The Law of Nature
"Man ... must necessarily be subject to the laws of his Creator.. This will of his Maker is called the law of nature.... This law of nature...is of course superior to any other.... No human laws are of any validity, if contrary to this: and such of them as are valid derive all their force...from this original." - Sir William Blackstone (Eminent English Jurist)
The Founders DID NOT establish the Constitution for the purpose of granting rights. Rather, they established this government of laws (not a government of men) in order to secure each person's Creator endowed rights to life, liberty, and property. Only in America, did a nation's founders recognize that rights, though endowed by the Creator as unalienable prerogatives, would not be sustained in society unless they were protected under a code of law which was itself in harmony with a higher law. They called it "natural law," or "Nature's law." Such law is the ultimate source and established limit for all of man's laws and is intended to protect each of these natural rights for all of mankind. The Declaration of Independence of 1776 established the premise that in America a people might assume the station "to which the laws of Nature and Nature's God entitle them.." Herein lay the security for men's individual rights - an immutable code of law, sanctioned by the Creator of man's rights, and designed to promote, preserve, and protect him and his fellows in the enjoyment of their rights. They believed that such natural law, revealed to man through his reason, was capable of being understood by both the plowman and the professor. Sir William Blackstone, whose writings trained American's lawyers for its first century, capsulized such reasoning:
"For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the...direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws."
What are those natural laws? Blackstone continued:
"Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due.."
The Founders saw these as moral duties between individuals. Thomas Jefferson wrote:
"Man has been subjected by his Creator to the moral law, of which his feelings, or conscience as it is sometimes called, are the evidence with which his Creator has furnished him .... The moral duties which exist between individual and individual in a state of nature, accompany them into a state of society. their Maker not having released them from those duties on their forming themselves into a nation."
Americas leaders of 1787 had studied Cicero, Polybius, Coke, Locke, Montesquieu, and Blackstone, among others, as well as the history of the rise and fall of governments, and they recognized these underlying principles of law as those of the Decalogue, the Golden Rule, and the deepest thought of the ages. An example of the harmony of natural law and natural rights is Blackstone's "that we should live honestly" - otherwise known as "thou shalt not steal" - whose corresponding natural right is that of individual freedom to acquire and own, through honest initiative, private property. In the Founders' view, this law and this right were unalterable and of a higher order than any written law of man. Thus, the Constitution confirmed the law and secured the right and bound both individuals and their representatives in government to a moral code which did not permit either to take the earnings of another without his consent. Under this code, individuals could not band together and do, through government's coercive power, that which was not lawful between individuals.
America's Constitution is the culmination of the best reasoning of men of all time and is based on the most profound and beneficial values mankind has been able to fathom. It is, as William E. Gladstone observed, "The Most Wonderful Work Ever Struck Off At A Given Time By the Brain And Purpose Of Man."
We should dedicate ourselves to rediscovering and preserving an understanding of our Constitution's basis in natural law for the protection of natural rights - principles which have provided American citizens with more protection for individual rights, while guaranteeing more freedom, than any people on earth.
"The end of law is not to abolish or restrain, but to preserve and enlarge freedom."-John Locke
The Soul Of America's Constitution
America's Founders knew that it takes more than a perfect plan of government to preserve liberty. Something else is needed - some moral principle diffused among the people to unite and strengthen the urge to peaceful observance of law. They recognized that the raw materials of a free government are people who can act morally without compulsion, who do not willfully violate the rights of others, and who love liberty enough to demand that government's power is very limited. They used the word "virtuous" to describe such people. Defined by Webster, "virtue" is "a conformity to a standard of right," but whatever word is used to describe it, such a moral standard is the necessary fountainhead of a free society. The Declaration of Independence referred to "Nature's God," the "Creator," the "Supreme judge of the World," and "Divine Providence" Our nation's founders came together, voluntarily, to create a limited government to secure for them and posterity their God-given rights to life, liberty, and property. Such liberty, they believed, rested on three great supports:
Natural law and unalienable natural rights granted by the Creator,
A written constitution to assure a government of laws, not of rulers, and
VIRTUE among the people - the best defense against tyranny.
Their own words are eloquent reminders of their devotion to this belief:
"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.... It is substantially true that virtue or morality is a necessary spring of popular government." - George Washington's Farewell Address
"We may look up to Armies for our defense, but virtue is our best security. It is not possible that any state should long remain free, where virtue is not supremely honored." - Samuel Adams
"Virtue must underlay all institutional arrangements if they are to be healthy and strong. The principles of democracy are as easily destroyed as human nature is corrupted!' - John Adams
And Alexis de Tocqueville, the French statesman who traveled across America in the 1830's and wrote a two-volume study entitled "Democracy In America," is widely quoted as observing:
"America is great because she is good, and if America ever ceases to be good, America will cease to be great."
The Unique Idea of the American Constitution
Our Constitution embodied a UNIQUE IDEA. Nothing like it had ever been done before. The power of the idea was in the recognition that people's rights are granted directly by the Creator - not by the state - and that the people, then, and only then, grant rights to government. The concept is so simple, yet so very fundamental and far-reaching.
America's founders embraced a previously unheard-of political philosophy which held that people are "...endowed BY THEIR CREATOR with certain unalienable rights.." This was the statement of guiding principle for the new nation, and, as such, had to be translated into a concrete charter for government. The Constitution of The United States of America became that charter. Other forms of government, past and present, rely on the state as the grantor of human rights. America's founders, however, believed that a government made up of imperfect people exercising power over other people should possess limited powers. Through their Constitution, they wished to "secure the blessings of liberty" for themselves and for posterity by limiting the powers of government. Through it, they delegated to government only those rights they wanted it to have, holding to themselves all powers not delegated by the Constitution. They even provided the means for controlling those powers they had granted to government. This was the unique American idea. Many problems we face today result from a departure from this basic concept. Gradually, other "ideas" have influenced legislation which has reversed the roles and given government greater and greater power over individuals. Early generations of Americans pledged their lives to the cause of individual freedom and limited government and warned, over and over again, that eternal vigilance would be required to preserve that freedom for posterity.
An Enlightened People
An enlightened PeoplePossessing a clear understanding of the failure of previous civilizations to achieve and sustain freedom for individuals, our forefathers discovered some timeless truths about human nature, the struggle for individual liberty, the human tendency toward abuse of power, and the means for curbing that tendency through Constitutional self-government. Jefferson's Bill For The More General Diffusion Of Knowledge For Virginia declared:
"...experience hath shewn, that even under the best forms (of government), those entrusted with power have, in time, and by slow operations, perverted it into tyranny; and it is believed that the most effectual means of preventing this would be, to illuminate...the minds of the people...to give them knowledge of those facts, which history exhibiteth. History, by apprizing them of the past, will enable them to judge of the future...it will qualify them judges of the actions and designs of men; it will enable them to know ambition under every disguise it may assume; and knowing it, to defeat its views.."
Education was not perceived by the Founders to be a mere process for teaching basic skills. It was much, much more. Education included the very process by which the people of America would understand and be able to preserve their liberty and secure their Creator-endowed rights. Understanding the nature and origin of their rights and the means of preserving them, the people would be capable of self government, for they would recognize any threats to liberty and "nip the shoots of arbitrary power in the bud." (Adams)
The Responsibility Of Citizens
"Cherish, therefore, the spirit of our people, and keep alive their attention. If once they become inattentive to the public affairs, you and I, and Congress and Assemblies, judges and governors, shall all become wolves. It seems to be the law of our general nature."
