation between church and state but not a divorce between  all religion and public life. In other words, wanted they to keep the churches in America and the government of America from being excessively entangled in each other’s business.

Why did the Founders believe in the separation of church and state?

In Virginia in the 1770s  and 1780s,  there were bitter debates over the aid the state government gave to the established church.  Members of the state legislature were sharply divided over this issue and their angry disputes threatened the stability of the government.  Thomas Jefferson believed that the only way to deal with such problems was to completely separate religion from politics.  This, he argued, would eliminate the formal influence of religion on government and promote free choice of political positions.  he therefore urged the  separation of church and state.

Jefferson wanted to protect debates over public policy from the influence of religious disputes.  He and others were affected by the horrible example of the religious wars that had raged in Europe. Jefferson believed  such wars were the results of religion and government becoming too closely connected.  He was  also influenced by the example of the religious disputes  which had taken place in Virginia.     Consequently,  Jefferson argued, among other things, that members of the clergy should not be allowed to hold public office.

Madison was more balanced in his views than Jefferson.  He argued that throughout history there has been a great tendency for  (1)  government to dominate religion,  (2)  religion to dominate government,  or  (3)  there to be a corrupt partnership between government and religion.  The best way to deal with this problem is to keep government from interfering in any way with religion.  Government should only do what is necessary to keep the peace and protect each religious group from violating the rights of others.

There are two fundamental reasons why Americans have argued for the separation of church and state,  that is,   that religion  and government should be separate.  People such as Roger Williams believed it was essential in order to protect religion  from being corrupted by the state.  He insisted that there should be a “wall of separation between the garden of the Church and the wilderness of the world.”   Thomas Jefferson thought it was important in order to prevent religious conflict from corrupting good government.  James Madison combined these two views in his opposition to a religious establishment.  He, of course,  was the one who wrote the First Amendment.

How was religious freedom protected in the Constitution?

Before the Bill of Rights,  the only  mention of religion in the Constitution was the ban placed on religious tests for public office in the federal government (Article VI).  In 1787, most states still had established religions or  religious tests for office.  Many Americans did not believe that non-Protestants could be trusted with public office.

At the Philadelphia Convention, Charles Pinckney of South Carolina proposed that  “no religious test shall ever be required as a qualification to any office or public trust under the United States.”  His proposal passed with little dissent.  For the first time in history, a nation had formally abolished one of the most powerful tools of the government for oppressing religious minorities.

Most states followed the example of the federal government and abolished tests for state office.  But it was not until 1868 in North Carolina, 1946 in New Hampshire, and 1961 in Maryland that religious tests were abolished entirely.

How have the courts interpreted the establishment clause?

The First Amendment says “Congress shall make no law respecting an establishment of religion.”  It is clear that the authors  of the First Amendment wanted  to put an end to the practice of having the government declare an official national religion.  It is also fair to say that most of the Framers wanted to prevent the government  from giving special benefits to some religions and not others.

Beyond this general agreement, however, there is considerable disagreement.  Nevertheless, in 1971 the Supreme Court did try to lay down some guidelines concerning whether a law or action of government  was violating the establishment clause of the First Amendment.  The case was Lemon  v.  Kurtzman (1971) and the result was what is often called the “Lemon test.”   Chief Justice Warren Burger wrote the majority decision which included the following requirements:

1. The primary purpose of a law must be secular,  not religious.

2. The primary effect of the law must not be to advance or inhibit religion.

3. The law must not create an excessive government entanglement  with religion. What is “excessive”  is, of course, open to interpretation,  but the point is                                                 to avoid active involvement of the government in religious matters.

Disagreements over the establishment clause

Disagreements about the meaning of the establishment clause of the First Amendment can be summarized as follows:

1. The broad interpretation. People who hold this position argue that the government cannot

*           set up (or establish) a national church.

*           use tax money to support any religious activity, practice, or institution

*           give aid to all religions on an impartial basis

People holding the broad interpretation argue that the First Amendment prevents the federal government from providing any support for religion whatsoever.  They argue that it is a violation of the First Amendment to place “In God We Trust” on money,  to add “under God” to the Pledge of Allegiance, and to set up public displays on government property recognizing any kind of religious holiday.

2. The narrow interpretation. People who hold this view argue that the government is only prohibited from giving one religious group preferred treatment over others.  They believe the First Amendment does not prohibit government from supporting religion so long as it does so impartially.

This group supports the placement of “In God We Trust” on money  and the inclusion of “under God” in the Pledge of Allegiance.

However, both people who hold the broad and narrow interpretations would say the First Amendment prohibits government recognition of Christmas, if the holidays of other religious groups are not recognized.

3. The literal interpretation. People who hold this view suggest that the First Amendment should only prohibit the establishment of an official government religion.  This position would not prohibit the participation of government in, approval of,  the religious practices of particular religions.  Thus, they would allow the government to participate in Christmas celebrations so long as the government did not declare Christianity to be the official established religion.

In 1940 the Supreme Court made the establishment clause and the free exercise clause applicable to the states through incorporation into the Fourteenth Amendment.  Since that time, the court has heard numerous cases involving freedom of religion.  These have involved a number of issues such as prayer in schools, Christmas displays of Nativity scenes, and various kinds of support for religious education.  These are matters about which people have very strong feelings.  While most people agree that church and state should be separated, we are no closer now than we were in 1791 to reaching a general consensus on exactly what this means.

Ask yourself – below is information on the original draft of the 1st Amendment. It like the other amendments that make up the Bill of Rights were written by James Madison. Ask yourself which interpretation above fits best with the original draft and therefore the final draft as well.

First Amendment background.

The 1st amendment prohibitions on the establishment of religion was not drafted out of hostility to religion. Its aim, rather, was to prevent Congress from establishing a national religion and interfering with existing state support of religion. Madison’s  first draft, his original version, of  what would ultimately become the Establishment Clause of the 1st Amendment read:

“The Civil Rights of none shall be abridged on

account of religious belief or worship ,nor shall

any national religion [national church]be established…”

However, during the debate some representatives felt that the statement did not go far enough in protecting  religion. They were concerned that the phrase was not specific enough in protecting religious expression, and that the government might use the first amendment, in the future, to restrict religious worship and expression.  At this time, it is important to note, religion was supported in the states.  The language was ultimately changed to provide that “Congress shall make no law respecting the establishment of religion,” perfectly capturing the intended prohibition both of a national church and federal interference with existing state support of religion.  However, the passage 14^th Amendment  has changed things. The prohibition  that once applied only to the federal  government now applies to state and local government. This is because of the concept of  incorporation, which requires all state governments to abide by the Bill of Rights.  When the courts operate with a broad interpretive paradigm the result is  increased restriction on religious expression.

How close to what was originally intended are we?  That is not hard to answer. We have a pretty good idea of what Madison wrote, and the context. Yet, because we live in a world with much more diversity, it is often easier to apply the broad interpretive mindset and rule almost all religious expression to in violation of the constitution, if that expression has any connection to the public arena and/or government.

Topic # 29:  How Does the Free Exercise Clause Protect Your  Freedom of Religion?

Purpose:

When you are done with this lesson you should be able to explain the importance of freedom of religion.  You should  be able to describe the issues involved in both the Reynolds and Yoder cases

What rights are protected by the free exercise clause?

The establishment and the free exercise clauses of the First Amendment  deal with two different parts of the idea of religious liberty.  The establishment clause prevents the government from requiring citizens to support or believe in a particular religious faith.  It is clearly intended to protect the rights of each individual to believe whatever he or she wishes.  We have already examined the various ways different people interpret this clause.  On the other hand the  free exercise clause is mostly concerned with making sure that people who want to practice their religion will have an opportunity to do so.

There are two parts to the idea of freedom of religion:  the freedom to believe and the freedom to practice your religious beliefs.  The Supreme Court has said that individuals have an absolute right to freedom of belief or conscience.  The government may not interfere with this right.  However, the right to practice one’s belief may be limited under certain conditions to protect other important values and interests.  The problem is deciding what religious practices should be protected by the First Amendment and what practices may be limited by government without violating the amendment.

When should the practice of religious beliefs be limited?

There are no simple tests or criteria that can be used to give ready-made answers when difficult decisions must be made about whether the government should be allowed to limit the right to practice one’s religious beliefs.  Such decisions usually require balancing the right to practice one’s beliefs against the rights of other individuals and other important values and interests of society.  For example, the Supreme Court has held that although an adult can refuse a blood transfusion on religious grounds, the same adult cannot refuse to have a  life-saving transfusion given to his or her child.

In essence,  while you have the right to hold any religious beliefs you wish, this does not mean that  the federal government or state governments cannot  make and enforce laws controlling your religious practices.  Religious practices may be limited if they offend public morals,  jeopardize public health,  or in other ways endanger the common welfare.  For example,  according to court rulings, religious practices involving polygamy may be forbidden without violating citizen’s constitutional rights.  Couples who wish to marry may be required by state law to take blood tests before being given a marriage license.  Children may be required to be vaccinated for small pox before being admitted to school,  even if these requirements violate their religious beliefs.

TWO SAMPLE CASES

Reynolds v. United State (1879)

The first free exercise case was Reynolds v. United States.  In 1870,  the federal        government prosecuted George Reynolds because he had two wives.  Reynolds was a Mormon, and his religion allowed the practice.  Federal law, however, stated that polygamy — the practice of having more than one wife — was a crime.  After his conviction, Reynolds appealed to the Supreme Court,  arguing that the government had violated his right to free exercise of religion.  The court disagreed with Reynolds.  While he was free to believe what ever he wanted, his actions had to conform to U.S. laws.  The Court’s message was clear.  The government could not regulate a person’s beliefs, but it could regulate his or her actions.  Although freedom of religion was to protected,  it was not without limitations.

Wisconsin v. Yoder (1972)

In this case, an Amish community objected to a Wisconsin state law requiring students to attend public school.  The law, explained the Amish, conflicted with their religiously based desire to remain apart from nearby communities.  Although the Court ruled that the Amish had to abide by the state law, it found the law excessive.  The Court found that the children would only have to attend school through the eighth grade.  Requiring any more attendance would conflict with the Amish’s ability to practice their religion and would, therefore, be in violation of the Constitution.

Conflicts between the free exercise and establishment clauses

There are times when the free exercise and the establishment clauses come into conflict.  For example, consider the following situations:

***        Is Congress establishing a religion when it opens its sessions with prayer led by a chaplain? If it refused to do so, would it be preventing its members from freely exercising their religious beliefs?

***        If the government pays to provide for chaplains in the armed forces and in prisons, is it violating the establishment clause?  If it failed to do so would it be unfairly  limiting the free exercise of their beliefs by persons serving in the armed forces or in prison?  [Keep in mind situations like being on an air craft carrier out at sea  for a minimum of six  months.]

***        If public school officials excuse Jewish students from attending classes on Yom Kippur to attend religious services, are they creating a preference for a particular group that violates the establishment clause?  If they deny the students the right to be absent, are they prohibiting the right to  free exercise?

***        On August 11, 1984, the president signed into law the Equal access Act.  This act requires secondary schools to allow student religious groups to hold meetings in school buildings if other groups such as the chess club or social clubs are provided with the same opportunity.  If schools do not provide meeting facilities for student religious groups (and they do for other social groups), are they limiting their free exercise?  If they do, are they violating the establishment clause?

These are questions upon which reasonable people differ.  In our democratic system, it is the right of each person to develop his or her own answers to such questions.  Under our system of government, it is the function of the Supreme Court to determine if laws created by the government have violated a person’s religious liberty.

Modern Pluralism and the First Amendment

The moral project of the Founders was to construct not only a constitutional order but a public philosophy that would establish broad and equitable standards of public justice, standards that would sustain this new United States far into the future.  The basic purpose was that as long as the nation exists, the convictions of individual conscience shall exist free of government interference and coercion.  With this protection was the guarantee that the interests of particular faiths will not be extended by the direct or indirect  patronage of the government, at least not to the disadvantage of minority faiths.

With the recent expansion of religious and cultural pluralism in America, profound and divisive questions have been raised about whether those guarantees are being met.  These questions are unlikely to be resolved  until a central issue is addressed: given the expansion of pluralism, and secularism in particular, how is “religion” to be defined and how is that definition to serve the traditional ideal of public justice?

The fastest growing community of “moral conviction”  in  the United States is that which social scientists call “secularists”  –  those who claim no particular religious preference at all.  Between 1952 and 1962 this group made up only 2 percent of the population; by 1972 it was 5 percent, by 1982 it was 8 percent, and today  it is at least 11 percent  of the population.  Citing mountains of empirical  evidence drawn from the work of  Robert Bellah (see Habits of the Heart), Max Weber, Emile Durkheim, one could argue quite plausibly that a secularistic humanism has become the dominant moral ideology  (religion, according to many definitions)of American public culture,  and now plays the same role as the Protestant (pan-Protestant) ideology played in the 19th century (1800s).

