This Constitution: a Bicentennial Chronicle, Nos. 14-18

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AUTHOR Mann, Shelia, Ed. TITLE This Constitution: A Bicentennial Chronicle, Nos. 14-18. INSTITUTION American Historical Association, Washington, D.C.; American Political Science Association, Washington, D.C.; Project '87, Washington, DC. SPONS AGENCY National Endowment for the Humanities (NFAH), Washington, D.C. PUB DATE 87 NOTE 321p.; For related document, see ED 282 814. Some photographs may not reproduce clearly. AVAILABLE FROMProject '87, 1527 New Hampshire Ave., N.W., Washington, DC 20036 nos. 13-17 $4.00 each, no. 18 $6.00). PUB TYPE Collected Works - Serials (022) -- Historical Materials (060) -- Guides - Classroom Use - Guides (For Teachers) (052) JOURNAL CIT This Constitution; n14-17 Spr Sum Win Fall 1987 n18 Spr-Sum 1988

EDRS PRICE MFO1 Plus Postage. PC Not Available from EDRS. DESCRIPTORS Class Activities; *Constitutional History; *Constitutional Law; History Instruction; Instructioral Materials; Lesson Plans; Primary Sources; Resource Materials; Secondary Education; Social Studies; United States Government (Course); *United States History IDENTIFIERS *Bicentennial; *United States Constitution

ABSTRACT Each issue in this bicentennial series features articles on selected U.S. Constitution topics, along with a section on primary documents and lesson plans or class activities. Issue 14 features: (1) "The Political Economy of tne Constitution" (K. Dolbeare; L. Medcalf); (2) "ANew Historical Whooper': Creating the Art of the Constitutional Sesquicentennial" (K. Marling); (3) "The Founding Fathers and the Right to Bear Arms: To Keep the People Duly Armed" (R. Shalhope); and (4)"The Founding Fathers and the Right to Bear Arms: A Well-Regulated Militia" (L. Cress). Selected articles from issue 15 include: (1) "The Origins of the Constitution" (G. Wood);(2) "The Philadelphia Convention and the Development of American Government: From the Virginia Plan to the Constitution" (P. Maier); and (3) "Society and Republicanism: America in 1787" (J. Pcbnretta). Featured in issue 16 are: (1) "'The Federalist'" (J. Yarbrough);(2) "The Constitutional Thought of the Anti-Federalists" (M. Dry); and (3) "The Constitution as Myth and Symbol" (M. Klein). Issue 17 features: (1) "'Our Successors Will Have an Easier Task': The First Congress Under the Constitution, 1789-1791" (J. Silbey); (2) "The 'Great Departments': The Origin of the Federal Government's Executive Branch" (R. Baker); and (3) "The Birth of the Federal Court System" (D. Eisenberg and others). Issue 18, the last chronicle in this series, features eight articles on the Bill of Rights and three articles on the future of the Constitution. Photographs and related resources are included, and issue 18 contains an index for issues 1-17. (JHP) THIS CONSTITUTION: A BICENTENNIAL CHRONICLE

NOS. 14-18

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BEST COPYAVAILtibLi 2 f ...do ordain andestabii tOis Constitution for the UnitedStatesofloinerica.

A Bicentennial Chronicle Spring 198 , No.14

11,i\VT Awe PAYCASES foONI,t vIMI *0 ALL lb COvOotvC Posic)vuilkle AN -SS'l oNMAOis \4 butt Avvic.PD/vENT, vvivtfift The Call to the Federal Convention by the Confederation Congress

On September 14, 1786, the twelve delegates from five states who met at Annapolis drafted a resolution that proposed a meeting "at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union." The commissioners at Annapolis felt that propriety demanded that they address themselves only to the states they represented, but they decided 'from motives of respect," to send the proposal to "the United States in Congress assembled" as well. The Congress of the Ccmfederation received the motion and referred it to committee Finally, on February 21, 1787, it considered the suggestion and offered its "opinion" that such a convention was "expedient," but only for "the sole and express purpose of revising the Articles of Confederation," and reporting back to Congress and the state legislatures. With this guarded imprimatur, the delegates at Philadelphia convened to draft what would be an entirely new constitution. Whereas there is provision in the Articles of Confederation of perpetual Union for making alterations therein by the assent of a Congress of the United States and of the legislatures of the several States; and whereas experience hath evinced that there are defects in the present Confederation, as a mean to remedy which several of the States and paticularly the State of New York by express instructions to their delegates in Congress have suggested a convention for the purpose expressed in the following resolution and such Convention appearing to be the must probable mean of establishing in these states a firm national government. Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.