- Thomas Jefferson (Letter to Edward Carrington January 16, 1787)
Background And Original Intent
"A good constitution is the greatest blessing which a society can enjoy." So said James Wilson, in his oration at Philadelphia on July 4, 1788, celebrating the adoption of the Constitution of the United States. Wilson, who signed both the Declaration of Independence and the Constitution, preached startlingly democratic theories - more democratic than the ideas of any other delegate to the Constitutional Convention. Yet Wilson emphasized the duties, as well as the rights, of citizens:
"Need I infer, that it is the duty of every citizen to use his best and most unremitting endeavours for preserving it [the Constitution] pure, healthful, and vigorous? For the accomplishment of this great purpose, the exertions of no one citizen are unimportant. Let no one, therefore harbour, for a moment, the mean idea, that he is and can be of no value to his country: let the contrary manly impression animate his soul. Every one can, at many times, perform, to the state, useful services; and he, who steadily pursues the road of patriotism, has the most inviting prospect of being able, at some times, to perform eminent ones."
Wilson's argument is quite as sound now as it was two centuries ago. The success of the American Republic as a political structure has been the consequence, in a very large part, of the voluntary participation of citizens in public affairs - enlisting in the army in time of war; serving on school boards; taking part unpaid in political campaigns; petitioning legislatures; supporting the President in an hour of crisis; and in a hundred other great ways, or small-assuming responsibility for the common good. The Constitution has functioned well, most of the time, because conscientious men and women have given it flesh.
The Premises of Americans' Responsibility Under the Constitution of 1787
The Framers' first assumption was that all just authority for government comes from the people, under God; not from a monarch or a governing class, but from the innumerable citizens who make up the public. The people delegate to government only so much power as they think it prudent for government to exercise. Government is the people's creation, not their master. Thus, if the people are sovereign, it is the citizens' responsibility to take upon their shoulders the task of seeing that order, justice, and freedom are maintained.
The Framers' second assumption was that American citizens would undertake responsibility for the ordinary functioning of the civil social order and that local communities would manage their own affairs. Under their system, the roles of the various levels of government would be minimal and would not unnecessarily intrude into the day-to-day lives of the citizens.
In the matters which most immediately affect private life, power should remain in the hands of the citizens, or of the several states - not in the possession of federal government. So, at least, the Constitution declares. Americans have no official cards of identity, or internal passports, or system of national registration of all citizens - obligations imposed upon citizens in much of the rest of the world. This freedom results from Americans' voluntary assumption of responsibility. In matters of public concern, it was the original intent to keep authority as close to home as possible. The lesser courts, the police, the maintenance of roads and sanitation, the levying of real-property taxes, the control of public schools, and many other essential functions still are carried on by the agencies of local community: the township, the village, the city, the county, the voluntary association. Citizens' cooperation in voluntary community throughout the United States has been noted and commended in the books of Alexis de Tocqueville, Lord Bryce, Julian Marias, and other distinguished visitors to the United States, over the past two centuries:
America's citizens, most of them, have believed in a moral order ordained by divine wisdom; and so they have assumed moral responsibilities, including personal responsibility for constitutional government. The more thoughtful citizens have seen society as primarily moral in origin: a community of souls. Behind the outward forms of American political structure lie the old convictions that citizens have duties toward a Creator and toward other members of the society, and that a just government must recognize moral law.
In family, church, and school, until the middle of the twentieth century, the rising generation of Americans were taught that they must be personally responsible for their own welfare, for the care of their aging family members, for the security and prosperity of their community, for their patrimony of order and justice and freedom, A sense of responsibility is developed by severe lessons, by private risk and accountability, by a humane education, by religious understanding, by knowledge of the past. Once upon a time, this sense of responsibility was diffused throughout the American nation. If it drains away, the consequences will be dreary.
A republic whose citizens - whose leaders, indeed - are concerned chiefly with "looking out for Number One," and ignoring their responsibilities of citizenship, soon cannot "insure domestic tranquillity, provide for the common defense, promote the general welfare" - or carry on the other major duties of the state. When the crisis comes, the people may turn in desperation to the hero-administrator, the misty figure somewhere at the summit. But in the end, that hero-administrator will not save the republic, although he may govern for a time by force. A democratic republic cannot long endure unless a great many of its citizens stand ready and willing to brighten the corner where they are, and to sacrifice much for the nation, if need be.
Has The Consciousness of Responsibility Withered in America?
For the past five or six decades, several perceptive observers have remarked, an increasing proportion of the American population has ceased to feel responsible for the common defense, for productive work, for choosing able men and women to represent them in politics, for accepting personal responsibility for the needs of the community, or even for their own livelihood. Unless this deterioration is arrested, the responsible citizens will be too few to support and protect the irresponsible. By 1978 there were more people receiving regular government checks than there were workers in the private sector. What follows, if we are to judge by the history of fallen civilizations, is described by Albert Jay Nock in his book Memoirs of a Superfluous Man (1943):
"... closer centralization; a steadily growing bureaucracy; State power and faith in State power increasing; social power and faith in social power diminishing; the State absorbing a continually larger proportion of the national income; production languishing; the State in consequence taking over one 'essential industry' after another, managing them with ever-increasing corruption, inefficiency, and prodigality, and finally resorting to a system of forced labor. Then at some point in this process a collision of State interests, at least as general and as violent as that which occurred in 1914, will result in an industrial and financial dislocation too severe for the asthenic [weak] social structure to bear; and from this the State will be left to 'the rusty death of machinery' and the casual anonymous forces of dissolution."
Modern civilization offers a great variety of diversions, amusements, and enticements - some of them baneful. But modern civilization does not offer many inducements to the performance of duties, except perhaps monetary payment, and certainly it does not teach people that the real reward for responsible citizenship is the preservation of a free society. It is not money that can induce citizens to labor and sacrifice for the common good. They must be moved by patriotism and their attachment to the Constitution. And patriotism alone, ignorant boasting about ones native land, would not suffice to preserve the Republic. Thus it is that on the occasion of the Bicentennial celebrating of the Constitution, a mighty effort ought to be made to restore the American public's awareness of the principles of their government, of their responsibilities toward their country, their neighbors, their children, their parents, and themselves to be sure that their patriotism is based on this solid foundation. No one knows how late the hour is; but it is later than most people think. Love of the Republic shelters all our other loves; and that love is worth some sacrifice.
Responsibilities Are Readily Forgotten
Nearly all of us are quick to claim benefits, but not everybody is eager to fulfill obligations. We have become a nation obsessed with rights, forgetful of responsibilities. In an age of seeming affluence, a great many people find it easy to forget that all good things must be paid for by somebody or other - paid for through hard work, through painful abstinence, sometimes through bitter sacrifice. Below we set down some of the causes for the decline of a sense of responsibility among some American citizens.
The growth of an American welfare state, over the past half-century, has produced in the minds of a good many men and women the illusion that somehow somebody in Washington can provide for all needs: so why make much effort to fulfill what used to be considered personal responsibilities? As Alexis de Tocqueville remarked, a century and a half ago:
"Democracy in the United States will endure until those in power learn that they can perpetuate themselves through taxation."
In other words, the temptation of public men in Washington is always to offer to have the federal government assume fresh responsibilities - with consequent decay of local and private vigor (it might be argued that, at least in part, a failure in the proper exercise of citizens' responsibility permitted the development of the welfare state syndrome - that the government owes them a living. In any event, once it got under way and the welfare state grew, the sense of citizens' responsibility and rugged individualism deteriorated).
The increase of the scale of society and the size of government has bewildered many Americans, inclining them to think that the individual can accomplish little or nothing in a responsible way, engulfed as he seems to be by the overwhelmingness of it all. It was easier to see ones personal responsibilities in a Massachusetts township or next door to a Virginia courthouse, in 1787, than it is to perceive what one's duties to country and community may be in the New York or Los Angeles of 1987. When one contemplates the enormous size of the federal government, then the exercise of individual citizen responsibility seems almost hopeless.
Until the 1930s, and in many schools later than that, young people learned their responsibilities through the lively study of history, government, and especially imaginative literature that taught them about human dignity and human duties. But in recent decades, especially during the 1960s and 1970s, the disciplines of history and government have been supplanted by a vague social stew," and the study of great literature and philosophical ideas has given way to anthologies of relevant" - and often depressing - third-rate recent writing. So the function of the schools as places where responsibility would be taught - an expressed hope of several of the Framers of the Constitution, John Dickinson among them - has been ignored.