If that is the case,  the question that inevitably arises is how the law should treat non theistic faiths (religions without a belief in a god) and ideologies. Though not religious in the same sense that Protestant Christianity,  Catholic Christianity, Islam, Hinduism, and Judaism are considered to be,  should  they  nonetheless be considered religions  for  First Amendment purposes?  In time this question will have to be answered, and the fact that it is being debated is a sign of a healthy republic (democracy).

Topic # 30:  How Does the First Amendment Protect Your Freedom of Expression?

Purpose:

The  First Amendment says that “Congress shall make no law… abridging the freedom of speech, or of the press, or the right of the people to peaceably to assemble, and to petition the government for a redress of grievances.”   Together these four rights are considered as one, the right to express your ideas and beliefs.  All are essential to free society.

This lesson will discuss what benefits freedom of expression offers to both the individual and society, why it was important to the Founders, and the circumstances under which the government should be able to limit this freedom.

When you have finished this lesson, you should be able to explain the importance of freedom of expression and the historical significance of the First Amendment.  You should also be able to discuss considerations useful in deciding when it is reasonable to place limits on freedom of speech and the press.

Terms to Know:

time,  place,  and manner restrictions

Espionage Act of 1918

clear and present danger

libel

The Importance of Protecting the Right to Freedom of Expression

The First Amendment  was written because the founders believed that the freedom to express your beliefs is essential in a representative government.  As Benjamin Franklin said, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”   The Founders knew from their own experience and from their knowledge of history that freedom of expression needs to be protected from government interference.

It is not easy  for many people to tolerate the speech of others with whom they may strongly disagree.  It is often especially difficult for people in powerful government positions to tolerate criticisms of their actions.  As Justice Oliver Wendell Holmes, Jr., said, “If you have no doubt of your premises or your powers and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.”  History is filled with examples of government suppression of free expression by people who have had no doubt about their beliefs or powers.  The Founders understood that the spirit of liberty  operates best when it is not too sure that it is right.

The pressures to suppress freedom of expression are widespread and powerful in any society.  To some,  it defies common sense for the government to protect the free speech rights of people with obnoxious views.  It is important,  therefore, to constantly remind ourselves of the important benefits of freedom of expression to the individual and society such as the following:

* Freedom of expression is a necessary part of our representative government.

In our system of government, the people are the masters and government is their   servant.  If people are to perform their role and instruct their government, they must have    access to information, ideas, and different points of view.  Freedom of expression is  crucial both in determiningpolicy and in checking how well the government is carrying out  its responsibilities.

* Freedom of expression is vital to bringing about peaceful social change.

The right to freely express one’s ideas provides a “safety valve” for strongly held thoughts  and feelings that, if suppressed, may lead to the use of violent means of expressing opposition tolaws or policies with which one disagrees.  Freedom of expression allows  you to influencepublic opinion by persuasion rather than by resorting to violence.  We have made many changes in our nation through convincing others of the wisdom of our  ideas.  The freedom to dissent makes it easier to accept government decisions, even if  you disagree with them.

* Freedom of expression is essential for the protection of individual rights.

Freedom of expression is one aspect of our natural right to liberty.  The free expression of ideas and the right to speak against the violation of one’s rights by others or by the  government are essential for the protection of all rights of the individual.

* Freedom of expression is important for the advancement of knowledge.

New and better ideas are more likely to be developed in a community which allows free  discussion.  As the British philosopher John Stuart Mill (1806 – 1873) pointed out, an  enlightened judgment is only possible if you are willing to genuinely consider all facts and  ideas, from whatever source, and to test your conclusions against opposing points of  view.

* Freedom of expression promotes individual growth and human dignity.

The right to express your ideas and communicate with others contributes to your growth as a person.  Human dignity is promoted by allowing you freedom to say what you think and to hear what others have to say.

“Deny them [the colonies] this participation of freedom, and you break that sole bond, which originally made, and must still preserve the unity of the empire.”

- Edmund Burke, Second Speech on Conciliation with America:  March 22, 1775

“ We Americans understand freedom: we have earned it, we have lived for it, and we have died for it.  This nation and its people are freedom’s models in a searching world. We can be freedom’s missionaries in a doubting world.”

- Former Arizona Senator Barry Goldwater, speaking at the Republican National Convention,  June 16, 1964

“Liberty not only means that the individual has both the opportunity and the burden of choice; it also means that he must bear the consequences of his actions…. Liberty  and responsibility are inseparable.”

- Friedrich Hayek,   Nobel Prize Winning Economist (1960)

“Liberty is the only thing you cannot have unless you are willing to give it to others.”

- William Allen White,  Pulitzer Prize-Winning Newsman,  New York Times

“To silence criticism is to silence freedom.”

- Social Philosopher Sidney Hook,  September 30, 1951

———————————————————————————————————————————

Commonly Accepted Limitations on Freedom of Expression

Despite the statement in the First Amendment that “Congress shall make no law … abridging the freedom of speech,”  few people argue against limiting freedom of expression in certain situations.

Suppose the First Amendment were interpreted to mean that there could be no laws at all limiting speech.  If so, people would be able to say anything they wanted at any time they wanted.  People could falsely shout “Fire!” in a crowded theater to cause a panic and possible injury or loss of life.  People could give military secrets to enemies.  They could lie in court and deprive people of their right to a fair trial.  People could scream in libraries, give political speeches in the middle of church sermons, or speak through loudspeakers in neighborhoods in the middle of the night.

Most judges, historians, and legal scholars believe the first Amendment should not be interpreted to protect freedom of expression in situations such as those just described. In some situations, limiting freedom to speak may actually increase a person’s ability to speak and be heard.  For example, there are rules governing when someone may talk at a meeting or debate.  If there were no rules and everyone was allowed to talk at the same time, it would be difficult for anyone to be heard.  Although you have a right to give a speech criticizing the government, you do not have the right to do so in the middle of a math test.  You may have the right to protest a government policy you do not like, but  you do not have the right to do so with a loudspeaker in a residential area in the middle of the night.

These kinds of limitations on freedom of expression are referred to as time, place, and manner restrictions. They govern when, where, and how you can speak, not what you can say.  Most people agree that these kinds of limitations do not violate the right to freedom of expression so long as they do not make it very hard or impossible for you to express your ideas to others.

The difficult question is to decide when freedom of expression should be protected and when it should not.  An examination of the history of freedom of expression may be useful in learning to deal with this question.

Freedom of Expression in the Colonies

In reality, if not in law, there was a greater sense of freedom to express political opinions in the colonies than in Great Britain.  The trial of printer John Peter Zenger  in 1735 had established the idea that truth should be a defense against charges of seditious libel. Zenger was the New York Weekly Journal publisher and central figure in a seditious libel trial, resulting from censures of the government published in his anti administration newspaper. He was acquitted in a jury trial; the decision being regarded as fundamental in establishing freedom of the press in America.  By the mid-eighteenth century, most Americans believed that the right to express one’s political opinions was essential for a free society.

No where is the importance of a free press for Americans better illustrated than during the Revolution.  The printing press was an important weapon both in bringing the Revolution about and in its success.  The so-called “Pamphlet War” was one of the factors that made it possible for John Adams to claim that the Revolution began long before the war started, having been accomplished in the hearts and minds of the people.

Nevertheless, there is no indication that the Framers intended the Constitution or the Bill of Rights to prevent prosecution for seditious libel. The common view, in both America and Britain, was that no one should be able to make a false or malicious accusation against the government.

Until the end of the eighteenth century, legal protection for speech was limited to legislators speaking in their official capacity.  The English Bill of Rights had protected freedom of speech for members of Parliament and this concept was carried over to the colonies, included in the state constitutions, and protected in the Constitution.

The Constitution itself made no mention of a free press because the Framers believed, as Roger Sherman of Connecticut declared, “it is unnecessary.  The power of Congress does not extend to the Press.”  The lack of such protection, however, was one of the criticisms of the new Constitution. (In the last week of the Constitutional Convention held in Philadelphia, the delegates rejected Elbridge Gerry’s and George Mason’s bid to appoint a committee to draft a Bill of Rights.  The Bill, it turned out, would have given peace of mind to many of the anti-Federalists. The rejection of the Gerry and Mason proposal was not to Thomas Jefferson’s liking either; from Paris, he urged his friend James Madison to work for a Bill of Rights which he eventually did.)

Writing from France, Jefferson also noted the importance of protecting freedom of the press.  “Were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate for a moment to prefer the latter.”

The Framers’ intentions in writing the First Amendment have never been entirely clear.  As we have seen, in the eighteenth century free speech was considered to be of more limited scope than we think of today.  The passage of the Sedition Act in 1798, by some of the same people who ratified the Bill of Rights, indicates that some Americans still had a narrow view of free expression.

Most people, however, opposed such limitations.  One of the reasons the Republicans (Jefferson) won the election of 1800 was that they were viewed as the supporters of political freedom, including the freedom  to express one’s political views.  Freedom of speech and press were, at that time, becoming an essential part of a free society.

When has free speech been suppressed?

There has been has been considerable pressure at different times throughout our history to suppress unpopular ideas.  Such restrictions generally have occurred during times of war or when the government has felt threatened.  For example, before the Civil War a number of states passed laws that made printing and distributing abolitionist literature a crime.  Mobs destroyed printing presses and broke up anti-slavery meetings.  In 1837 an Illinois anti-slavery editor, Elijah Lovejoy, was murdered and his printing press destroyed.

During other difficult periods in our history, attempts also have been made to suppress free expression.  The early years of the twentieth century were marked by fears of the growing labor movement, socialism, communism, and anarchy.  In 1901 President William McKinley was assassinated by an anarchist and many states responded by passing laws which made it a crime to advocate the forceful overthrow of the government.

America’s entry into World War I only increased the feeling that the nation needed to be protected against seditious speech.  Both state and federal legislation was passed making it a crime to interfere in any way with the war effort.  The federal Espionage Act of 1918 prohibited anyone from urging resistance to the United States or to the war effort.  After the war, thirty-three states passed peacetime sedition laws.

From World War I through the McCarthy era of the 1950s, state and federal governments prosecuted numerous anarchists, socialists, and communists for advocating draft resistance, mass strikes, or overthrow of the government.  These actions raised serious questions about the right of free speech and led to a number of Supreme Court cases.

What kinds of actions might be considered forms of expression?

People express their ideas, feelings, and opinions in many different ways.  We speak, write, march in demonstrations, and wear campaign pins, and T-shirts with slogans.  We may carry picket signs and sing songs with political messages.  We may make records (CDs) or write books, articles, or letters to newspapers.  All are forms of expression, and there are many others.

Under most circumstances, all these forms of expression and others are protected by the First Amendment from violation by our federal and state governments.  Questions arise when this right conflicts with other important rights, values, and interests.

Evaluating and Developing Positions on the Scope and Limits of Freedom of Expression

Judges and other students of the Constitution such as professors of constitutional law have tried to develop standards that will help us to decide when freedom of expression may be limited.  The following are two positions that judges and others have proposed.

[A.]       The freedom of expression of groups that advocate anti-democratic ideas may be limited.

People have argued that the rights of certain groups to express their ideas should not be protected by the First Amendment.  Typically, these are groups that advocate the overthrow of our government and the establishment of a repressive totalitarian system of government.  They may also be groups that express malicious ideas that violate the dignity and feelings of other people in the community.

People argue, for example, that political groups that would eliminate the entire Bill of Rights if they came to power should not be allowed to take advantage of the protections of the First Amendment to express their  ideas. People who would deny African Americans and others the equal opportunities protected by the Fourteenth Amendment should not be allowed to express their racist ideas.

People often conclude this position by arguing that only people who agree to abide by the rules of our society, such as those in the Constitution and Bill of Rights, should be allowed to participate in free and open discussion.

[B.]       All persons should be allowed freedom of expression no matter how obnoxious or dangerous their ideas.

People holding this position say that only under very unusual circumstances should the government be allowed to limit freedom of expression.  They claim that even totalitarian, racist, and other obnoxious ideas may serve to make people defend and better understand their own values. To suppress such expression only makes those people who were denied the right to express their ideas become more hostile, eliminates the safety-valve function of free speech, and weakens society.

People also claim that to give government the power to suppress the free expression of ideas that some people find unacceptable is too dangerous. It gives government the power to decide what Beliefs and opinions are acceptable.  to make such decisions, the government would have to be given the power to investigate people’s beliefs, spy on dissident political groups, and keep files on people holding political opinions considered dangerous.

People supporting this position say the only safe way to protect freedom of expression is to protect it for everyone, no matter how obnoxious the ideas they express may be to other groups or the majority.  You may remember the quotation from the French philosopher Voltaire which summarizes this position,  “I may disapprove of what you say, but I will defend to the death your right to say it.”

What considerations has the Supreme Court used to limit freedom of expression?