Source: Transcription of Secretary Charles Thomson's official Journal of the Congress, 21 February 1787, In e Constitution: Evolution doGovernment, Machete Guide (National Archives and SIRS, Inc. 119858, p. 37. . . .do ordain and establisb tOisConstitution for the unitedstatesofAmerica.

ABicentennial Chronicle

No. 14 Spring 1987 4

The Political Economy of the Constitution 4 by Kenneth M. Dolbeare and Linda J. Medcalf

A "New Historical Whopper": Creating the Art 11 of the Constitutional Sesquicentennial by Karat Ann Marling A Parley: The Founding Fathers and the Right to Bear Arms: 18 To Keep the People Duly Armed by Robert E. Shalhope The Founding Fathers and the Right to Bear Arms: 21 11 A Well-Regulated Militia by Lawrence Delbert Cress

Documents The Case of the Century: Brown v. Board of Education of Topeka 24 by Hugh W. Speer

Presidential Appointments to the Supreme Court 36 by William H. Rehnquist

The Northwest Ordinance: America's Other Bicentennial 40 18 by Phillip R Shriver The Call to the Federal Convention by the inside front cover Confederation Congress

From the Editor 2

For the Classroom: 33 The Constitution: An Economic Framework by Peter R Senn and William J. Stepien

Bicentennial Gazette 41 Planning a Conference for Higher Education by Richard Peterson Directory of State Bicentennial Commissions 24 and State Humanities Councils this Constitution is published with the assistance of a grant from the National Endowment for the Humanities as part of its special initiative on the Bicenten- nial of the United States Constitution. Editorial offices are located at 1527 New Hampshire Avenue, N.W., Washington, D.C., 20036. All material in this publication may be photocopied if attributed as follows: "Reprinted from this Constitu- tion: A Bicentennial Chronical, Spring, 1987 published by Project '87 of the American Historical Association and the American Political Science Associa- tion." Project '87 would appreciate notification from those who photocopy material in this issue for use in presentations to other groups. CO Copyright 1987 by the American Historical Association and the American Political Science Associa- tion. Printed by Byrd Press, Richmond, Va. r; this Constitution J 1 this Constitution

From the Editor published by Project '87 of the American Historical Association and the American Political Science The "Enduring Constitutional Issue" of property rights and economic Association policy serves as the theme for this Constitution in Spring 1987. The Constitution determines the economic structure of the nation, Ken- James MacGregor Burns and neth Dolbeare and Linda J. Medea lf argue in "The Political Economy of Richard B. Morris, co-chairs the Constitution," a discussion of the economic views of the founders. In our "For the Classroom" section, Peter R. Senn and William J. Stephen, in Executive Editor a lesson originally from the Senior Economist, offer ideas for teaching 1' Sheilah Mann, Director, Project '87 about the Constitution as an economic framework. Managing Editor If the Constitution is an economic document, it is also a cultural one. Cynthia Harri.on, Deputy Director, Karal Ann Marling describes how Sol Bloom, the director of the Sesqui- Project '87 centennial celebration, met the challenge to create a vivid representation of the Constitution for that commemoration. Editorial Assistant Our "Documents" article reviews the impact of the Constitution as a Jean Walen social instrument. A 1954 Supreme Court decision in the case of Brown v. Board of Education decreed that segregation provided black students Administrative Assistant with an intrinsically "unequal" setting in which to learn. Hugh W. Speer, Sally Hoffman one of the expert witnesses in the original Brown trial, presents excerpts Design Director from the testimony and the arguments in that famous suit, in an article Charles S. Snyder entitled "The Case of the Century." The issue also includes a parley, an occasional feature offering two per- Photographic Research spectives on a single issue. Here, Robert E. Shalhope and Lawrence Del- Rebecca Hirsh bert Cress debate the meaning to the founding generation of he Second Circulation Manager Amendment, guaranteeing to Americans the right to bear arms. Judy Caruthers Two special essays in this issue are particularly timely. Chief Justice William H. Rehnquist discussed "Presidential Appointments to the Su- Editorial Board preme Court" in a speech at the University of Minnesota in 1984. We are Milton Klein (Chair), Department pleased to reprint his remarks here. And since, in addition to marking the of History, University of Bicentennial of the Constitution, 1987 is also the Bicentennial of the Tennessee Northwest Ordinance, we include an excerpt from a piece by Phillip R. Milton C. Cummings, Jr., Shriver on that important subject. Department of Political Science, The September 1986 issue of this Constitution observed the Bicenten- Johns Hopkins University nial of the Annapolis meeting that asked Congress to call a convention in Margaret Horsnell, Phila :: 1phia in 1787. The response to that request by the Confederation Department of History, Congress is reprinted on the inside front cover of this issue: the call to American International College the states to send delegates to Philadelphia "for the sole and express pur- James 0. Horton, pose of revising the Articles of Confederation." That gathering in Philadel- Department of History, phia, of course, created the Constitution. The George Washington A list of state Bicentennial commissions and state humanities councils, University, and Afro-American all of whom can provide program planners and interested citizens with in- Communities Project, formation about local events this year, ends this issue. As we have report- Smithsonian Institution ed in the pages of this Constitution, the entire country will commemo- Frank J. Sorauf, rate the Bicentennial of the Constitution this year and in the four years Department of Political Science, after with a wide array of engaging, entertaining, and educational pro- University of Minnesota grams. It will be a fitting celebration. Richard H. Wilson, Secondary Social Studies Coordinator, Montgomery County (MD) Public Schools