Of all social institutions, formerly the family was most active and successful in teaching young people their responsibilities. But since the Second World War particularly, the American family has been weakened by economic changes, both parents being gainfully employed (often to pay for increases of taxation, in large part), the triumph of the television set over family conversations, the influence of periodicals read by young people, and a considerable range of challenges to parental authority - many times encouraged by judicial decisions and actions of the education establishment. At the same time, the influence of school teachers and of the clergy in perpetuating this strong sense of responsibility has diminished. So, in some degree, the restoration of a sense of responsibility depends upon the family's recovery of authority.
The fundamental impulse to accept responsibilities and perform duties, in every society, has been religious in origin. Individuals obey moral laws and do their duty because of awareness of duties toward God. Religion teaches that there exist natural laws; and that if individuals try to ignore those natural laws, they find themselves in peril, individually and as a society. People who deny the reality of the Divine tend to shrug off their responsibilities to other men and women. Thus, weakness in religious awareness commonly leads to the decay of personal responsibility in many walks of life.
These are only some of the reasons why a 'permissive" society speaks often of rights and seldom of responsibilities. A time comes, in the course of events, when abruptly there is a most urgent need for men and women ready to fulfill high and exacting and dangerous responsibilities. And if there are no such citizens, then liberty can be lost. It must be remembered that the great strength of the Signers of the Declaration and the Framers of the Constitution was that they knew their classical history, and how the ancient Greek cities had lost their liberties, and how the Roman system had sunk to its ruin under the weight of proletariat and military state.
Prospects For The Renewal Of Responsibility
What may be done by way of remedy? Although America's social difficulties are formidable, probably they are less daunting than those of any other great nation today. The economic resources of the United States remain impressive; and the country's intellectual resources are large. This essay cannot offer, in its small compass, a detailed program for the popular recovery of devotion to duty. Here we can only suggest healing approaches:
Like moral virtue, responsibility is first acquired in family and home. Nobody does more to injure a sense of responsibility than a parent who abandons children to the television set and the peer group, "liberating" them from household chores and study at home. Assigning and enforcing duties within home and family, though it may seem stern at first, is kindness to everybody in the long run.
In the family, as well as in the school, the imagination and the intellect can be introduced to the literature of responsibility - for such does exist, and young people are much taken with this literature if they have not already been absorbed into a juvenile "counter-culture." It was not many years ago that boys read, for instance, Theodore Roosevelt's and Henry Cabot Lodge's Hero Tales from American History, with its stirring descriptions of George Washington; of George Rogers Clark conquering the Northwest; of the battles of Trenton, Bennington, King's Mountain, and Stony Point - to confine ourselves to Revolutionary fighting - of Gouverneur Morris, the most brilliant delegate to the Constitutional Convention, with his one leg and his crippled arm, refusing to flee from the Jacobins in Paris. In such true tales one learns what responsibility requires. And it was not many years ago that girls were reading about the heroines of ancient times and modern - about Hypatia, Joan of Arc, Abigail Adams. We learn our duties from learning about men and women who did theirs. One recalls James Wilson's words, quoted at the beginning of this essay: "He, who steadily pursues the road of patriotism, has the most inviting prospect of being able, at some times, to perform eminent ones."
In schools, the pupils need to be rescued from the sham subjects of "social studies" and "civics," ordinarily the most boring and empty disciplines in school curriculum, and introduced instead to real history and to the Constitution and American political institutions. From studying genuine historical figures and genuine politics and literature of the past, young people can come to apprehend what a citizen can do for his country.
Perhaps the best way to renew responsibility in American society is to assume responsibilities one's self. It may be difficult to find the time, and painful to fight one's way into politics at any level; nevertheless, some honest men and women must do so if the Republic is to endure another two centuries - or perhaps to the end of the twentieth century. From running for Congress to campaigning for the office of drain commissioner; from publishing a newspaper to writing a letter to the editor - there is no end to the responsibilities that may be undertaken, to the general benefit. The apparatus for doing one's political duty still exists, thanks to our Constitution.
To fulfill one's moral responsibilities through the agencies of a church, neighborhood, and personal charity may not be exciting; yet the example of duty does win converts, and one lays up treasure in a place unaffected by manipulated currency. To give aid and comfort to fugitives from Communist lands, say, is such an act as the Signers and the Framers would have approved heartily; and it teaches moral responsibility to one's children.
Ultimately, the recovery of a sense of responsibility is bound up with the recovery of the old concept and virtue of piety - gratitude toward God for his gift of life, gratitude toward one's ancestors, concern for one's children and descendants. Such a sense of responsibility is in keeping with the philosophy upon which the nation was built - Creator-endowed rights and responsibilities.
In your own circumstances, you may encounter opportunities for the renewal of responsibility more promising where you live than any suggested here. In any society, it always has been a minority who have upheld order and justice and freedom. If only one out of every ten citizens of the United States of America should vigorously fulfill his responsibilities to our civil social order - why, we would not need to fear for the future of this nation.
Consider
In all previous cultures, children ordinarily accepted responsibility for the well-being of their parents in old age; and in various societies, the children were so held accountable in law. Why has this form of responsibility decayed in the twentieth century? Can you think of political and social causes for the care of elderly parents being turned over to public agencies?
Can you name seven or eight voluntary associations or organizations, not subsidized or directed by government, that perform important services in your community or in America generally? Explore the benefits from this kind of involvement as opposed to "letting the government do it."
Responsible citizenship sometimes brings risks - all the way from unpopularity in some local dispute to pushing forward under enemy fire in military action. How may schools help to teach the rising generation the high importance of performing duties that may be dangerous?
Are you and I personally responsible for our decisions and actions, or are we simply creatures of our environment, "conditioned" to respond in one way or another to events and challenges? Marshal the arguments on either side of this question, and then consider the probable social consequences of believing in freedom of the will, or believing that society, rather than the individual person, is responsible for citizen's actions.
What are you doing to help preserve the great principles on which this nation and your personal freedoms are based?
Will The Great American Experiment Succeed?
Thomas Jefferson, in his First Inaugural Address, enumerated what he called ‘the essential principles of our government … which ought to shape its Administration.’ He then stated:
“These principles form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation. The wisdom of our sages and blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civil instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety.”
Background
When asked by a curious citizen after the adjournment of the Constitutional Convention what kind of government had been structured by the Founding Fathers, Benjamin Franklin is said to have answered: “…A REPUBLIC, IF YOU CAN KEEP IT.” The extensive Constitutional republic they envisioned, in reality, became a place of liberty and opportunity for countless millions of people from all over the world. Their ideas worked, because they were based on enduring principles which recognized human imperfection and the need to structure a limited government of laws, dependent upon the consent of a people who, themselves, understood the principles. The Distinctiveness of the American Experiment as Laid Down by the Founding Fathers:
It acknowledged that individual rights are derived from a Creator.
It was based on enduring principles compatible with “the laws of nature and of nature’s God.”
It recognized human imperfection and that a tendency to abuse power is ever present in the human heart.
It restrained those in power through a written Constitution which carefully divided, balanced, and separated the powers of government and then intricately knitted them back together again through a system of checks and balances.
It left all powers with the people, except those which, by their consent, the people delegated to government and then made provision for their withdrawing that power, if it was abused.
What Has Happened to the Philosophy and Principles Held by the Founding Fathers?