The Supreme Court has taken the latter of the two positions discussed.  It is not clear whether a majority of Americans agree with such a position.  Polls have often shown that many Americans do not support the right of members of such groups as the Nazi party or the Ku Klux Klan to speak.

Even advocates of the second position recognize the need to limit the right to freedom of expression in some circumstances.  What considerations to use in making such decisions is a continuous matter of discussion and debate among scholars, judges, and other interested citizens.

Over the years, the courts have developed guidelines to use in balancing the right to free expression against other important rights and interests of society.  For example, suppose your  right to free expression could endanger the public safety or national security.  If the danger is considered great enough, the courts will decide that your right to free speech must be limited.

Some judges and historians have argued that the authors of the First Amendment did not intend it to protect all kinds of speech and press.  Their belief in the necessity of protecting freedom of expression was based on the idea that the free exchange of political ideas was essential to constitutional democracy. Consequently, speech in the First Amendment only meant political speech or, at the most, speech was considered to be worthy or valuable.  It was not their intention, some believe, to protect speech that was blasphemous, obscene, or libelous.

To some degree the courts still maintain that the speech protections of the First Amendment only apply to certain kinds of speech.  Obscenity, for example, is not protected.  However, the Supreme Court, in a series of decisions, has made it increasingly difficult to establish what is meant by obscenity.  Consequently, while obscene speech does not fall under the protection of the First Amendment, there are fewer and fewer successful prosecutions of free speech because of changing community and legal standards.

The courts have upheld laws prohibiting speech or press that present a clear and present danger to others or to society.  Examples of such speech include giving away national security secrets, lying under oath, or  libel (ruining other people’s reputation by knowingly spreading lies about them).  The courts have also said that you cannot engage in speech which could lead directly to violence or cause a  riot.  Again, the courts can limit your right to free speech if they believe it poses a clear and present danger to others.

Topic #31:   The First Amendment and Freedom of Assembly, Petition, and Association

Introduction

The First Amendment states that “ Congress shall make no law … abridging … the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”  This lesson will examine the importance and historical background of these rights. It will also discuss how these rights are protected in our system of government and consider what criteria should be used to limit their exercise.

Purpose: When you finish this lesson you should be able to explain the importance of the rights to freedom of assembly, petition, and association.  You should also be able to describe their history and in what types of situations they might be limited.

redress of grievances               public forum

lobby

What is the importance of the rights to assembly, petition, and association?

The freedom to associate with other people, to assemble in groups, and to petition the government to change its actions and policies are essential parts of the right to freedom of expression. The protection of the right to petition and assembly provided in the First Amendment demonstrates that a free society must accept not only heated political discussion but a certain amount of political activism.  These rights enable people to work together to promote their political interests  by  joining political parties and interest groups.  They also enable people to achieve their individual and social goals by joining, for example church groups, professional organizations, social clubs, and community service organizations.  All of these groups are examples of factions (see Federalist 10).

Although the right to   freedom of association is not mentioned in the Constitution or the Bill of Rights, the courts have recognized it as a basic right. It is one of the unenumerated (non listed) rights, referred to in the Ninth Amendment.

Why were the rights of assembly and petition important to the Founders?

The rights of assembly and petition were part of English common law for hundreds of years and were seen by Americans as fundamental to a  republic (constitutional representative democracy).  Historically these rights have been considered together.  It appears people thought that the purpose of the right to assemble was in order to petition the government.  The right of petition was recognized in the Magna Carta; in fact, the Magna Carta itself was a petition addressed to the king demanding that he correct certain wrongs (redress of grievances).  Over the centuries, Parliament developed the habit of petitioning the king to get what it wanted.  If the king denied its petitions, Parliament denied him the money he requested.  A  resolution of the House of Commons in 1669 along with the English Bill of Rights of 1689 guaranteed English subjects the right to petition both the House of Commons and the king himself.

The American colonists considered the right to petition as a basic right of Englishmen and used it often.  Since they could not send representatives to Parliament, they saw the right of petition as an important means of communication with the British government.  One of the frustrations of the colonists, in the years before the Revolution, was the feeling that Parliament was ignoring their petitions.

The royal governors attempted to silence the more radical colonies by shutting  down colonial assemblies. In response, Americans assembled on their own.  Numerous committees, conventions, and congresses were formed as the colonists organized to defy Parliament. By the end of 1774, all but three colonies had appointed assemblies on their own without royal approval and the First Continental Congress met in September of that year.

The Continental Congress of 1774 protested that the  colonists “have a right peaceably to assemble, consider of their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.”  In other words, all attempts by the Parliament to restrict the colonists’  right to assemble, petition, and/or protest are  wrong (illegal).  When the British ignored the colonists’ complaints, they decided it was necessary to free themselves from British rule.  The Declaration of Independence listed the king’s refusal to pay attention to the colonists’ petitions as one of the causes for revolution.

One could argue that the right of assembly marked the beginning of the American colonists acting together against Great Britain.  The beginning of the Declaration of Independence reads,  “ A Declaration by the Representatives of the United States of America, in General Congress Assembled.”

Most states protected the rights of assembly and petition, either within their state constitutions or in their state bills of rights.  During the ratification debates, a number of states included protections for assembly and petition in their recommended amendments to the Constitution.  After little debate, these rights were included in the First Amendment (which because of ‘incorporation’  applies to all of the fifty state governments).

* [All but two of the 50 state constitutions include their own protections of the rights of assembly and petition.]

How have the rights of assembly and petition been used?

Despite the protection of the right to petition in the federal and state constitutions, it has sometimes been violated by both levels of government.  In the 1830s,  Congress received numerous petitions urging that slavery be abolished in the District of Columbia (commonly known as Washington,  D.C.).  The feeling against abolitionists was so strong that in 1836 Congress succeeded in passing a “gag rule” to prevent debate on all petitions related to slavery.  This gag rule not only prevented any discussion of ending slavery, it also limited the ways non-voters could express their views.  The use of the right to petition was an important way for women, blacks, and others, denied the right to vote, to communicate with public officials.

Former president John Quincy Adams, a member of Congress at that time, believed the gag rule was fundamentally wrong and should be resisted. he saw it in the same type of tyranny the Founders fought against during the Revolution. During every session of Congress, despite bitter opposition, he fought for its repeal; in 1844 he finally succeeded.

In 1894  there was a serious depression in which millions were homeless and out of work.  A group of unemployed led by Jacob Coxey marched to Washington to petition the government for some relief.  President Grover Cleveland ordered the leaders of the march to be arrested for stepping on the grass of the Capital.

During the Great Depression, a “Bonus Army” of World War I veterans marched to the nation’s capital to petition Congress for payment of their military bonuses.  Congress refused to support the bill they wanted and most marchers returned home.  However, several thousand remained in a camp outside the city.  President Hoover ordered General Douglas MacArthur and the U.S. Army to drive the veterans out of the camp. He did so with tanks, guns, and tear gas, killing two veterans and wounding several others.  Fifteen years earlier the veterans had fought in the same army as the men who now attacked them.

The importance of the right to assemble is nowhere better illustrated than in the civil rights movement of the 1950s and 1960s.  Under the leadership of the Reverend Martin Luther King, Jr., thousands marched for “Jobs and Freedom.”  Reverend King said,

“We march in the name of the Constitution, knowing that the Constitution is

on our side. The right of the people peaceably to assemble and to

petition the Government for redress of grievances shall not be abridged.

That’s the First Amendment.”

Today, the right to petition is widely is used at the local, state, and federal levels.  The right to circulate petitions for signatures to create mass pressure on any of the agencies of government may be the most influential way petitions are used today.

However, the right to petition includes much more than formal petitions.  Calls, emails, and letters to public officials are also ways of petitioning the government.  The right to petition is not limited to people wishing the government to correct wrongs.   It is also used by individuals, groups,  and  corporations  to  lobby government officials to persuade them to adopt policies that will benefit their interests.

What limitations may be placed on the right of assembly?

It is important to remember that the government is responsible for making sure that demonstrations are not only  peaceable  and do  not endanger  community  safety,  but  also that  they  do  not unreasonably inconvenience the public.

Public property is owned by the people. It would appear, therefore, that people have a right to assemble on public property to speak and in other ways demonstrate their views on different issues.  However, as with all other rights, in some situations it is reasonable and fair to limit this right.

As you might imagine, different judges and students of the Constitution have taken different positions on this question. Some argue that people should be able to assemble on any public property so long as it does not disrupt the normal use of that property.  Others argue that the right to use public property should be limited to only those places, such as street corners and parks, that are traditionally associated with free speech.

Tough examples to think about:  The following issues raise questions about when people should be able to assemble and demonstrate on public property.

A.         Should a group be allowed to demonstrate during rush hour on a bridge over a freeway?

B.         Should demonstrators be allowed to march in front of a private home to protest the     actions of the  homeowners?

C.         Should people have the right to assemble and march through a shopping mall?  A public       school while it is in session?

D.         Should pickets be allowed to block the entrance to a place of work or business?

E.         Should pickets be allowed across the street from the entrance to a place of work or    business?

F.         Should a group be allowed to demonstrate by sitting on the floors of the hallways of   government buildings such as city halls, universities, or courts?  Should they be able to sit in the offices of  government officials?

What arguments might be given in each situation by people supporting the right to demonstrate?

What arguments might be given by those opposing the demonstrations?

What competing values and interests are involved in each of the above situations?

What limits has the Supreme Court placed on freedom of assembly?

Not too many people would argue that the First Amendment protects the right of a group to demonstrate on a freeway  in the middle of rush hour traffic, to disrupt a courtroom hearing, or to invade a medical clinic. The First  Amendment  has  not  been  interpreted  to  protect  riots  or  other  violent  demonstrations.   In general, it has been assumed that the government has a right to impose time, place, and manner restrictions on the right to assemble just as it does on the right to free speech.  The courts have said that any regulation must  (1) be designed to protect a legitimate government interest and not intended to suppress free speech or assembly and  (2) must be applied in a non-discriminatory manner.

The courts have also ruled that the right of assembly extends to meetings held in  public forums such as streets, parks, sidewalks.  Free access to public property has historically been especially important for people who cannot afford more costly ways to communicate, such as the press or television.

How is the right of association protected?

Although the right of association is not mentioned in either the U.S. or state constitutions, the courts have said that  it is implied by the other rights in the First Amendment — in particular, by the rights of free speech and assembly.  It has been assumed that the right of association is part of what it means to live in a free society.  The government should not interfere with your right to join others, whether it be in private clubs, college fraternities, political parties, professional organizations, or labor unions.

The first time the Supreme Court dealt with an issue regarding the right of association was in 1958.  The state of Alabama had ordered the National Association for the Advancement of Colored People (NAACP) to disclose its membership lists.  During that time, members of the NAACP were engaged in a bitter civil rights struggle.  The Supreme Court thought that if the NAACP membership lists were made public, this might lead to hostile reprisals against its members.  The Court ruled that freedom of association is protected by the First Amendment and that Alabama’s demand for the membership lists violated this right (NAACP v. Alabama, 1958).

About the same time as the Alabama ruling, however, the Court upheld laws which required disclosure of membership lists of the Communist party because the organization advocated the violent overthrow of the government (Barenblatt v. U.S., 1959).

One of the questions that has arisen is whether the right of association also means you have the right not to associate with certain people. Should private organizations be able to prohibit some people from becoming  members?  For example, should the government be able to require private golf courses to admit blacks or private men’s clubs to admit women?

In cases involving this question, the Supreme Court  has ruled that the government cannot interfere with whom you wish to associate in your private life.  However, it has ruled that in some situations that go beyond close personal relationships and involve larger social purposes, the government may force private organizations not to discriminate on the basis of race, sex, or ethnic background.

As you can imagine, these issues can be very difficult.  The difficulties reflect the tension between two important ideals: (1) the right of each individual to live his or her own life as free as possible, and (2) the elimination of unfair discrimination in American life.

Keep in mind that the right to associate can be said to lie at the very heart of the American experiment.  One hundred and fifty years ago,  Alexis de Tocqueville (1805 – 1859), the French observer of American life, commented on Americans’ unique tendency to come together in groups to solve common problems.  The exercise of the right of association was, de Tocqueville believed, one of the outstanding characteristics of American citizenship.  When combined with America’s strong work ethic (often called the Protestant work ethic because of Calvin’s influence)  he predicted an eventual world power.

It is difficult to imagine the development of American political parties and labor unions, as well as a host of other organizations that play important roles in our civic life, without the protection of this right, as well as those rights of speech, religion, petition, and assembly that are explicitly protected by the First Amendment.

CRITICAL THINKING EXERCISE

Taking a position on a First Amendment Issue

The following case involves most of the First Amendment rights you have been studying — religion, speech, and association (Board of Education of the Westside Community Schools v. Mergens,  1990).

Mergens v. Board of Education

In 1984 Congress passed the Equal Access Act which prohibits any public secondary school which receives federal funds and provides facilities for various extracurricular organizations from discriminating against student clubs because of their religious or philosophical orientation.