this Constitution Joint Committee James MacGregor Burns, Co-Chair, Department of Political Science, Williams College Richard B. Morris, Cc-Chair, The Papers of John Jay, Columhia University Herman Be lz, Department of History, University of Maryland Walter F.. Berns, Resident Scholar, American Enterprise Institute Richard L. Bushman, Department of History, University of Delaware Beverly B. Cook, Department of Political Science, University of Wisconsin at Milwaukee Roger H. Davidson, Congressional Research Service, Library of Congress Don Fehrenbacher, Department of History, Stanford University Harold M. Hyman, Department of idi History, Rice University Walter Murphy, Department of Politics, Princeton - University Mary K. B. Tachau, Department of Thirteen Enduring History, University of Louisville James S. Young, Department of Constitutional Issues Political Science, University of Virginia Samuel R. Gammon, Executive Director, American Historical Association Thomas E. Mann, Executive Director, American Political Science Association Advisory Board Warren E. Burger, Honorary Chair- National PowerLimits and The Rights of Women Under man; Birch Bayh; Griffin B. Bell; Mary Potential F. Berry; Richard Bolling; John Brade- the Constitution mas; Joan R. Challinor; Robert L. Federalismthe Balance The Rights of Ethnic and Clare, Jr.; Lawrence A. Cremin; Thom- between Nation and State Racial Groups Under the as E. Deacy, Jr.; Kraft W. Eidman; Wil- The JudiciaryInterpreter of Constitution fred Feinberg; John T. Fey; Robben W. the Constitution or Shaper of Presidential Power in Wartime Fleming; Alan Geyer; Ruth Bader Public Policy Ginsburg; Fred P. Graham; Orrin and in Foreign Affairs Hatch; A. E. Dick Howard; Shirley M. Civil Libertiesthe Balance The Separation of Powers and Hufstedler; John Jay Iselin; Harry W. between Government and the the Capacity to Govern Jones; Amalya Lyle Kearse; Edward M. Individual Avenues of Representation Kennedy; Francis R. Kirkham; Edward Criminal PenaltiesRights of II. Levi; A. Leo Levin; Frank J. Mac- 'I-o-PrOperiy',:ft4f*ar4.EConottlic' chiarola; Robert McClory; Bruce K. the Accused and Protection of ij,?__911637' MacLaury; Charles McC. Mathi".;, Jr.; the Community Constitutional Change and Paul J. Mishkin; Joseph A. Pecl,man; J. Equalityits Definition as a Flexibility W. Peltason; Wilson Riles; Peter W. Constitutional Value Rodin°. Jr.; Paul Simon; Strom Thur- mond; Laurence II. Tribe; Patricia M. Wald; Charles Alan Wright

this Constitution 3 The Political Economy of the Constitution by KENNETH M. DOLBEARE AND LINDA J. MEDCALF