Have we kept faith with their ideas of republican (representative) government and of the virtue which must underlie such an institution? As Andrew Jackson observed: “It is well known that there have always been those amongst us who wish to enlarge the powers of the general government…and…to overstep the boundaries marked out for it by the Constitution.” Such is certainly true in 20th Century America! Not only do the various branches of government seek ways to expand their power by changing the Constitution, but there are well – organized and heavily-funded organizations actively at work to make serious changes in the Founders’ system. Can America Lose Her Freedom? An examination of the history of civilization reveals that nations have risen, and they have fallen. Governments have been formed, and they have been dissolved. People have become free, and they have fallen into slavery again. Toynbee observed that 19 of the world’s 21 significant civilizations disappeared from the face of the earth – not from assault by outside forces, but from deterioration within the society. Many would contend that America has departed from the intentions of its Founders in a number of significant ways. Others, whose judgments are less categorical, at least would acknowledge that there are valid reasons for such a judgment.
Some Major Departures From The Original Philosophy, Principles And Intent Of The Framers Of Our Constitution:
Increasing Centralization of Authority in the National Government
Through liberal judicial interpretations of the necessary and proper” and “general welfare” clauses, as well as the commerce clause, the national government has gained sufficient power to intrude into virtually all concerns and areas which were originally intended to be within the domain of the states (See: Part V, Federalism). What is more, the courts, through the process of ‘selective incorporation,’ have used the Fourteenth Amendment to nationalize and apply the Bill of Rights to the states. Various Amendments have also served to weaken the state governments, albeit indirectly. For instance: the Sixteenth Amendment, through its provision for federal income tax, has made the states, to a great extent, dependent on the national government. The Seventeenth Amendment, which changed the Framers’ intent as to the manner in which the Senate would he determined, has served to reduce the influence and balance of state interests in the national councils.
Erosion Of Principle Of Separation Of Powers
The Framers believed that it would be the Legislative branch, armed with the most important powers of government, which would pose the greatest danger to the separation of powers. For this reason, they divided the legislature into two houses and strengthened the Executive and judiciary branches. Over time, however, the Congress has delegated much of its authority to the Executive branch or to independent regulatory bodies. On the other hand, the judiciary, which the Founders believed to be the weakest of the branches, has asserted the doctrine of judicial supremacy-that its interpretation of the Constitution is authoritative and binding on the other branches (an idea clearly not held by Jefferson, Madison and others). In addition, the courts have in fact ‘legislated’ to bring about changes which they contend are mandated by their interpretation of the Constitution (See: Part V, Separation of Powers). These “positive resolutions” on the part of the courts are seen to run counter to the Founders’ idea of representative (republican) government, because they represent a usurpation of the legislative function, and ignore the voice and consent of the people through their elected representatives. This bypasses the slow and deliberative amendment process provided by the Constitution for making changes to that document.
Departure From The Basic Values To Which The Founders Subscribed
Although the word “rights” remains an important part of the political and social vocabulary, the perception that individual rights are of divine origin has been largely excluded from public discourse. What was once the very cornerstone of the philosophy of freedom expounded by the Declaration of Independence-that a Creator endowed human beings with rights and the liberty to enjoy those rights – has virtually disappeared from the textbooks of the nation and from the public statements of many leaders. Indeed, rights are now thought of as man-made and emanating from government. As such, the concept of rights not only has been secularized but trivialized as well. After all, what is the authority for such rights?
Any self-proclaimed entitlement to special treatment, privilege, status, or benefit conferred by government can, by inference, be withdrawn. Moreover, the modern notion of man-made rights does not embody the natural law injunction that the exercise of a right embodies a corresponding obligation to observe the rights of others, nor does it recognize the “laws of nature and of Nature’s God” described by the Declaration of Independence.
In this connection, the rights specified in the Bill of Rights frequently have been interpreted in an arbitrary manner without regard to the tradition or values which they were designed to protect and preserve. For instance, the First Amendment’s provision that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” has been ‘interpreted’ in a manner not in keeping with Jefferson’s idea that the “liberty to worship our Creator” had been “proved by our experience to be its [government’s] best support.” In this and other areas, rights are upheld quite apart from the Framers’ concerns for civil or ordered liberty, or for the ends of government, especially those set forth in the Preamble. Alexandr Solzhenitsyn’s scathing critique of Western moral values, and those which have gained currency in the United States in particular, drives this point home:
“Destructive and irresponsible freedom has been granted boundless space. Society appears to have little defense against the abyss of human decadence, such as, for example, misuse of liberty for moral violence against young people, motion pictures full of pornography, crime and horror.”
Professor Lino Graglia, a harsh critic of the Supreme Court and its interpretation of the Bill of Rights, makes much the same point in another context:
“The Court has created for criminal defendants rights that do not exist under any other system of law-for example, the possibility of almost endless appeals with all costs paid by the state and which have made the prosecution and conviction of criminals so complex and difficult as to make the attempt frequently seem not worthwhile…By undermining effective enforcement of the criminal law…the Court has diminished our liberty to walk the streets of our cities with a degree of security”.
Destruction Of The Founders’ Monetary System Based On A Money With Intrinsic Value
One of the primary concerns of the Founders was the establishment of a sound monetary system which would provide stability and would assure the citizens that government could not manipulate their currency and confiscate their earnings through inflation, a problem with all unbacked paper currencies of the past. By various legislative and judicial actions, United States citizens no longer possess a currency with its own intrinsic value. Unbridled government spending and debt plague the nation. Since the withdrawal of gold coins in 1933, the nation has experienced a cumulative inflation of over 821%.
Loss Of Citizen Understanding Of Constitutional Principles And The Philosophy Underlying Them
“Liberty cannot be preserved without a general knowledge among the people…” said John Adams. And Thomas Jefferson declared: “Whenever the people are well-informed they can be trusted with their own government…The boys of the rising generation are to be the men of the next, and the sole guardians of the principles we deliver over to them.”
Early generations of Americans were taught the principles upon which their nation had developed its Constitution. The Founders believed that the real security for liberty would be a people who could understand those ideas which are necessary to preserve liberty and who could perceive approaching threats to their freedom. For that reason, a primary purpose of the schools was to teach boys and girls to read and write so that they could study the ideas of freedom.
A popular textbook for children was entitled “Catechism on the Constitution.” Written by Arthur J. Stansbury and published in 1828, it contained questions and answers on the principles of the American political system. Tocqueville’s Democracy In America , written in the 1830’s, described America’s aggressive process of universal education on the Constitution and the political process:
“It cannot be doubted that in the United States the instruction of the people powerfully contributes to the support of the democratic republic; and such must always be the case, I believe, where the instruction which enlightens the understanding is not separated from the moral education ….” The American citizen, he said, “..will inform you what his rights are and by what means he exercises them .. In the United States, politics are the end and aim of education … every citizen receives the elementary notions of human knowledge; he is taught, moreover, the doctrines and the evidences of his religion, the history of his country, and the leading features of its Constitution …. it is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is a sort of phenomenon…. It is difficult to imagine the incredible rapidity with which thought circulates in the midst of these deserts [wilderness].
I do not think that so much intellectual activity exists in the most enlightened and populous districts of France.”
Research shows that, beginning in the early 1900’s, the teaching of the philosophy undergirding the Constitution and the principles incorporated in it began to be eliminated from the public schools of America. Consequently, several generations of Americans have not been taught the principles which would enable them to be guardians of their own liberty, and they have not been able to serve as “watchmen on the walls” who could recognize encroachments when they occurred.
Even most of the law schools do not train the nation’s law students in the philosophical foundations of the Constitution. It must be remembered that the principles of the Constitution and the philosophy undergirding those principles represent:
The ultimate standard of measure for all government action.
The ultimate protection for the people from the excesses of government.
If the people do not have an understanding of these basic things, then they will be incapable of preserving them.
Does The Constitution Provide The Means Of Recovering The Original Intent?
Without a doubt, those departures from the Framers’ intent listed above, and others as well, result in serious questions about the ultimate success of their experiment. We should note, however, that the Framers built well, and the Constitution, despite the buffeting it has taken, is still extremely viable in one crucial respect: namely, the channels for restoration remain open. Nothing – not even Amendments – has altered the distribution of powers or the basic institutional relationships set forth by the Founders.