Westside High School is a public school in Omaha, Nebraska, with about 1500 students. Students have the opportunity to participate in a number of groups and clubs, all of which meet after school on the school’s premises. Among these groups are the Creative Writing Club, the Math Club, and the Future Medical Assistants.  School board policy requires that each group have a faculty sponsor and none can be sponsored by any organization that denies membership based on race, color, creed, sex, or political belief.

In January 1985 Bridget Mergens met with the Westside principal to request to form a Christian Club whose purpose would be to “permit students to read and discuss the Bible, to have fellowship, and to pray together.”  The club would be open to all students, regardless of religious beliefs. There would be no faculty sponsor.

Both the principal and the district superintendent denied the request. They said, first of all, the sponsor requirement was not met. More importantly, permitting the religious club to meet on school property would be unconstitutional. The school board upheld the denial.

Mergens and her parents sued the school for violating the Equal Access Act and the First Amendment protections of free speech, association, and free exercise of religion.  The trial judge ruled in favor of the school saying that the Equal Access Act did not apply because all the other clubs at the school were related to curriculum and linked to the school’s educational function.

The U.S. Court of Appeals reversed the lower court ruling because it said there were other school clubs, such as the chess club, that were not directly related to the school’s educational function.  The school district appealed to the Supreme Court.

Questions to consider:

1. What are the most important facts of the case?

2. What First Amendment issues are raised in this case?

3. What are the arguments for allowing the group to meet?

4. What arguments can be made for prohibiting the group from meeting?

5. How do you think the Supreme Court decided?

***Form your answers and then look on the next page to see how the Supreme Court decided.***

Facts of the Case:

Westside School district, located in Nebraska, denied permission to a group of students who wanted to form a Christian Club in their high school. The school district decided that the club could not have a faculty sponsor (which was required for all after-school clubs) because having one would have the effect of endorsing the religion. The students alleged the school’s decision violated the Equal Access Act requiring that groups seeking to express “religious, political, philosophical, or other content” messages not be denied the ability to form clubs.

Decision: this is what the Supreme Court decided … and why.

By an 8-1 decision the Supreme Court decided that the students had the right to begin their Christian Club.

Majority Opinion: (Justice O’Conner)

The school was subject to the Equal Access Act because it maintained other ‘limited open forums’. The Lemon test is used to assess the constitutionality of the EAA. 1) The Act itself is neutral because its purpose of creating discourse is secular. Although it endorses both secular and religious speech, it does not either endorse or disapprove of the subjects discussed. 2) The Act does not have the primary effect of endorsing religion for several reasons. First, secondary students are mature enough to recognize that allowing a religious club to exist does not prove endorsement. Also, the public officials have little or no role in the activities of the club. Finally, other groups may be formed to counter the message offered by the religious group. 3) There is no risk of excessive entanglement. Faculty monitors are excluded from participating in the activities of the club, non-students are not permitted to participate, and the school itself is not allowed to sponsor the group.

Significance:

This decision permitted religious activities to take place in public schools. The Court believed that it was important that the activity be student-led and initiated in order to avoid excessive entanglement.

If it were faculty led and initiated then it would fail the Lemon Test.

Amer. Govt. – Unit One: Political Philosophy

Mr. Bogan

Topic / Lesson # 1 (Natural Rights, State of Nature, and the Dec. of Ind.)

1. “To be _______________ of __________________ is to remain always a _______________.” – Cicero

“ Those who expect to be both _________________________________________________________

_______________________________________________________________ be.” – Jefferson

“_____________ up __________________________________________________________________

________________________________________ destitute.” – Proverbs 31:8

“… government is ___________________________________________.” Henry David Thoreau

2. What was Jon Jay really saying when he said, “That men should pray and fight for their own freedom and yet keep others in slavery is certainly acting a very inconsistent as well as unjust …”?

3. Political Scientist Rudolph Rummel estimates that over 100 million people have been killed by non-free, and usually officially and militantly atheistic, governments. Do these numbers include the number of people who have died in the various wars of the 20^th century?    YES / NO                       How did most of these people die?

4. Does there seem to be a correlation between non-free governments and death?  YES / NO      If so, give a statistic that supports your answer.

5. Alexander Hamilton said, “Give all the power to the many (pure democracy), they will oppress the few. Give all power to the few (autocracy or dictatorship), they will oppress the many.”   Does this seem like a no win situation?   YES / NO

6. The protection of what rights was, according to the Declaration of Independence, the main job of government?  ________________ (or unalienable) rights.

7. What is the difference between a Founder and a Framer?

8. What idea did Prime Minister Thatcher say America was built on?

9. What does the term worldview mean?

10. The Founders worldview had at its foundation the ________________________________________ – a

philosophy that __________________________________________________________________

__________________________________________ with.

11. The _____________________________ of the Founders, from their ____________________________

heritage, formed the foundation of this worldview.

12.  How many people, according to the F.B.I.,  were murdered in the U.S. in 2005?  _______________

13. According to the Declaration of Independence:

What type of rights do all people have, and where do those rights come from?

Why are governments established?

Where do just [legitimate] governments get their power from?

When do the people have the right to alter or abolish [right to revolution], if needed, a                          government?

14. What did the Virginia Declaration of Rights say?

15. What did Alexander Hamilton say about our natural liberty?

16. Who was the most important influence on thinking of the Founders at the time of the                                   Revolution?

17. Did the Founders see people as only bad?    YES / NO

18. What was, according to the Founders, government’s main job?

19. What does the term state of nature refer to?

20. What did John Locke say about the law of nature?

21. What role did “consent” play in Locke’s views about government?

22. List the three [3] rights that Locke believed to be natural rights

1.                                             2.                                             3.

23. Which of John Locke’s natural rights is not listed in the Declaration of Independence? _________________________

24. “Why has _______________________ been instituted at all?   Because ________________________________________

_______________________________________________________________________________________________.”                                                                                                                                                                                                                                                            (Alexander Hamilton, Federalist #15)

25. “If _______ were ____________, ______________________ would ______ be necessary.”

(James Madison, Federalist #51)

26. If people were completely and totally good, would it matter what type of government there was?  ______

Why?

27. If people were completely and totally bad, would it matter what type of government there was?   ______

Why?

28. Describe Locke’s view of human nature.

29. According to Locke, why do people submit to government?

30. How secure (safe) would people’s rights be in a state of nature?

Why?

31. What is the name of Locke’s book(s) on government?

32. Who was the greatest influence on our early judges?

33. Who wrote the Commentaries on the Laws of England?

34. What did historian Russell Kirk say about Blackstone?

35. What two things did Americans learn from Blackstone?

1.

2.

36. What did Blackstone call natural rights?

Why do you think he used that term?

37. According to Blackstone, what was the primary end of human laws?

38. What is the difference between a natural [absolute] right, and a government conferred right such as the minimum wage?

Topic / Lesson # 2 [Some questions require you to review Lesson (Topic) #1]

1. What is the problem of the state of nature?

What was John Locke’s solution called?

2. ______________ said that the best way to _____________________________________________________________________________________

_____________________________________________________________________________________________________________rights.  To gain this protection, he believed ______________________________________________________________________________________ a government …

3. The fact that people ________________________ the ________________________________________

_________________________, so it must be enforced.

4. ________________________ also entails imposing ________________________, provided they do not

exceed the natural law l limits of _____________________ and ______________________ — that is,

provided they do not go beyond what is ______________________________________________ and

_________________________ of __________________________________________________.

5. Why doesn’t self-enforcement work very well?

6. The remedy for this inconvenience is for all ________________________________________________

________________________________________– to be a ____________________________.

7. The mutual promise or ________________________________________________________________

____________________________________________________, or social covenant. Once this

agreement is made, people are said to have __________________________________________

_______________________________ the state of ___________________________.

8. Locke, the Founders, and other Natural Rights Philosophers said:

*      The___________________________________________________________________________________________________________________

__________________________________________________________

*      Governments__________________________________________________________________________________________________.

*      If____________________________________________________________________________________________________________________.

9. According to the Declaration of Independence and the Preamble to the Constitution, where do governments get their authority to rule?

10.  How might members of government be removed in a nation if there were no agreed-upon or peaceful means of removing them?  What might this situation lead to?

11. What do you give up in Locke’s social contract?  What do you get?

12. Who said the state of nature has a law of nature, to govern it,  which obliges everyone… “no one ought to harm another in his [or her] life, health, liberty or possessions…?”

13. What did Blackstone mean when he said that our “natural liberty” [our unregulated freedom in a state of nature] is set in a more restrained framework when we enter society and come under the authority of a government [social contract]?

14. List three ways our government attempts to make our life more secure. An example would be

the  FDA (Food and Drug Administration) which attempts to protect us from food additives,

drugs,  etc. that could harm or kill us.

1.

2.

3.

Topic / Lesson # 3

[Remember - some questions require past lessons to answer thoroughly]

1. In Fed. #10 was Madison worried about an overbearing majority or a radical minority?

2.  What did Churchill mean when he said that “democracy is the worst form of government except for all  those other forms that have been tried” from time to time?

3. In the quotes on page 10, does it sound like Adams and Burke are for or against democracy?

4. How long did the Roman Republic last?

5. What book was published in the same year as the Declaration of Independence?

6. What was Rome the prime example of in the ancient world?

7. The territorial holdings of _______________________________________________________________

____________________________ had. … Thus, it _____________________________________

____________________ govern. The result was a ______________________________________

_______________________________________________________________________________

_____________________________________________________ (common welfare).

8. During its glory years _________________________________________________________________

_____________________________________________. This is known as ________________.

9. How was Rome’s Senate different from our U.S. Senate?

10. Even though they had moments of ___________ achievement, the ancient city-states of ____________

and Sparta were __________________.

11. Who was Cincinnatus, and why is he famous?

12. When did Marcus Tullius Cicero live?

Who were his contemporaries?

13. What did John Adam’s say about Cicero?

14. What did Cicero say about “true law” and the “universal law of Justice”?

15. The ________________________________ was, according to Johnson “the ____________________

_____________________________________________________________________ possible.”

16. What did historian Paul Johnson say was the difference between the American and French Revolutions?

17. How many colonists did the Great Awakening touch? __________________________

18. Protestant ideas and practices that had a major influence on the American revolution were:

• ______________________________________________________________________________________________________________________________________________________________
• ______________________________________________________________________________________________________________________________________________________________
• ______________________________________________________________________________________________________________________________________________________________
• ______________________________________________________________________________________________________________________________________________________________

19. What did Franklin mean when he said, “No longer virtuous no longer free, is a Maxim as true with regard

to a private person as a Commonwealth”?

20. What type of qualities fall under the category of civic virtue?

21..  What features of the British government of his day led Montesquieu to think that it was the best way to maintain a republican government?

22. What did Montesquieu mean by a mixed constitution?

23. Why did Montesquieu believe that a republican government would work best in a small nation?

23. What were the more likely sources of corruption?

24. What is another term for the common welfare?

25. If a nation does ________ protect the ____________________________________________________

_______________________________________________________________________________

_______________________________________________________________________________

are excellent examples of this.

26. What three natural rights did Locke identify?

_________________   ________________________   ___________________________________

27. Our right to _________________________ flows from our right to _______________________ which  flows from our ______________ to _________.

28. How did Madison distinguish between a “democracy” and a “republic”?

29. Key point – the citizens must possess the ____________________________ necessary to elect people

of wisdom and character.

30. What was the additional part of a republican government that the Founders thought was necessary?

Topic / Lesson # 4

1. What is a constitution?

Do they have to be written?

2. What can you learn about a nation’s government by studying its constitution?

3. All governments have constitutions.  Only some of these governments are constitutional governments.  Explain the essential differences between constitutional governments and autocratic or dictatorial governments.

Why is the word enforceable critical to the definition of a constitutional government?

4. What characteristics does the “higher law” of a constitutional government have?

*

*

*

*

*

*

5. Match the following: 

PROVISION IN CONSTITUTION                                                                          PRINCIPLE

__    1. Constitution is the supreme law of  the land.                                                       a. Changes in constitution according to law.

__    2. Congress appropriates money.                                                                                b. Private Domain.

__    3. Federal courts resolve disputes                                                                                c. Control over distribution of resources.

__    4. Bill of Rights outlines rights of the people.                                                           d. Control of conflict.

__    5. Amendments must be proposed by Congress, and ratified by states.            e. Constitution is “higher law”

—————————————————————————————————————————————————————————————————

__    1. “Give all power to the many, they will oppress the few, Give all power                                          a. Mason

to the few, they will oppress the many.”

__    2. “There are two passions which have a powerful influence on the affairs                                     b. Hamilton

of men.  These are ambition and avarice; the love of power and

the love of money.”

__    3. “From the nature of man, we may be sure that those who have power in                                       c. Franklin

their hands … will always, when they can … increase it.”