This means, in effect, that the PEOPLE can operate through Congress to bring the system back into line. If the people, through knowledgeable, good judgment, select members of Congress who have the courage to act, the Founders’ system can be restored. A determined Congress, for instance, is more than a match for a judiciary bent upon advancing the doctrine of judicial supremacy and encroaching upon the Legislative prerogatives intended by the Founders. Such a Congress could, as it has done in the past, limit the appellate jurisdiction of the Court.
The Senate could carefully screen presidential nominations to the federal courts, particularly the Supreme Court, and refuse to con, firm those who support judicial “activism.” Or, at the extreme, Congress could impeach and remove those justices who, to use Alexander Hamilton’s terminology, habitually exercise “will” (the intended prerogative of the Legislature), not “judgment,” in interpreting the Constitution. In sum, Congress is equipped with all the weapons to win any “shoot out” with the Court. In all likelihood, if history serves as any guide, the mere threat of their use would suffice to restore the proper relationships between the branches called for by the separation of powers principle.
Congress also possesses ample means to restore some semblance of balance with respect to state-national relations. Much could be accomplished simply through legislation, or through a more discreet use of congressional powers to allow the states greater latitude. Congress could, probably through legislation (or amendment, if need be), assert the sole authority to enforce the “due process” and “equal protection’ clauses of the Fourteenth Amendment through appropriate legislation, thereby depriving the courts of the means to impose their will upon the states. This corrective measure would, by itself, go a long way toward restoring vitality to the federal principle, while simultaneously putting the judiciary back into its proper constitutional place. While the Constitution provides the means of restoration, clearly the process is a difficult one.
What Is Necessary To Bring About Such Restoration?
As demonstrated above, restoration of the Founders’ formula for preserving liberty is, indeed, possible through the mechanisms provided by their Constitution. But what must take place in order for such restoration to occur? THE PEOPLE MUST:
Prize and cherish Creator-endowed liberty above all (as did the Founders).
Study and develop understanding of the IDEAS and PRINCIPLES which, alone, lead to security and true liberty.
Study and develop understanding of the kind of deliberative, representative government (democratic republic) structured by the United States Constitution. Become familiar with its safeguards for liberty – so that they may recognize threats to their freedom under whatever disguise they may come.
Use their Constitutional knowledge and understanding to elect and support an ongoing majority in Congress and an Executive who are devoted to Constitutional principles and who will see that those appointed to the Judiciary are committed to preserving the integrity of the Constitution.
Exert their will and Constitutional privilege to recall elected officials who, once elected, support legislation which expands government power in violation of Constitutional principles.
Understand that the price of freedom is continual vigilance and accept personal responsibility for that vigilance.
See that the IDEAS and PRINCIPLES, as well as the passion for liberty, are passed on to future generations by requiring that they be taught in their local schools.
Will There Be Restoration?
For the first time in many years, there are encouraging signs that some important changes may be emerging. Although the teaching and study of the Founders’ ideas had virtually disappeared from the curriculum of the schools for many decades and partially, as a result, from public discussion, there is renewed enthusiasm and interest in those ideas among a vital and committed segment of the population. Some signs of this renewed emphasis on the ideas of liberty are:
The reappearance in print of writings of the Founders, among them, THE FEDERALIST, collections of the writings of Jefferson, Madison, Franklin, Adams, Washington, and others.
The appearance of campus groups who focus attention on study of the Founders’ writings, the Constitution, and their relationship to current political thought.
Serious questioning of the role of the courts and of the constitutionality of judicial activism. Many members of Congress now oppose such judicial activism on the part of the Court.
Increased questioning of the capacity of the national government to solve major economic and social problems. A move in many areas toward privatization of previously public services, toward greater local autonomy and toward a renewing of the concept of limited government.
Growing confidence in the free market economy and in deregulation as the best way to secure prosperity.
Serious questioning by the public of the educational establishment’s role in curtailing and changing the teaching of American history and the ideas upon which our democratic republic was built. This questioning has taken the form of books; public statements by religious and political leaders; the formation of citizen groups to remedy the situation; and test cases in the courts of several states.
Explosive growth of private and home schools where traditional values and the teaching of history are emphasized.
Growth explosion among church groups which emphasize traditional values, study of the Constitution, and the relationship between the political order and religious belief.
These and other signs are encouraging, but, at best, are just the beginning of a long journey to rediscover the greatness of our Constitutional philosophy and principles and to redirect efforts in their proper restoration.
Will The Experiment Succeed?
It was John Adams who said: “The foundation of every government is some principle or passion in the minds of the people.” Clearly, the Founders’ passion was liberty, and in order to secure that liberty, they sought out and incorporated into the United States Constitution those ideas and principles embodied in the Declaration of Independence. The French historian, Guizot, once asked James Russell Lowell, “How long will the American republic endure?” Lowell replied: “As long as the IDEAS of the men who founded it continue dominant” Herein lies the answer to the question, “Will the Experiment Succeed?” It can and will succeed IF the motivating “principle or passion in the minds of the people” is LIBERTY, and if that passion causes them to exert the determination and will to complete the needed restoration of the IDEAS upon which the great American experiment was based.
Do We Have A Living Constitution?
"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act."
- Alexander Hamilton
In the first of the eighty-five "Federalist Papers," Alexander Hamilton emphasized that:
... it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection or choice, or whether they are forever destined to depend for their political constitutions on accident and force."
The Framers knew that the passage of time would surely disclose imperfections or inadequacies in the Constitution, but these were to be repaired or remedied by formal amendment, not by legislative action or judicial construction (or reconstruction). Hamilton (in The Federalist No. 78) was emphatic about this:
"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act."
The Congress, unlike the British Parliament, was not given final authority over the Constitution, which partly explains why the judicial authority was lodged in a separate and independent branch of government. In Britain the supreme judicial authority is exercised by a committee of the House of Lords, which is appropriate in a system of parliamentary supremacy, but, although it was suggested they do so, the Framers refused to follow the British example. The American system is one of constitutional supremacy, which means that sovereignty resides in the people, not in the King-in-Parliament; and the idea that the Constitution may be changed by an act of the legislature-even an act subsequently authorized by the judiciary-is simply incompatible with the natural right of the people to determine how (and even whether) they shall be governed. Unlike in Britain where, formally at least, the queen rules by the grace of God (Dei Gratia Regina), American government rests on the consent of the people; and, according to natural right, the consent must be given formally. In fact, it must be given in a written compact entered into by the people. Here is Madison on the compacts underlying American government:
"Altho' the old idea of a compact between the Govt. & the people be justly exploded, the idea of a compact among those who are parties to a Govt. is a fundamental principle of free Govt.
"The original compact is the one implied or presumed, but nowhere reduced to writing, by which a people agree to form one society. The next is a compact, here for the first time reduced to writing, by which the people in their social state agree to a Govt. over them." (In a letter to Nicholas P. Trist, February 15, 1830)
Neither civil society (or as Madison puts it, "the people in their social state') nor government exists by nature. By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life - or, in the words of the Declaration of Independence, everyone is endowed by nature with the rights of life, liberty, and the pursuit of a happiness that he defines for himself. Civil society is an artificial person (constituted by the first of the compacts), and it is civil society that institutes and empowers government. So it was that they became "the People of the United States" in 1776 and, in 1787-88, WE, THE PEOPLE ordained and established "this Constitution for the United States of America." In this formal compact THE PEOPLE specified the terms and conditions under which "ourselves and posterity," would be governed: granting some powers and withholding others, and organizing the powers granted with a view to preventing their misuse by the legislative, the executive, and the judicial branches alike. WE THE PEOPLE were authorized by natural right to do this, and were authorized to act on behalf of posterity only insofar as the rights of posterity to change those terms and conditions were respected. This was accomplished in Article V of the Constitution, the amending article, which prescribed the forms to be followed when exercising that power in the future.
What THE PEOPLE were not permitted to do in 1787-88 was to deprive - or pretend to deprive - posterity of their natural right to do in the future what the founding generation had done in 1776. Nor could they, by pretending to delegate it to Congress, the President, or the Supreme Court, deprive them of their sovereign power to change the Constitution. Instead, that power was recognized in the Constitution's provisions in Article V.
The Framers had designed a constitutional structure for a government which would be limited by that structure - by the distribution of power into distinct departments, a system of legislative balances and checks, an independent judiciary, a system of representation, and an enlargement of the orbit 11 within which such systems are to revolve" And to the judges they assigned the duty, as "faithful guardians of the Constitution," to preserve the integrity of the structure, for it is by the structure (more than by "parchment barriers") that the government is limited. It would he only a slight exaggeration to say that, in the judgment of the Founders, the Constitution would "live" as long as that structure was preserved.
The Enduring American Constitution
Now, almost 200 years later, one can read Hamilton's words in Federalist No. 1 and conclude that, under some conditions, some "societies of men" are capable of "establishing good government," but that most are not. This is not for lack of trying; on the contrary, constitutions are being written all the time - of some 164 countries in the world, all but a small handful (seven by the latest count) have written constitutions - but most of them are not long-lived. In September 1983, the American Enterprise Institute sponsored an international conference on constitution writing at the Supreme Court of the United States; some twenty-odd countries were represented. With the exception of the Americans, the persons present had themselves played a role - in some cases a major role - in the writing of their countries' constitutions, most of them written since 1970. Only the constitution of the French Fifth Republic predated 1970; and the Nigerian, so ably discussed and defended at the 1983 conference by one of its own Framers, had subsequently been subverted, much as the four previous French republican constitutions had been subverted. It would seem that many peoples are experienced in the writing of constitutions, but only a few of them - conspicuous among these the people of America - have an experience of stable constitutional government. In that sense, we surely have "a living Constitution." That is not, however, the sense in which the term is ordinarily used in the literature of constitutional law as shall be explored herein.
Treating The Constitution As A Thing Without Form or Substance: New Definitions Of 'Living'
In the language of many today, a "living Constitution" is not first of all one that is long-lived; rather, its longevity is a secondary or derivative quality which is attributed to its "flexibility" or better, its "adaptability." It is this quality "adaptability" that allows it to be "kept in tune with the times," as the members of this school of thought sometimes say. According to them, a living Constitution is first of all a protean constitution - one whose meaning is not fixed, but variable. In this respect, it is similar to the Constitution as understood by the "judicial power" school. Some judicial power advocates go so far as to say that, until the judges supply it in the process of adjudication, the Constitution has no meaning whatever. Here are the words of judge Lynn D. Compton of California, writing in 1977 in the pages of the Los Angeles Times:
"Let's be honest with the public. Those courts are policy-making bodies. The policies they set have the effect of law because of the power those courts are given by the Constitution. The so-called "landmark decisions" of both of U.S. Supreme Court and the California Supreme Court were not compelled by legal precedent. Those decisions are the law and are considered "right" simply because the court had the power to decree the result. The result in any of those cases could have been exactly the opposite and by the same criteria been correct and binding precedent.
"In short, these precedent-setting policy decisions were the products of the social, economic and political philosophy of the majority of the justices who made up the court at a given time in history .."
So extreme a view of judicial power is not likely ever to be expressed in the official reports; there (perhaps in order to be dishonest with the public) even the most inventive judge will claim to be expounding the Constitution, if not its explicit provisions then, at least its emanations, penumbras, or lacunae (Griswold v. Connecticut). What is of interest is that a judge should be willing to express it anywhere - for what it means is that a constitutional provision can be interpreted, but not misinterpreted, construed but not misconstrued. More to the point here is that it means that the Constitution is a living charter of government only because it is repeatedly being reinvented by the judiciary.
"Creating" Constitutional Rights and Dworkies Influence
The 'Living Constitution' school and the 'Judicial Power' school may be indistinguishable at the margins, but they derive from unrelated and distinct sources. 'Judicial Power' is a product or an extension of legal realism, the school of thought whose advocates, from the beginning of the twentieth century, have argued that the essence of the judicial process consists not in interpreting law, whether statute or constitutional, but in making it. Its advocates today speak with a certain nonchalance of "creating" constitutional rights (Moore v. City of East Cleveland), and, when pressed to cite their authority for doing so are likely to point to the work of contemporary legal theorists like Ronald Dworkin and his book Taking Rights Seriously. It is Dworkin who has purportedly given this sort of "constitutional lawmaking" what it has always lacked a philosophical underpinning. As he sees it, rights cannot be taken seriously until there has been "a fusion of constitutional law and moral theory," and to make it clear that he is not referring to any particular moral theory that may have informed the Constitution as written, he finishes that sentence by saying that that fusion "has yet to take place." As it turns out, however, the moral theory he propounds, and which he hopes to "fuse" with constitutional law, proves to be nothing more than a fancy way of justifying what the judge Comptons among us have been doing all along. And what they have been doing is, essentially, treating the Constitution as a thing without form or substance, except insofar as it authorizes the judges to give it substance.
The 'Living Constitution' School's Distortion of Marshall
The living Constitution school also claims to have a source more venerable than legal realism or Ronald Dworkin - justice John Marshall. A former president of the American Political Science Association argues that the idea of a " 'living Constitution'...can trace its lineage back to John Marshall's celebrated advice in McCulloch v. Maryland (1819): 'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs' " The words quoted are certainly Marshall's but the opinion attributed to him is at odds with his well-known statements that, for example, the "principles" of the Constitution "are deemed fundamental [and] permanent" and, except by means of formal amendment, "unchangeable" (Marbury v. Madison).
It is important to note that the discrepancy is not Marshall's; it is largely the consequence of the manner in which he is quoted - ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify "all the subdivisions of which its great powers will admit;" if it attempted to do so, it would "partake of the prolixity of a legal code" (McCulloch v. Maryland), In the second statement, Marshall's subject is the legislative power, and specifically the power "to make all laws which shall be necessary and proper for carrying into execution" the explicitly granted powers.
Neither Marshall nor any other prominent members of the founding generation can be 'appropriated' by the living Constitution school to support their erroneous views. Marshall's and the Founders' concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written. They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:
"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental: and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."
At this point, it is well to remember Hamilton's strong warning about unwarranted presumptions by those in government of a power to depart from the people's established form as quoted in the title of this essay. Marshall referred to the "principles" which he called "permanent," and the "basis on which the whole American fabric has been erected" Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to "...allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of "human affairs." Ironically, the very case cited by the "living Constitution" school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.
Summary: Do We Have A Living Constitution?
What has been undertaken here has been providing (within a very brief compass indeed) an accurate statement of the principles underlying the American Constitution: pointing to (but by no means elaborating) the political theory from which they derive and the constitutional conclusions to which they lead. Among the latter is the untenability of the proposition that constitutional limitations can be jettisoned, constitutional power enhanced, or the constitutional division of powers altered, by means other than formal constitutional amendment. It will not be argued that it may sometimes be convenient to allow the Senate to originate a bill "for raising revenue," but convenience is not a measure of constitutionality.
There is much to be said in favor of the legislative veto - Who would, in principle, deny the need of checks on administrative agencies? - but, as the Supreme Court correctly said, the Framers anticipated that Congress might find reason to employ such devices and, when designing the so-called "presentment clause" in Article 1, Section 7, forbade them (Immigration and Naturalization Service v. Chadha). And from a particular partisan perspective it is understandably frustrating, simply because the required number of states had not yet ratified the Equal Rights Amendment, to be denied the power to promote the cause of sexual equality; but frustration alone cannot justify a judicial attempt to preclude the necessity of formal ratification, as Justice Brennan is said to have wished to do.