6.  What does the following quote mean?  “Liberty lies in the hearts of men and women: When it dies there, no court can ever do much to help it.  While it lies there, it needs no constitution, no law, no court to save it.”

7. Identify or define the following:

higher law -

private domain –

Topic / Lesson # 5

1.  What three powers of government are usually separated in modern constitutional governments?

*

*

*

2. To which branches of our government are the powers you have identified given?

*

*

*

3. In Federalist #47 James Madison makes it clear that placing all three powers of government in the same hands is the very definition of tyranny.  Why is this so?

4. In constitutional governments, a separate branch is often “checked” or “balanced” by the other branches.  Give two examples of these “checks and balances.”

5.  The separation and sharing of powers may make quick responses to common problems unlikely.  Why did the Framers choose these arrangements over other, possibly more efficient, ways of organizing a government?  For example, a dictatorship is very efficient.  Things get done fast…. or else!

————————————————————————————————————————————————————————————————

From Appendix A: Frederic Bastiat – THE LAW

1. What caused men to make laws in the first place?

2. Who was Bastiat? Why did he write?

3. What three gifts did Bastiat believe, were superior to and, preceded all human legislation?

4. Each of us has a _____________________ –  from God – to ___________________________________

____________________.

5. What is, according to Bastiat, law?

6. If every person has the right to defend – even by force – his person (life), his liberty, and his property; what, according to Bastiat, follows?

7. Thus the principle of _______________________ – its reason for ________________, its lawfulness – is         based on _______________________________.

8. Is Bastiat saying that it is OK for the law, common force, to be used to destroy a person’s life, liberty, or property?  Why, or why not (explain)?

9. The _______ is the ____________________________________________________________________

_________________________________________________________________________ forces. And this ________________________________________________________________________

_______________________________________________________________________________________________________________________________________ to reign over us all.

10. Under such an administration … When successful, we would ______ have to _____________________

_______________________________________________________________________________

_________________________________________________________________________ frost.

11. The ______ has gone ______________ than this; it has _________________________________ to its

own purpose.

12. How has the law, according to Bastiat, been perverted?

13. What are common aspirations among all people?

14. What did Bastiat say was no rash accusation?

15. The annals of history bear witness to what truth?  What is the evidence?

16. Where does this fatal desire originate?

17. What did Bastiat say was the origin of property?

18.  What did Bastiat say was the origin of plunder, and when will people resort to plunder?

19. When does plunder stop?

20. What, then is evident, when it comes to the proper purpose of law?

21. When do people naturally rebel against injustice?

22. What do people do when plunder is, organized by law, for the profit of those who make the law?

23. What two reasons does Bastiat give for people attempting to gain political power?

24. What did Bastiat say happens when the right to make laws is limited to a few persons?

25. What did Bastiat say would happen when participation in making laws becomes universal?

26. Bastiat wrote, “It is impossible to introduce into society a greater change and a greater evil than this: the conversion of the law into an instrument of plunder.”  What did he mean, what are the consequences?

27. Did Bastiat believe that things were “just” if they were legal? Explain.

28.  From what you read in this unit, does separating powers, attempt to address Bastiat’s concerns? Explain your answer.

————————————————————————————————————————————————————————————————-

“The main thing is to keep the main thing the main thing.”

Summarize the main ideas of each lesson (topic) in Unit One. This is required, not optional. I did the first one  for you as an example.

Topic #1 - Natural Rights & the State of Nature

- All people have natural rights that they are born with and deserve to keep (life, liberty, property).

- Because people are often evil (human nature) life without government (state of nature) would be

crazy and dangerous.

Topic #2 – _______________________________________________________________________________________________________

Topic #3 – _______________________________________________________________________________________________________

Topic #4 – _______________________________________________________________________________________________________

Topic #5 – _______________________________________________________________________________________________________

UNIT TWO:    TOPIC SIX

1. What is the oldest written constitution still in use?

2. Define the idea known as the divine right of kings.

3. Why were the people called subjects?

4. What took place on October 14, 1066?

5. What was imposed on the people of England?  Describe the system of “orders” that was established. (Include the actual orders.)

6. What was the Great Charter? What groundwork did it lay? Who did it inspire seven centuries later?

7. Why was King John poor and unpopular?

8. What was John’s nickname?

9. Describe King John’s dispute with Pope Innocent III.

10. What did the final version of the Magna Carta, issued in 1225, leave out?

11. Over the next _______ years, the _________ _______ was __________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

__________________________________________________________________ we have today.

12. Referring to the Magna Carta itself (section 61), what was given and granted to the barons to secure the provisions of the Magna Carta?

13. From the ‘points you need to remember’ list the traditional rights of the nobles that the king could not take from them.

a.

b.

c.

d.

e.

f.

14. Describe ‘common law’ and how it developed.

15. The Magna Carta showed how a _______________________________________________________

_____________________________________________________________________________

___________________________________________________ . It was the start of a good thing.

16. Describe the major function of parliament as it first began to take shape.

17. Describe the Model Parliament.  What did Edward I say that was a call for broadly representative government?

18. Describe how parliament changed in 1327?

19. What was a Commons Petition?

20. Describe the usual procedure when parliament assembled.

21. How did the War of the Roses affect the power of the nobles?

22. Who used parliament to take England out of the Roman Catholic Church?

23. Describe the two houses of parliament, and who they represented?

House of ________________:

House of _____________________:

24. In the Petition of Right (1628) what does section III guarantee?

Does section X require representation for taxation?  Yes / No

25. What king was executed in in 1649 during the English Civil War?

26. What represented the end to the divine right of kings?

27. What king does the Bill of Rights criticize?

28. With the passage of the English Bill of Rights kings and queens were not allowed to:

1.

2.

3.

4.

5.

The following three (3) principles were included:

1.

2.

3.

29. Put the following in correct chronological order.                                        Date:

a. Charles I is put on trial and executed.                                                  ____

b. William the Conqueror wins the Battle of Hastings                        ____

c. The Magna Carta is signed                                                                      ____

d. Parliament creates a Bill of Rights                                                        ____

e. Oliver Cromwell becomes leader of England                                       ____

f. The Petition of Right is signed                                                                 ____

Order: ___   ___   ___   ___   ___   ___

30. In the chart below is a list of provisions found in the Magna Carta and/or the English Bill of Rights.  Using the Constitution of the United States found in the back of your textbook locate where similar provisions are found.  The first two are done as examples to help get you started.

______________________________________________________________________________

RIGHTS GUARANTEED IN THE MAGNA CARTA                                          WHERE FOUND IN

OR THE ENGLISH BILL OF RIGHTS                                                                  THE CONSTITUTION

____________________________________________________________________________________________

1. Freedom of the church from control by the king.                                         eg  First Amendment

2. The independence of the courts of England                                                         ________________

3. The right of those who owned land to a fair trial.                                                ________________

4. The freedom from unnecessary searches

of one’s home                                                                                                    ________________

5. The king was not allowed to collect taxes

without the consent of Parliament                                                              ________________

6. The king was not allowed to interfere with

the right to free speech and debate                                                             ________________

that went on in Parliament

7. The king could not require excessive bail

or administer cruel and unusual punishments                                        ________________

8. The king not declare that laws made by

Parliament should not be obeyed                                                               ________________

——————————————————————————————————————————————————————————-

POSSIBLE ANSWERS [CHECK THE CONSTITUTION IN THE BACK OF YOUR TEXT BOOK FOR THE CORRECT

ANSWERS] -   Article II, Section 3        Article I, Section 8                   1st Amendment

8th Amendment                        4th Amendment                        Article III                  5th and 6th Amendments

_________________________________________________________________________

TOPIC SEVEN

1. Who were the Pilgrims?

2. Describe the Mayflower Compact.

3. What was a charter?  What did they include?

4. Describe the similarities between the colonial governments and the English government.

5.  What were judges called?______________________

6.  Since the colonists believed that one of the main purposes of constitutional government was to protect the individual’s property rights, they limited the right to vote to those men who owned property.  What arguments can you give in support of this policy?

What points would you develop if you oppose this policy?

7. For much of American colonial history, the thirteen colonies were allowed a great amount of freedom to govern themselves as they liked. What circumstances in England permitted this?

8.  At the time of the American Revolution the percent of the men in England had the right to vote was 10%.  The percent in the colonies was 70%.  Who had the most freedom?

9. Why weren’t women, at this time,  given the right to vote in England?

10.  What colony gave women the right to vote?    Freebee: New Jersey

TOPIC EIGHT

1. Why were more ministries established in England during the late 1660s?

2.  What do all bureaucracies tend to suffer from?

3. It became ________________ for the ________ to ___________ members of Parliament.

4.  The British government, for the most part, believed that its policies in the colonies were fair and just.  Develop an argument that supports the British view.

5. The American __________________ did become alarmed when the ____________________ government                       began to develop an increased ___________ in tightening its _________________over them.

6. Describe how the colonists view of the British differed from the British view of the colonists.

7.  What were Writs of Assistance?

8.  Who argued in court that the Writs of Assistance were contrary to natural law?

9. Describe George Grenville’s view of Americans.

10. How was George III different from his father and grandfather? What did his mother tell him?

10. How is the Sugar Act of 1764 related to the Molasses Act of 1733?

11. Who proposed that all colonial legal documents be stamped, for a fee?

12. What was the problem (for Britain) concerning the Stamp Act and journalists?

13. Between ________________, ___________________ and the opportunistic politician

Charles ________________________, the relationship between Great Britain and the

Colonies will __________.

14. Describe the key legislation and events, for each year, including the key people, that resulted in the colonicts wanting to break all ties with England.  Be very thorough (complete) in your listing!  All key people, events and legislation are on the exam.

1764 –

1765 –

1766 –

1767 –

1768 –

1769 –

1770 –

1772 –

1773 –

1774 –

1775 –

1776 -

TOPIC  NINE

1.  What is the purpose of government as described in the Declaration of Independence?  Is it similar to, or different from, the view of the natural rights philosophers?  Explain.

2.  Why do you think the original edition, or rough draft, was changed?

3. From  the DECLARATION OF INDEPENDENCE [2nd paragraph] (see Topic #1) answer:

What two truths are sefl-evident?

_________________________________

How are these rights secured?

_________________

Where  do just powers  come from?                        ____________________________________________________________

4.  In _____________ slavery was legal in every state in America.  Yet by _________, when the Constitution was written, slavery was well on its way to ______________________ throughout the ______________________.

5. What role did Ben Franklin play in the abolition movement?

6. What did the following say about slavery:

John Adams -

George Washington -

James Madison  [at the convention]-

7. What did Madison say in Federalist 54 about southern laws, nature, and slavery?

8. The demand for abolition grew in the __________________________________________________________________________________________

______________________________________________________________________________________________________________________

________________________________________________________________________________________the real ground of their opposition to Britain.

9. What happened in Massachusetts in 1774 [concerning slavery]?

10. What did the First Continental Congress do in 1774?

11. What did Vermont do in 1777?

12. What happened in 1779?

13. How did New Hampshire and Massachusetts end slavery in the 1780′s?

14. What states ended slavery between 1783 and 1804?

15. What did Congress do in 1787?

16. What did the Mississippi Supreme Court state about slavery in 1818?

17. In what case did the Supreme Court falsely state that blacks had never been citizens of the United States?

What evidence proves that the Supreme Court was speaking falsely.

18. How did the Great Awakening help the abolition movement?

19. When Henry David Thoreau spoke of the “eternal and only just CONSTITUTION,…” what was he referring to?

20. Describe the Great Awakening.

Who did the revival begin with?

21. Historian Alan Heimert argues that Calvinism and ______________________________________ provided

__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
____________________________________ of the _____________________________ Revolution.

TOPIC TEN

1. What did the Continental Congress do in May, 1776?

2. Why were many of the state governments at this time little more than revolutionary committees?

3. How many states acting during 1776 and 1777 submitted their constitutions to the people for ratification?  _____

4.  What ideas stated in the Declaration of Independence were included in the state constitutions written during and after the Revolution?

A.

B.

C.

D.

E.

5. Describe one way by which state constitutions ensured that the legislature would be able to dominate the governor. In other words, give an example [evidence] of Legislative Supremacy.

6.  Why did most state constitutions give most of the powers of government to the legislature (Leg. Supremacy)at the expense of the other branches?

7. Why was the Massachusetts constitution different?

8.  Which state constitution is most similar to our national constitution? _______________________________

9.  Describe how the Massachusetts constitution differed from those of the other states.

TOPIC ELEVEN

1.  What important powers were denied the national government by the Articles of Confederation?

2.  Why do you suppose the smaller states were satisfied with the government set up by the Articles of Confederation?

3.  How might the experience of the Founders with the state governments have affected their belief in the importance and role of civic virtue in a republic?

4.  What are “factions”? Why they were considered a problem for American government in the 1780s.

5. List two modern organized groups that the Founders would call factions.

1.

2.

6. Write yes next to each power that the national government had under the Articles of Confederation, and no next to those powers the national government did not have.

A.  To regulate trade between two or more states                    ____

B.  To carry out laws Congress passed.                                      ____

C.  To make treaties with foreign nations.                                ____

D.  To tax.                                                                                           ____

E.  To require states to abide by national treaties.                  ____

REVIEW  QUESTIONS FOR UNIT THREE

“THE CONSTITUTION”

1.  Describe the members of the Philadelphia Convention as a group.

2.  What was the most contentious issue at the convention?

3.  According to the new Constitution,  where is political legitimacy located?

4.  The Constitution is, by its very nature, a  ________________________________________________________

_____________________________________________________________________________________________

_____________________________________________________________________________________________

_____________________________________________________________________________________________

______________________________________________,  limitation on government.

5. How does the Constitution limit government in the “vertical” sense?

6. How does the Constitution limit government in the “horizontal” sense?

TOPIC 12  QUESTIONS -

1.  What took place in September of 1786?

2.  What was the original  purpose for calling a meeting in Philadelphia in 1787?  Why was the purpose changed?

3.  How many delegates were invited? _______ How many attended? _________  What was the  average age?

______  Who was the oldest? ________________________  What was the dominate occupation of those who

attended the convention? _____________________  About how many were college graduates? _________

Which college had the most representation? ____________________

5. Who was the presiding officer of the Convention?     What was his nickname?

6.  Why did Washington decide to attend the Convention?

7.  What did Gov. Morris say to Washington concerning his presence and role at the convention?

8.  Who had  the  greatest influence on the organization of the national government developed at the convention?      What nickname was given to him as a result of his role?      Why was  his influence so great?

9.  Who kept the official notes of the convention?    _________________________________

10.  Describe  The Federalist (The Federalist Papers).

11. Describe the role of the following:

Ben Franklin -

Gouvernor Morris -

Alexander Hamilton -

George Mason -

12.  Why were the following not at the Convention?

Thomas Jefferson -

Thomas Paine -

John Adams -

Patrick Henry -

13.  What was the original starting date? ___________  When did it actually begin? _________________________

14.  What two states had the most impressive delegations?

a.                                                         b.

15.  What state never sent a delegation? _____________________________________

16. Almost immediately the Framers agreed on two things.  What were the two things that the Framers quickly agreed to?  WHY?

17. How many votes was each state given? ________

18.  … in less than ______ months  the Framers were able to create a constitution that has lasted for over

_______________________ years. It is the _________________________________________________ world.

Questions for  TOPIC 13

1.  What were Madison’s strengths?

2. Who presented Madison’s Virginia Plan on the floor of the convention?        _________________________

3. Who was the most dazzling speaker at the convention?    ________________________________

4.  Many of the ____________________ had ______________________________________  coming   to  the

convention __________________________________________________________________________.  They

were convinced of the  _____________________________________ a  new _____________________________.

5.  Who did most of the work on the Virginia Plan?               ______________________________________

7.  What is the most important thing to remember about the Virginia Plan?

8. The Articles were a _________________________________________________________________________

____________________________________________________ , not upon  the  people directly.

9.  A  ____________________________________ can act __________________________upon the people directly.

10.  List five [5] major points of Madison’s Virginia Plan.   For each point that you select, state how it differed, if it did, from the existing arrangement under the Articles of Confederation.

1.

2.

3.

4.

5.

11.  The most important difference of opinion at the convention was between delegates from the large and small states.  On what issue did they differ the most?  Why?

12.  What was the crucial (main) difference between the New Jersey Plan  and the Virginia Plan? (One created a truly national government, and the other (essentially) continued the system of the Articles — but with badly needed improvements.)

13. Why was the Virginia Plan, with changes, chosen by delegates as the basis for the new government?

QUESTIONS FOR TOPIC  14

1. Why did the Constitution separate the powers of government?

What is meant by  checks  and  balances ?

What is meant by  inner  check ?

Where do ALL revenue measures originate?

Where are the general powers listed?

2.  Define equal representation.

3. Define proportional representation.

4. The main difference of opinion at the Constitutional Convention was over the question of representation in the legislative branch of the new government.  What was this difference?   Explain how   it was resolved?   [Your answer should include the major provisions of the Great Compromise.] (Hint: large vs. small states.)

5.  What was the Great Compromise also known as? By how many votes did it pass?

6. What does enumerated powers mean?  Why did the Framers want enumerated powers?

7. Where does the list of what Congress can do appear?   _____________________________________

8. What power does the   Necessary and Proper Clause give Congress?

9. What does the Supremacy Clause state?

10. What does Article IV guarantee?

11. List six [6] powers denied to the states by the Constitution.

1.                                                                     4.

2.                                                                     5.

3.                                                                     6.

12. What disagreements do you think might arise over the interpretation of the clause that said that Congress was given the power to make all laws that were necessary and proper  for fulfilling its responsibilities  as outlined in the Constitution?   Why?

13.  What three [3] states made it clear that they would not become part of the new nation if it interfered with slave trade?  _____________________________   _____________________________  _________________________

14. What compromises of differences between northern and southern states were written into the Constitution?    Would you have supported these compromises even though they accepted the institution of slavery?    Why?

TOPIC 15 QUESTIONS

1. Why did most state constitutions provide for weak executive branches?

2.  Explain four [4]  ways in which the Constitution requires the executive branch to share powers with the legislative branch?

1.

2.

3.

4.

3. Why was this (sharing power) done?

4.  What is the term of office of the president?     _________________

5. The Constitution originally set no limit upon the number of times a president could be reelected.  What amendment sets the limit at two terms?

____________________________________

6. What are the three basic powers of the executive branch?

A.

B.

C.

7.  Why is Article II shorter than Article I,  and somewhat vague?

8.  What does the electoral college tell us about the Framer’s opinion of the judgment and knowledge of the people?

9. How many electors does each state get?

10. Would a state without a large population prefer the electoral college system or a direct popular vote system where each person got one vote and the person with the most votes won?  Why?

11.  If no one received a ________________________________________________________________________

______________________________________________________________________________________
______________________________________________________________________________ vote.

12.  Why did the Framers want federal judges to be independent of political pressure?

13.  How did the they, the Framers, attempt to achieve this independence?

14. What was the judiciary given power to do?

15.  What types of cases was the Supreme Court given authority to handle?

a. original jurisdiction -

b. appellate jurisdiction -

16. What important matter was not was not decided by the Framers?

17. Define judicial review.

18.  What was the argument against judicial review?  What would be one for it?

TOPIC  16  QUESTIONS

1.  James Madison believed that each branch of government should be independent in their source of power.  How did the Framers  attempt to accomplish this?

2.  What did Roger Sherman, of Connecticut, say was necessary to preserve the good behavior of elected officials?

3.  What was the argument of those who disagreed with Sherman?

4.  Why are members of the House elected every two years, senators  every six years [1/3 at a time],  and the president every four years? [Hint - compromise]

5. Why do some historians refer to the Constitution as a  bundle of compromises ?

6. In what way is it, the Constitution, NOT a bundle of compromises?

7.  Describe Benjamin Franklin’s  attitude toward the Constitution.  What reasons did he give for it?

8. Explain each of George Mason’s objections to the Constitution. (They will all be on the exam.)

What was the biggest, most notable, of Mason’s criticisms?

9. Select one of George Mason’s objections and  identify  and describe an event in American history or a contemporary event that supports the objection.

10. Select one of Mason’s objections and explain what remedies our constitutional government provides for the type of problem he identified.  Then, take and defend a position on whether or not the remedy is adequate.

Questions for TOPIC 17

1.  Identify the following:

a. Federalists -

b. Anti-Federalists -

c. ratifying conventions -

d.  The Federalist -

2.  The Federalists believed that their plan was another example of the use of the idea of a social contract.  Why did they feel this way?

3. Why did some Federalists argue that the Articles of Confederation were not valid?

4.  How many states were needed to ratify the new Constitution?

5.  Why was  The Federalist written?  Who wrote the articles

6.  Why didn’t the Federalists want the Constitution submitted to the existing Congress or state governments for ratification?

7.  Why did the Federalists believe that the civic virtue of the people, alone, could not be relied upon to protect basic rights?

8.  The Federalists argued that the rights and ______________________________________________________

____________________________________________________________________________________________

_________________________________________________________________________________ Constitution.

9.  How, according to the Federalists, would the large size and diversity of the nation be beneficial?

10. The Constitution’s strength ___________________________________________________________________

_____________________________________________________________________________________________

_________________________________________________________________________________ people.

11. Who would represent the following?

local interests -

state interests -

national interests -

fundamental interests -

12.  Although the new national government had much more power than the old  national  government,  the Federalists believed that because the government was limited to ___________________________

powers, and because of the ______________________ system and _________________________

_______________________ the government would not be able to exceed the limitations placed upon it.

TOPIC  18 REVIEW  QUESTIONS

1.  Why did the Anti-Federalists believe that the Constitution would not be able to maintain a system of republican government?

2.  List specific objections to the Constitution that the Anti-Federalists made.

a.____________________________________________________________________________________

b.____________________________________________________________________________________

c.____________________________________________________________________________________

d.____________________________________________________________________________________

e.____________________________________________________________________________________

f.____________________________________________________________________________________

g.____________________________________________________________________________________

3. The Anti-Federalists believed that the only safe government was one that was:

A.____________________________________________________________________________________

B.____________________________________________________________________________________

4. What three arguments did  the Federalists use to respond to the Anti-Federalists?

1.____________________________________________________________________________________

2.____________________________________________________________________________________

3.____________________________________________________________________________________

5.  What does the following quotation tell you about a major fear of the Anti-Federalists?

We ought to consider the depravity of human nature, the predominant thirst for power which is in the breast of everyone, the temptation rulers may have,  and the unlimited confidence placed in them by this system.

[A participant in the North Carolina debates over the ratification of the Constitution].

6.  The Anti-Federalists lost their battle to prevent the adoption of the Constitution.   However,  they  left  a permanent impact on the Constitution.  How?

7.  Which level of government did the bill of rights originally apply  to?

a.  federal          b. state             c. both

8.  Would you have voted to ratify the Constitution as written in 1787?    YES  /  NO             Why?

Constitution Review / Summary.

Using your text (or any copy of the Constitution), answer the following

1. What branch does Article One cover?                       _____________________________

2. What branch does Article Two cover?                       _____________________________

3. What branch does Article Three cover?                    _____________________________

4. What does Article Four deal with?

Does Article Four contain the Guarantee Clause?        Yes / No

Does Article Four contain the Supremacy Clause?       Yes / No

5. What does Article Five deal  with?

6. What does Article Six cover?

Does it include the Necessary and Proper Clause?      Yes / No

Does it include the Supremacy Clause?                                   Yes / No

7. What does Article Seven (VII) deal with?

Summarize each Amendment.

1.                                                                                 15.

2.                                                                                 16.

3.                                                                                 17.

4.                                                                                 18.

5.                                                                                 19.

6.                                                                                 20.

7.                                                                                 21.

8.                                                                                 22.

9.                                                                                 23.

10.                                                                               24.

11.                                                                               25.

12.                                                                               26.

13.                                                                               27.

14.

Questions for Federalist #10

American Govt.

1. According to Madison, what was the problem with American governments   (he was referring to the Articles of Confederation and a number of state governments)?

2. What was Madison’s definition of a faction?

3. What are the two methods of curing the mischiefs of faction?

4. What are the two methods of removing the causes of faction?

5. Madison said, “the first remedy…was worse than the disease.”  What did he mean by that statement?

6. What was wrong with the second method?

7. How are faction’s origins rooted in human nature?

8. Why does Madison feel that no person or party should  judge his or their own cause?

9. The inference to which we are brought is that __________________________

_________________________________________________________________________________________________ controlling its _______________ .

10. How does the republican principle supply relief against a minority faction?

11. According to Madison, what is the most dangerous form of faction?

12. What, according to Madison, was a pure democracy?

13. Why couldn’t a pure democracy contain faction?

14. How was a republic different from a  pure democracy?

15. Madison said that a republic would  “refine and enlarge the public views by passing them through the medium of a chosen body of citizens [representatives], whose wisdom may best discern the true interest of their country…”  What did he mean by this?

16. What did Madison mean when he said it was important to raise the number of representatives “to a certain number in order to guard against the cabals of a few”? In other words, what would happen if there were too few representatives?

17. What would happen, according to Madison, if there were too many representatives?

18. What did Madison mean when he said, “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”?

Questions on Anti-Federalist Writings

From: Introduction

1. What did the Anti-Federalists see in the fibers of the Constitution, and what would not be sufficient to guard against this tendency?

2. What would gobble up the states?  What would be destroyed?

3. What two clauses did the Anti-Federalists have a great deal  of difficulty with? Why?

What is the main idea of the October 9, 1787 article?

What is the main idea of the October 18, 1787 article?

From: November 1, 1787

1. What did the writer mean when he said that … “ Those who have governed, have been found in all ages to enlarge their powers and abridge the public liberty”?