In Frontiero v. Richardson (411 U.S. 677, 1973) the Supreme Court was divided on the issue of whether sex, like race, should be treated as a suspect classification. We are told that Justice Brennan circulated a draft opinion in which he proposed to declare classification by sex virtually impermissible and that he knew this would have the effect of "enacting" the pending ERA. "But Brennan was accustomed to having the Court out in front, leading any civil rights movement," a major publication stated. Hence, we are further told, he saw "no reason to wait several years for the states to ratify the amendment." No reason, that is, other than the fact, which Brennan implicitly acknowledged, that the Constitution as then written, and which had not yet been rewritten by the only people authorized to rewrite it, did not support the role he would have the Court hand down.
Those who would use "convenience" or "frustration" as reason, or who insist that it lies within the powers of the Court (or the Congress or the Executive) to effect constitutional change, can be charged with a lack of respect for the principles on which, as Marshall wisely observed: "the whole American fabric has been erected." We are told that it is unreasonable - even foolish - to expect that the Framers could have written a Constitution suitable alike for a society of husbandman and a society of multinational corporations, to say nothing of one as well adapted to the age of the musket and sailing ship as to the age of intercontinental nuclear-tipped missiles.
As the problems have changed, the argument goes, so must the manner in which they are confronted and solved, and the Constitution cannot be allowed to stand in the way. Indeed, there is no reason to allow it to stand in the way, we are told, because the Framers intended it to be flexible. And we are told that John Marshall would support this position. But it was Marshall, in McCulloch v. Maryland, who stated: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported." The United States, in this view was not intended to be a simple society of husbandmen, and Marshall Clearly saw that the Constitution empowered Congress to do what was required to meet the crises of the Republic, and to maintain the Constitutional structure intended by the Framers, changing it only when such change would be in keeping with the structure itself.
That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a "Living Constitution" - but let that not be claimed by those who would use the language to subvert the structure.
US Constitution
"The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its components are beautiful, as well as useful; its arrangements are full of wisdom and order...."
- Justice Joseph Story
Justice Story's words pay tribute to the United States Constitution and its Framers. Shortly before the 100th year of the Constitution, in his History of the United States of America written in 1886, historian George Bancroft said:
"The Constitution is to the American people a possession for the ages."
He went on to say:
"In America, a new people had risen up without king, or princes, or nobles....By calm meditation and friendly coun cils they had prepared a constitution which, in the union of freedom with strength and order, excelled every one known before; and which secured itself against violence and revolution by providing a peaceful method for every needed reform. In the happy morning of their existence as one of the powers of the world, they had chosen Justice as their guide."
And two hundred years after the adoption of this singularly-important document, praised by justice Story in one century and Historian Bancroft in the next and said by Sir William Gladstone to be "the most wonderful work ever struck off at a given moment by the brain and purpose of man," the Constitution of 1787 - with its Bill of Rights - remains, yet another century later, a bulwark for liberty, an ageless formula for the government of a free people. In what sense can any document prepared by human hands be said to be ageless? What are the qualities or attributes which give it permanence?
The Qualities of Agelessness
America's Constitution had its roots in the nature, experience, and habits of humankind, in the experience of the American people themselves - their beliefs, customs, and traditions, and in the practical aspects of politics and government. It was based on the experience of the ages. Its provisions were designed in recognition of principles which do not change with time and circumstance, because they are inherent in human nature. "The foundation of every government," said John Adams, "is some principle or passion in the minds of the people." The founding generation, aware of its unique place in the ongoing human struggle for liberty, were willing to risk everything for its attainment. Roger Sherman stated that as government is "instituted for those who live under it ... it ought, therefore, to be so constituted as not to be dangerous to liberty." And the American government was structured with that primary purpose in mind - the protection of the peoples liberty. Of their historic role, in framing a government to secure liberty, the Framers believed that the degree of wisdom and foresight brought to the task at hand might well determine whether future generations would live in liberty or tyranny. As President Washington so aptly put it, "the sacred fire of liberty" might depend "on the experiment entrusted to the hands of the American people" That experiment, they hoped, would serve as a beacon of liberty throughout the world. The Framers of America's Constitution were guided by the wisdom of previous generations and the lessons of history for guidance in structuring a government to secure for untold millions in the future the unalienable rights of individuals. As Jefferson wisely observed:
"History, by apprising the people of the past, will enable them to judge of the future; it will avail them of the experience of other times and other nations; it will qualify them as judges of the actions and designs of men; it will enable them to know ambition under every disguise it may assume; and knowing it, to defeat its views."
The Constitution, it has been said, was "not formed upon abstraction," but upon practicality. Its philosophy and principles, among others, incorporated these practical aspects:
Recognition that love of liberty is inherent in the human spirit.
Recognition of Creator-endowed, unalienable, individual rights.
Recognition that meaningful liberty is possible only in the company of order and justice. In the words of Burke: "Liberty must be limited to be possessed."
Recognition that in order for a people to be free, they must be governed by fixed laws that apply alike to the governed and the government.
Recognition that the Creator has not preferred one person or group of persons as rulers over the others and that any government, in order to be just, must be from among the great body of the people and by their consent - that the people have a right to self-government.
Recognition of human weakness and the human tendency to abuse power; therefore, of the need to divide and to separate the power granted to government; to provide a system of checks and balances; and to make government accountable to people at frequent intervals.
Recognition that laws, to be valid, must have their basis and limit in natural law - that law which, as Cicero wrote, "is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite."
Recognition of the need for structuring a government of laws, not of men, based on enduring principles and suitable not only to the age in which it is formed, but amendable to different circumstances and times, without sacrificing any of the three great concepts of Order, justice, or Liberty.
Recognition that the right to ownership of property is a right so compelling as to provide a primary reason for individuals to form a government for securing that right.
Recognition of the need for protecting the individual rights of each citizen, rich or poor, majority or minority, and of not allowing the coercive power of government to be used to do collectively that which the individual could not do without committing a crime.
Recognition of necessity for incentive and reward as impetus for achievement and growth.
Recognition of the need for a "Supreme Law of the land" a written constitution which, consistent with its idea of the sovereignty of the people, would provide its own prescribed amendment process, thereby circumventing any potential unconstitutional changes by any of the branches of government without the people's consent.
The Constitution of the United States of America structured a government for what the Founders called a "virtuous people - that is, a people who would be able, as Burke put it, to "put chains on their own appetites" and, without the coercive hand of government, to live peaceably without violating the rights of others. Such a society would need no standing armies to insure internal order, for the moral beliefs, customs, and love for liberty motivating the actions of the people and their representatives in government - the "unwritten" constitution - would be in keeping with their written constitution. George Washington, in a speech to the State Governors, shared his own sense of the deep roots and foundations of the new nation:
"The foundation of our empire was not laid in the gloomy age of ignorance and superstition; but at an epocha when the rights of mankind were better understood and more clearly defined, than at any former period.... the treasures of knowledge, acquired by the labors of philosophers, sages, and legislators, through a long succession of years, are laid open for our use, and their collective wisdom may be happily applied in the establishment of our forms of government."
And Abraham Lincoln, in the mid-1800's, in celebrating the blessings of liberty, challenged Americans to transmit the "political edifice of liberty and equal rights" of their constitutional government to future generations:
"In the great journal of things happening under the sun, we, the American people, find our account running ... We find ourselves in the peaceful possession, of the fairest portion of the earth....We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us. We found ourselves the legal inheritors of these fundamental blessings. We toiled not in the acquirement or establishment of them - They are a legacy bequeathed us, by a once hardy, brave, and patriotic...race of ancestors. Theirs was the task (and nobly they performed it) to possess themselves, and through themselves, us, of this goodly land; and to uprear upon its hills and its valleys, a political edifice of liberty and equal rights, 'tis ours only, to transmit these...to the latest generation that fate shall permit the world to know...."
Because it rests on sound philosophical foundations and is rooted in enduring principles, the United States Constitution can, indeed, properly be described as "ageless," for it provides the formula for securing the blessings of liberty, establishing justice, insuring domestic tranquillity, promoting the general welfare, and providing for the common defense of a free people who understand its philosophy and principles and who will, with dedication, see that its integrity and vigor are preserved. Justice Joseph Story was quoted in the caption of this essay as attesting to the skill and fidelity of the architects of the Constitution, its solid foundations, the practical aspects of its features, and its wisdom and order. The closing words of his statement, however, were reserved for use here; for in his 1789 remarks, he recognized the "ageless" quality of the magnificent document, and at the same time, issued a grave warning for Americans of all centuries. He concluded his statement with these words:
"...and its defenses are impregnable from without. It has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created by virtue, public spirit, and intelligence of the citizens."
Our ageless constitution can be shared with the world and passed on to generations far distant if its formula is not altered in violation of principle through the neglect of its keepers - WE, THE PEOPLE.
Freedom Of Individual Enterprise
Free Enterprise
The Economic Dimension Of Liberty Protected By The Constitution
"Agriculture, manufactures, commerce, and navigation, the four pillars of our prosperity, are the most thriving when left most free to individual enterprise."
- Thomas Jefferson
"The enviable condition of the people of the United States is often too much ascribed to the physical advantages of their soil & climate .... But a just estimate of the happiness of our country will never overlook what belongs to the fertile activity of a free people and the benign influence of a responsible government."
- James Madison
America's Constitution did not mention freedom of enterprise per se, but it did set up a system of laws to secure individual liberty and freedom of choice in keeping with Creator-endowed natural rights. Out of these, free enterprise flourished naturally. Even though the words "free enterprise' are not in the Constitution, the concept was uppermost in the minds of the Founders, typified by the remarks of Jefferson and Madison as quoted above.
Already, in 1787, Americans were enjoying the rewards of individual enterprise and free markets. Their dedication was to securing that freedom for posterity. The learned men drafting America's Constitution understood history - mankind's struggle against poverty and government oppression. And they had studied the ideas of the great thinkers and philosophers.
They were familiar with the near starvation of the early Jamestown settlers under a communal production and distribution system and Governor Bradford's diary account of how all benefited after agreement that each family could do as it wished with the fruits of its own labors.
Later, in 1776, Adam Smith's INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS and Say's POLITICAL ECONOMY had come at just the right time and were perfectly compatible with the Founders' own passion for individual liberty. Jefferson said these were the best books to be had for forming governments based on principles of freedom.
They saw a free market economy as the natural result of their ideal of liberty. They feared concentrations of power and the coercion that planners can use in planning other peoples lives; and they valued freedom of choice and acceptance of responsibility of the consequences of such choice as being the very essence of liberty. They envisioned a large and prosperous republic of free people, unhampered by government interference. The Founders believed the American people, possessors of deeply rooted character and values, could prosper if left free to:
acquire and own property
have access to free markets
produce what they wanted
work for whom and at what they wanted
travel and live where they would choose
acquire goods and services which they desired
Such a free market economy was, to them, the natural result of liberty, carried out in the economic dimension of life. Their philosophy tended to enlarge individual freedom - not to restrict or diminish the individual's right to make choices and to succeed or fail based on those choices. The economic role of their Constitutional government was simply to secure rights and encourage commerce. Through the Constitution, they granted their government some very limited powers to:
assure that the ground rules were fair (a fixed standard of weights and measures)
encourage initiative and inventiveness (copyright and patent protection laws)
provide a system of sound currency with an established value (gold and silver coin)
enforce free trade (free from interfering special interests)
protect individuals from the harmful acts of others
Adam Smith called it "the system of natural liberty." James Madison referred to it as "the benign influence of a responsible government." Others have called it the free enterprise system. By whatever name it is called, the economic system envisioned by the Founders and encouraged by the Constitution allowed individual enterprise to flourish and triggered the greatest explosion of economic progress in all of history. Americans became the first people truly to realize the economic dimension of liberty.
Checks And Balances
The Constitutional Structure For Limited And Balanced Government
The Constitution was devised with an ingenious and intricate built-in system of checks and balances to guard the people's liberty against combinations of government power. It structured the Executive, Legislative, and Judiciary separate and wholly independent as to function, but coordinated for proper operation, with safeguards to prevent usurpation of power. Only by balancing each against the other two could freedom be preserved, said John Adams. Another writer of the day summarized clearly the reasons for such checks and balances:
"If the LEGISLATIVE and JUDICIAL powers are united, the MAKER of the law will also INTERPRET it (constitutionality).
Should the EXECUTIVE and LEGISLATIVE powers be united... the EXECUTIVE power would make itself absolute, and the government end in tyranny.
Should the EXECUTIVE and JUDICIAL powers be united, the subject (citizen) would then have no permanent security of his person or property."
"INDEED, the dependence of any of these powers upon either of the others ... has so often been productive of such calamities... that the page of history seems to be one continued tale of human wretchedness." (Theophilus Parsons, ESSEX RESULTS)
What were some of these checks and balances believed so important to individual liberty? Several are listed below:
HOUSE (peoples representatives) is a check on SENATE - no statute becomes law without its approval.
SENATE is a check on HOUSE - no statute becomes law without its approval. (Prior to 17th Amendment, SENATE was appointed by State legislatures as a protection for states' rights - another check the Founders provided.)
EXECUTIVE (President) can restrain both HOUSE and SENATE by using Veto Power.
LEGISLATIVE (Congress - Senate & House) has a check on EXECUTIVE by being able to pass, with 2/3 majority, a bill over President's veto.
LEGISLATIVE has a further check on EXECUTIVE through power of discrimination in appropriation of funds for operation of EXECUTIVE.
EXECUTIVE (President) must have approval of SENATE in filling important posts in EXECUTIVE BRANCH.
EXECUTIVE (President) must have approval of SENATE before treaties with foreign nations can be effective.
LEGISLATIVE (Congress) can conduct investigations of EXECUTIVE to see if funds are properly expended and laws enforced.
EXECUTIVE has a further check on members of LEGISLATIVE (Congress) in using discretionary powers in decisions regarding establishment of military bases, building & improvement of navigable rivers, dams, interstate highways, etc., in districts of those members.
JUDICIARY is a check on LEGISLATIVE through its authority to review all laws and determine their constitutionality.
LEGISLATIVE (Congress) has restraining power over JUDICIARY, with constitutional authority to restrict extent of its jurisdiction.
LEGISLATIVE has power to impeach members of JUDICIARY guilty of treason, high crimes, or misdemeanors.
EXECUTIVE (President) is a check on JUDICIARY by having power to nominate new judges.
LEGISLATIVE (Senate) is a check on EXECUTIVE and JUDICIARY having power to approve/disapprove nominations of judges.
LEGISLATIVE is a check on JUDICIARY - having control of appropriations for operation of federal court system.
LEGISLATIVE (Peoples Representatives) is a check on both EXECUTIVE and JUDICIARY through power to initiate amendments to Constitution subject to approval by 3/4 of the States.
LEGISLATIVE (Senate) has power to impeach EXECUTIVE (President) with concurrence of 2/3, of members.
The PEOPLE, through their State representatives, may restrain the power of the federal LEGISLATURE if 3/4 of the States do not ratify proposed Constitutional Amendments.
LEGISLATIVE, by Joint Resolution, can terminate certain powers granted to EXECUTIVE (President) (such as war powers) without his consent.
It is the PEOPLE who have the final check on both LEGISLATIVE and EXECUTIVE when they vote on their Representatives every 2 years, their Senators every 6 years, and their President every 4 years. Through those selections, they also influence the potential makeup of the JUDICIARY.
It is up to each generation to see that the integrity of the Constitutional structure for a free society is maintained by carefully preserving the system of checks and balances essential to limited and balanced government. "To preserve them (is) as necessary as to institute them," said George Washington.
Exceptionalism is punished, “global citizens” are shaped by socialist schools, and “group think” is rewarded. But most inventions of the modern world were the result of individual creativity and exceptional talent of one individual not of groups “brainstorming.”