2. What does the writer say is missing from the proposed constitution?

________________________________________________________________

November 15, 1787

1. How does the writer feel about slavery? Is he for it , or against it?

2. What does the writer say should be counted for representation, if slaves were to be both viewed as property yet counted for representation?

3. What does the writer mean when he says things like: “They are the sign — the people are the thing signified…. sixty-five men cannot be found in the United States, who hold the sentiments, possess the feelings, or are acquainted with the wants and interests of this vast country”?

________________________________________________________________

February 28, 1788

1. What branch of government is the author addressing in this excerpt?

2. Read the 5th Amendment and then explain how it addresses the author’s concerns.

Review Questions Unit #4

Topic #19

1. In what year, and where, did the First Congress meet?

2. What were the first four major tasks?

a.

b.

c.

d.

3. Who was our first president, and vice-president?

4. What did the 12th Amendment do?

5. What did Washington urge the First Congress to do?

6. How did Madison and Sherman differ on their approach to drafting a bill of rights?

Madison -

Sherman -

7. December 15, 1791 -

8. What do the first eight amendments have in common?

9. Ninth Amendment -

10. Tenth Amendment -

11. Madison had also suggested __________________________         _____________________________________________

__________________________________________ federal government.

12. What did Congress do with this suggestion?

13. What court case made it clear that the Bill of Rights applied only to the federal government?

14. However, today most of the protections of the  ____________________             _____________________________________________________

___________________________________________ of the _____     Amendment.

15. Who was given the task of organizing a system of federal courts?

16. Describe the Judiciary Act of 1789 [include district and appellate courts].

17. Describe the role of the Supreme Court in the early years.

18. Why was a simple title given to the president?

19. Thoroughly describe how Congress organized the executive branch [include departments, secretaries, and attorney general].

20. Today there are _______ people _______________________________         ______________________________________________________

________________________________________________      first      government.

21. Put a “Y” by statement if it was an act taken by the first Congress and an “N” if it was not.

___    Proposed ten amendments to the Constitution.

___    Organized the federal court system.

___    Created the electoral college system of selecting presidents.

___    Established executive departments.

___    Legalized right of judicial review by federal courts.

___    Created the position of Attorney General.

Topic   # 20  and Early Elections

1. Who was the only real candidate for president in 1788-89?

2. What were two popular labels used for Washington?

a.                                                    b.

3. What were two popular labels used for Adams?

a.                                                    b.

4. What three states did not participate in the first election?

a.                                  b.                                  c.

5. Who was the first unofficial campaign manager?

6. What was the first capital?

7. What was Washington’s attitude towards being elected president?

8. Why did Adams feel insulted over the election results?

9. Why did Jefferson support Adams for vice president in 1792?

10. What was the nature of the little criticism Washington did receive in the 1792 election?

11. What did Anti-Federalists begin calling themselves?

12. What was the capital in 1792?

13. What were the credentials of John Adams?

14. What were the credentials of Jefferson?

15. Who did Washington publicly support to succeed him?

16. What negative names were thrown at Adams and Jefferson?

Adams -

Jefferson -

17. Why didn’t party leaders confirm to Jefferson that he was their candidate?

18. What trend did Washington begin by retiring?

19. What aspect of the French Revolution appalled the Federalists?

20. Why was John Jay ridiculed so much?

21. Describe the role Hamilton played in the 1796 election?

22.Why did both Adams and Jefferson avoid the appearance of campaigning?

23. Who was ridiculed as president by three votes?  _________________

24. Who was denounced as an atheist and infidel?    _________________

25. What did the Federalist Gazette of the United States headline to criticize Jefferson?

26. How did the Aurora refer to Adams?

27. List three firsts for the 1800 election.

a.

b.

c.

28. What phrase did Federalists secretly mock Adams with?

29. What law curtailed some Republican criticism of Adams?

30. What did Federalists question about Jefferson?

31. How many times did the House vote before finally electing Jefferson?

31. Who was Jefferson’s vice president? _____________________________

32. Why did Federalists call Jefferson  president by  no votes?

Topic 21  ‘Judicial Review’

1. Explain what  “judicial review” is.

2. Outline the facts of the Supreme Court case by which judicial review became an accepted principle of our system of government.

3. Explain the reasoning (thinking process) Chief Justice Marshall used to reach his decision.

4. One of the central principles of democratic government is that the will of the majority, expressed through its representatives, must prevail.  The practice of judicial review may contradict this principle.  How?

What arguments can you develop in support of judicial review? In other words, give an argument for judicial review. (Thinking about the role an umpire plays should help.)

Questions for Review Topic  #22

1. Give an example of an easy part of the Constitution to interpret.

2. Give an example of a difficult part of the Constitution to interpret.

3. In your own words, summarize the following methods of interpreting the Constitution:  

Literal meaning method -

What is the argument for?

What is the argument against?

Intentions of the Framers method -

What is the argument for?

What is the argument against?

Basic principles method -

What is the argument for?

What is the argument against?

4. Describe the ‘step approach’ that is usually used.

5. What are some of the important considerations that often influence justices?

6. Summarize Chief Justice Warren Burger’s statement concerning  interpreting the Constitution (in this case, an action of Congress).

7.  In the light of what you have learned about judicial review, which of the following positions of the Founders would you agree with? Explain the bases of your answers.

“It is…of great importance…to examine… the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country… They are independent of the people, of the legislature, and of every power under heaven.  Men placed in this situation will generally soon feel themselves independent of heaven itself…If the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature…”

[Letters of Brutus, 1787]

“…the judiciary, from the nature of its functions, will always be the least dangerous…It may truly be said to have neither Force nor Will, but merely judgment…A  constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them ascertain its meaning…”

[Alexander Hamilton, The Federalist, #78, 1788]

“…the opinion which gives to the judges the right to decide what laws are constitutional, and what not…would make the Judiciary a despotic branch.”

[Thomas Jefferson]

I agree with _____________________ because …

8.  Which of the following statements by former justices of the Supreme Court do you agree with? Explain your position.

“[The Constitution] is intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

[Chief Justice Marshall]

“We are under a Constitution, but the Constitution is what the judges say it is.”

[Chief Justice Charles Evans Hughes]

“As a member of this court I am not justified in writing my opinions into the Constitution, no matter how deeply I may cherish them.”

[Justice Felix Frankfurter]

“The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”

[Justice Oliver Wendell Holmes]

I agree with ______________________ because …

Topic 23   Review  Questions

1. What does sovereignty refer to?   What words in our constitution make this clear?

2. Describe a Unitary government. Give an example.

3. Describe a confederate government.  Give an example.

4. What do we mean when we say ours is a combination system?

5. In what ways is our federal system like a unitary system.

6. In what ways is our federal system like a confederate system.

7. The _______________________ clause clearly indicates that federal laws are to be considered ______________________ to any _______________  laws with which they may conflict.

8. What were the issues involved in McCulloch v. Maryland?   What was the result? (Explain)

The issues were …

The result was …

9. Who makes most modern decisions concerning federal and state power?

10.  Concerning our day to day lives, what laws affect us the most?

11. “The _________________________ by the _____________________

___________________________________________________________________ and ______________.”  — James Madison, Federalist No. 45

Unit Five Review Questions

Topic # 24:  Bill of Rights before the Civil War

1. Why was the Bill of Rights of such little importance before the Civil War?

2. Which of the basic rights of the natural rights philosophy are in conflict in the Dred Scott case?

3. Why do you suppose some of the Framers were more concerned with threats to individual  [natural] rights from the federal government than from their state governments?

4. What is the power of judicial review?

5. Why do you suppose Lincoln’s Emancipation Proclamation did not free slaves in states under federal control?

6. James Madison argued that a bill of rights was no more than a “parchment barrier” protecting rights that could easily be violated by government.  He claimed that the separation of powers, checks and balances, and the federal system were a better protection of rights.  Taking into account what you have learned, do you agree? Explain your position.

7. Why was the Sedition Act of 1798 passed?

8. How many Republican printers and writers were arrested, how many indicted and convicted, because of the Sedition Act of 1798?

9. What stopped the attacks under the Sedition Act?

10.  Summarize the facts, issues, and conclusions of Barron v. Baltimore [1833].

11. The decision in  Barron v. Baltimore _____________________________________________

________________________________________________________________________

_____________________________________________________________ those rights.

12. What amendment protects your right to fair compensation if the government takes your land for the public good? ___________________________  Give an example of where this did not happen?

13. In what famous case did the U.S. Supreme Court refuse to protect freedom for African Americans (some historians believe this court decision was one of the principal causes of the Civil War)?

14. Did the courts or legislature end segregation in public schools in Massachusetts?

15. Although it is clear from many of Lincoln’s speeches that he believed all African Americans should enjoy the natural rights declared in the Declaration of Independence,  what did President Lincoln say that revealed his main goal was to preserve the Union?

16. What did Lincoln do  that proved he was true to his word?

17. What did Frederick Douglas mean when he said,  “Though they were not slaves they were not yet quite free…. The law on the side of freedom is of great advantage only where there is power to make that law respected…”?    [Madison warned about this when he said that rights on paper might merely be “parchment  (paper) barriers.”]

IDENTIFY THE FOLLOWING

Jefferson Davis -

Sedition Act -

Emancipation Proclamation -

Marbury  v.  Madison -

Federalists -

Republicans -

American Colonization Society -

Society of Friends -

Topic #25 Amendments added to strengthen the Bill of Rights (Civil War Amendments)

1. Which political party, in 1854, supported slavery?  Which opposed it?

2. Reconstruction -

3. 13th Amendment -

4. 14th Amendment -

5. 15th Amendment -

6. The first post war session of Congress was held in ___________________________________

_____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ as a tool for protecting their rights.

7. What accustomed Southerners into seeing blacks as inferior?

8. After the _____________________, the federal government had kept____________________

_____________________________________________________________________________

___________________________________________ slaves.

9. Southern legislatures passed laws called ‘black codes’ in an____________________________

__________________________________________________________________________________________________ fairly.

10. How did black codes severely limit the rights of the newly freed slaves?

11. What happened when Union troops withdrew from the South?

12. Why did Congress pass the Civil Rights Act of 1866?  How effective was it?

13. Why was the 14th Amendment drafted?

14. Explain the following sections of the 14th Amendment:

Defining citizenship -

Rights of citizens -

Due process of law -

Equal protection of the law -

15. Two clauses of the 14th Amendment have been ____________________________________

________________________________________________________________________________________________________________________________________________________________________________________ local governments.

16. Describe the ratification of the 14th Amendment.

17. Why was the 15th Amendment adopted?  What did it clearly intend to do?

18. Poll taxes -

Literacy tests -

Grandfather clauses -

19.  How well did the Civil War Amendments protect the rights of African Americans?

20.  Why was the Civil Rights Act of 1875 declared unconstitutional?  What was the vote count?

21. Describe the presidency of R. Hayes.

22. Why might many people consider Hayes a traitor?

23. Especially ministers (________________), but also _________________________________

_________________________________________________________________________________________________________________________________________________________________________________________________________________________ years.

24.  …despite their limited effectiveness, the __________________________ Amendments (________________) had ________________________________________________________

___________________________________________________________________________________________________________________________ Americans.

25. Why do you suppose that women were not given the right to vote in the Civil War Amendments?

Lesson #26 Equal Protection Clause

1.  What solidified the idea of equality in the Constitution? _______________________________

2. What are the differences between the ideas of equality of condition and equal protection of the laws?

3. What consequences were the authors of the 14th Amendment prepared to accept as a result of their belief in the importance of equal protection of the law?

4.  The equal protection clause is intended to _________________________________________

___________________________________________________________________________________________________

5.  How did the separate but equal doctrine affect the rights of African Americans? What case was involved?

6.  What was the significance of the decision in  Brown v. Board of Education  for the extension of equal protection of the laws?

7.  List the three basic types of Affirmative Action.  Which is the most controversial?

8.  What conditions are presently used to deal with affirmative action programs?

9.  Identify  the following:

Univ. of Calif.. v. Bakke -

Justice Lewis F. Powell -

Homer Plessy -

Justice John Marshall Harlan -

19th Amendment -

1924 Citizenship Act -

President Truman -

Thurgood Marshall -

Linda Brown -

Chief Justice Earl Warren -

Pres. Eisenhower -

Topic #27   Due Process of Law: the 14th Amendment

1. The Bill of Rights originally applied to what level of the government? _____________________

2. “Incorporation” makes the Bill of Rights apply to the ____________ governments as well as the federal government.

3. In a general sense, what does “due process” mean?

4. What is the difference between substantive due process and procedural due process?

5. From the 1880s to the 1930s, the Supreme Court focused on protecting     property  /  liberty.       (Circle the correct answer.)

6. What was the phrase given to the policy of leaving the economy alone?__________________

7. Give two examples of the Supreme Court protecting property rights.

a.

b.

8.  What do critics mean when they say that the Supreme Court sometimes acts  like a  “super legislature?”

9.  How did the way the Supreme Court interpreted the “due process”  clause change during the 1930s?

10. What amendment says that we have other rights that are not, necessarily,  listed in the Bill of Rights?

11. What  amendment did  Justice William Douglas say protected the right to travel?

12. What “procedural  rights”  are protected by the  4th Amendment?

13. What is the “notice clause?”  What is its main purpose?

14. What amendment guarantees you the right to a lawyer?

15. What amendment says that you do not have to testify against yourself?

16. What is the writ of habeas corpus?  Where is it contained? When is it suspended? Why is it important?

17.  What amendment guarantees you the right to reasonable bail?  Why is this right important?

18. Why is the right to a speedy and public trial important?  What amendment protects this right?

19. Where is your right to an impartial jury protected? Why is this important?

20. What amendment guarantees you the right to be confronted with the witnesses against you, and to compel witnesses in your favor to testify on your behalf?

21. What amendment protects you from being executed for stealing a loaf of bread?

22. Where is the protection against “double jeopardy”  located?  Why is this protection important?

Topic #28 Establishment Clause

1. What ended the domination of Europe by the Roman Catholic Church?  What was the negative result?

2.  Why was Mary I  known as  Bloody  Mary?

3. What happened on St. Bartholomew’s Day, 1572?

4. Define “established church”.

5. Why is it not surprising that in most of the early colonies, there was little tolerance for religious differences?

6. Why did the Puritans settle Massachusetts?

7. What do Thomas Hooker,  Anne Hutchinson, and Roger Williams all have in common?

8. Who said “forced worship is false worship?”

9. What did James Madison mean when he said that the diversity “which pervades America is the best and only  security for religion?”

10. What was the Great Awakening?  What did it do concerning religious freedom?

11. What did Washington argue in the section of his farewell address reprinted in your notes?

12.  Who wanted to keep clergy  (Ministers, Priests, or  Rabbis)  from holding political office?

13.  What did Madison argue tended to happen throughout history concerning the relationship between government and religion?   What did he say was the best way to deal with these situations?

14.  What are the two fundamental reasons why Americans have argued for the separation of church and state?

15. What did Article VI  do for the first time in history?

16. What are the 3 main points of the Lemon Test?       Know the Lemon Test!

a.

b.

c.

17. Summarize the following:

Broad  Interpretation -

Narrow  Interpretation -

Literal  Interpretation -

18. On what issue would people of the broad interpretation perspective and narrow interpretation perspective agree?

19. What is the meaning of the following statement written by Justice William O. Douglas in 1952?                  “We are a religious people whose institutions presuppose a Supreme Being… We cannot read into the Bill of Rights…a philosophy of hostility to religion.”

Topic #29 Free Exercise Clause

1. What are the two parts to the idea of freedom of religion?

2. …the Supreme Court has held that although an _____________________________________

______________________________________________________________________

_________________________________________________________________ child.

3.  When may religious practices be limited by the government?

Give two examples.

4. What did the Supreme Court decide in Reynolds v. United States (1879)?

5. What did the Supreme Court decide in Wisconsin v. Yoder (1972)?

6. Give three (3) examples where religious liberty and the establishment clause conflict.

a.

b.

c.

7. With the  expansion of  pluralism and secularism what central  issue  needs to be addressed?

8. What is the fastest growing community of moral conviction  in America today?

Referring back to Topic # 28 and the “Lemon Test”  determine whether or not  a specific practice violates the First Amendment. In other words,  decide the following situations as if you were the Supreme Court utilizing the Lemon Test. In each case state why you decided the way you did.

1. In 1947,  a  New Jersey school system gave bus fare to families of children riding public transportation to parochial schools.   A  taxpayer  challenged the practice as a violation of the establishment clause of the First Amendment.   How  should  the Supreme  Court  rule?

Constitutional / Not Constitutional         Why?

[Everson v. Board of Educ. of Ewing -  Court held that reimbursements aided parents and children, not church affiliated schools]

2. Maryland’s constitution has a provision requiring a person to declare his or her belief in the existence of God as a prerequisite for holding public office.  A potential officeholder complained in court that  this requirement violated his freedom of religion.

Constitutional / Not Constitutional         Why?

[Torcaso v. Watkins (1961) - Court held provision unconstitutional]

3. The New York Regents wrote a nondenominational school prayer for use in classrooms:  “Almighty God, we acknowledge our dependence upon Thee and beg Thy blessings upon us, our teachers, and our country.”  Prayers were not required in New York classrooms, but this was the only one allowed.  Parents of some  students affected sued the New York State school system for violating their  freedom of  religion.

Constitutional / Not Constitutional         Why?

[Engle v. Vitale (1962) - Court held the prayer as unconstitutional]

4. A citizen challenged the use of tax funds to pay a chaplain to open sessions of the state legislature.  He argued in court that this practice clearly violated the establishment clause.

Constitutional / Not Constitutional         Why?

[Marsh v. Chambers 919810 - Court upheld the use of tax funds for a chaplain ... “simply a tolerable acknowledgement of beliefs widely held among the people of this country.”]

5.  A citizen challenged the state of Alabama’s  law which allowed one minute of silence for meditation or voluntary prayer as a practice that violated  the establishment clause.

Constitutional / Not Constitutional         Why?

[Wallace v. Jaffree (1985) - Court declared it unconstitutional because it contained a reference to “voluntary prayer”]

Topic # 30 Protecting Freedom of Expression

1. The First Amendment says that __________________________________________________

_______________________________________________________________________

___________________________________ of grievances.

2. Why was the First Amendment written?

3. It is _________________ for many people _________________________________ of others    with they  may   ___________________________________.

4. What are the important benefits of freedom of expression to both the individual and society?

A.

B.

C.

D.

E.

5. If there were no restrictions at all on free speech, what are some of the problems that would result?

6. How might limiting a person’s free speech actually increase someone else’s ability to speak and be heard?

7. Although you have a right to give a speech criticizing the government,  ___________________

_______________________________________________________________________

_______________________________________________________________________

__________________________________________________  in the middle of the night.

8. What are  time,  place,  and  manner  restrictions ?

9. What happened to  John Peter Zenger?   Why is his case important?

10.  Until the end of the __________________________________________________________

____________________________________ capacity.

11. What happened to Elbridge Gerry and George Mason’s suggestion?

12. What indicates that free speech was considered in a more limited scope in the eighteenth century?

13. Why did the Republicans win in 1800?

14. When has free speech been suppressed?

15. List four types of speech.

a.                                                                     b.

c.                                                                     d.

16. What is meant by  clear  and present danger?

17. What is meant by  Libel?

18.Under what conditions has the Supreme Court limited free speech?  Why?

Topic # 31   Freedom of Assembly, Petition, and Association.

1. The protection of the _________________________________  and  ____________________

provided in the ______________________________ demonstrates that _____________

_______________________________________________________________________

_________________ activism.

2. Of all the First Amendment freedoms, only  the rights of assembly and petition can be traced back to the Magna Carta.  Why do you think these rights are so much older than those of speech, press, or religion?

3. Why did the Founders think the rights of assembly and petition were so important they should be included in the First Amendment?

4. How did the Colonists respond to royal governors shutting down colonial assemblies?

5. Why did Congress pass a “gag rule” in 1836?

6. What role did former president John Quincy Adams play in over turning the gag rule?

7. What happened in 1894?

8. What was the “Bonus Army,” and what happened to it?

9. Describe the role Martin Luther King played concerning the right to assemble.

10. What  limits has the Supreme Court placed on freedom of assembly?

11.  Why  is the right of assembly important to groups that lack other means of access to the public?

12. Should the right of association be interpreted to mean that organizations cannot impose any limits on their membership?  Explain your position.

13. What were the facts of the Mergens v. Board of Education case?

How did the Supreme Court decide?  What was their reasoning?

Identify:

redress of grievances -

Alexis de Tocqueville -

lobby -

public forum -

NAACP v. Alabama (1958) -

Barenblatt v. U.S. (1959) -

It ain’t how much you make, it’s how you make what you do make.     Carol Wimber

There are 3 different kinds of people in this world: the wills, the won’ts and the can’ts.

… The wills accomplish everything.

… The won’ts oppose everything.

… And the can’ts fail in everything.

I’m too Blessed to be Stressed and too Anointed to be Disappointed!

What comes out of the mouth is in the heart!

A well trained memory is one that lets you forget everything that isn’t worth remembering.

Religion is man’s idea of God’s expectations.

We can’t change the past, but we can ruin the present by worrying over the future.

If you’re going through hell…Keep Going!

Give the devil an inch and he’ll be a ruler.

Manhood begins by submitting to the purposes of God.

Read the bible…It will scare the hell out of you!

WARNING: exposure to the Son may prevent burning!

We don’t change God’s message… His message changes us!

If we fill our hearts with regrets of yesterday and the worries of tomorrow, we will have no today to be thankful for.

Exercise Daily…walk with the Lord.

God doesn’t call the qualified. He qualifys the called.

Love. . . Is strengthened by working through conflicts together.

The best thing parents can do for their children… is to love each other!

Plan ahead! It wasn’t raining when Noah built the ark.

He who kneels before God can stand before anyone.

We take for granted the very things that we should be giving thanks for.

Love… It’s the only thing that can be divided without being diminished.

Happiness is enhanced by others, but should not depend upon others.

For every minute we are angry with someone, we lose 60 seconds of happiness that we can never get back.

All too few children can say  - ”There’s No Place Like Home.”

We should always do; whatever we can, for everyone we can, with whatever we have, no matter where we are!

Compassion is the heart of knowing what to overlook.

The true test of our faith is our behavior.

We should live as though; Christ died yesterday, Rose from the grave today, and is Coming back tomorrow!

Serve The Lord. Seek The Lord. Love The Lord. Fear The Lord.

Our attitude is not what someone has done to us, but how we react to what they’ve done to us.

If we create a taste for God in our children, when they are old, nothing else will satisfy them!

Some people are like waterless clouds… promising rain but never coming through.

Lazyness or an idle heart is the devil’s workshop.

Remember, even the devil quotes scripture.

Be ye fishers of men… you catch them and He’ll clean them!

The whole Message of Christ is to love one another, be kind, and to speak the truth.

And on that day, death and hell will be cast down into the Lake of Fire and will be no more!

Always remember to forget the troubles that pass your way; But never forget the blessings that come each day.

And let us run with endurance the race that God has set before us. Hebrews 12:11.

The one thing we can give and still keep is our word.

Love God with all your heart so you will have the persistence to walk in faith during the trials that are sure to come.

Temptation exercises our faith and teaches us to pray.

The manner that we dish out forgiveness to others, it will be dished back to us in exactly the same way by God.

Satan and his demons also believe there is only one true God, but . . . they don’t believe IN Him or trust IN Him.     James 2:19

Either the bible will keep us from sin, or sin will keep us from the bible.

Love is the greatest force on earth and a prescription for a good life.

One of our greatest problems is that we ask God for answers and guidance and then we debate Him over His response.

If the love of God is in our hearts, we will show it in our lives. The bible says that “by this shall all men know us.”       John 13:35

Faith in God, resulting in good works, will result in a balanced christian life, as they are essentially inseparable (like heat and a flame).

Salvation is not a result of our good works; good works, however, are a result of our salvation. Therefore, works is not grounds for salvation, but evidence of it.

Repenting will change the way you think and make you change your ways. Therefore, it cannot be just a changing of the mind alone. To repent means to feel sorrow, turn around, and follow Jesus.

What comes into our minds when we think about God is the most important thing about us!

Doctrine is constant, but interpretation changes with understanding.

Only By Grace, Only Through Faith, Only From Scripture.

Faith is being sure of what we hope for, and certain of what we do not see.

Spiritual Maturity means looking to God for purpose and perspective, not for comfort and convenience.

When we are not in the mood to worship God, but we do it anyway, that is a sacrifice of Praise!

And see not what you shall eat, or what you shall drink; neither be you of a doubtful mind… Your Father knoweth you have need of these things. But rather seek ye first the Kingdom of God; and all these things shall be added unto you.             Luke 12:15-31

True love cannot be found where it does not truly exist. Nor can it be hidden where it truly does.

There is no respect of persons with God; For He shows no partiality.        Romans 2:11

Bad company corrupts good character.      1 Corinthians 15:33

Money can’t buy love because Love is Priceless.

You cannot put a price on love because it’s Not For Sale.

Jesus said, “I and my Father are one.”        John 10:30

We should always be seeking to know what the bible says. We should ask ourselves, “Is what I heard consistent with the Word of God?” We are to test everything with God’s word.        2 Timothy 3:16-17.

We are to set our hearts on things above, not on earthly things.    Colossians 3:1-2

Sorrowfull, but always rejoicing;   Poor, yet making many rich;   Having nothing, and yet possessing everything.         2 Corinthians 6:10