The U.S. Constitution deserves debts. Individuals of all social class- Constitutional Convention and the to be celebrated for creating an es became debtors as they attempt- goals that animated many of its effective political system both ed to rebuild farms and homes as members. But itis important to adapted to the realities of its era well as purchase those consumer keep in mind that the driving force and capable of withstanding the goods which had been unavailable for reform in the political structure test of time. But if we applaud the during the war. Farms and busi- arose out of concerns with "trade achievement of the framers for nesses, neglected during the War, and commerce." crafting a successful political in- were unable to produce enough to The United States of the post- strument, we often overlook the meet their loan payments; foreclo- Revolutionary era was still primari- fact that the Constitution also sus- sures were widespread. Great Brit- ly agricultural in character. Nearly tains a particular economic and so- ain appeared likely to bankrupt self-sufficient small farmers pre- cial system. The concept of "politi- American artisans and merchants dominated in the North and West, caleconomy" assumesthatand resume her previous domi- with a combination of smaller fundamental social and political nance through a flood of goods into farms and great plantations in L values and choices shape the econ- American markets. South. All of these interests strong- omy as well as the society and the In an attempt to find a way out of ly believed in the notion of rights to polity. Conversely, the nature of the the economic difficulties, various property, and particularly to the economy carries consequences for leaders began to call for revision of possession of land. Property, to the social and political structures the 1781 Articles of Confederation them, was based in tangible posses- and practices co-existing with it. In by which the several states had sionsthe farm, its stock, the the eighteenth century, both the formed a "perpetual" union. In house and harvest. Indeed, such framers of the Constitution and the 1786, the Virginia legislature called beliefs were a major force behind citizens knew that drafting and rati- for a convention of all the states to the Revolution itself. fying a constitution, a founding meet in Annapolis, Maryland. But now the threat to their farms document, meant making funda- to take into consideration the and property rights came from mental economic and political trade and commerce of the Unit- home-based creditors in the major choices about the world they wanted States; to consider how far an cities. Eastern banks, merchants, ed to build. uniform system, in their commer- and financiers had loaned the mon- In the late 1700s, there were at cial intercourse and regulations, ey enabling land to be cleared and least two contending visions of the might be necessary to their com- developed and settlement to extend future American political econo- mon interest and permanent har- inland. They too were hard-pressed myone agricultural, one commer- mony, and to report to the sever- by debts and the failure of the Con- cial. Their struggle for supremacy al States such an act relative to gress to honor its obligations. Mon- characterizes much of our early his- this great object, as when unani- ey had to come from somewhere tory. The framers and the Constitu- mously ratified by them, would and the producers on the land were tion they drafted gave a critical enable the United States, in Con- available and vulnerable. advantage to the rising commercial gress assembled, effectually to These economic pressures led economy, with its need for national provide for the same. many farmers to seek the aid of uniformity and central government Conventional wisdom now con- their state governments to prevent support. To appreciate the extent of curs with the resolutions of that loss of their farms. They wanted the the victory, we must recall some poorly-attended Annapolis Conven- states to pass laws that would au- history and analyze the document tion, that the Articles of Confedera- thorize printing new money, or to in the light of those contending tion were to blame for the apparent permit debt payment in wartime visions. failure of the government. But what paper money or personal posses- exactly was itthat the Articles sions or goods, or to delay payment The "Failures" of the Articles failed to accomplish? Was it merely of loans or prevent foreclosures in that the central government was various ways. Most states faced tre- The aftermath of the Revolution- "weak," as is so often alleged, or mendous pressure to pass paper ary War brought severe economic were there more specific flaws in money laws, and many did so. dislocations and hardships for its nature and powers? The answer The farmers' complaints, there- many. Federal and state govern- to this question offers insight into fore, were not primarily with the ments faced massive wartime both the conditions that led to the Articles of Confederation. They fo- 8 this Constitution *41 .4t.r '

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L. 9 5 But if we applaud the achievement ofthe framers for crafting a successful political instrument, we oftenoverlook the fact that the Constitution also sustains a particular economicand social system.

cused on the banks, financiers, and the international economy, with its by the Articles of Confederation other creditels whose demands for various markets. They wanted to was not such a government. It restore the kind of national and lacked every major power that the repayment of loans in hard curren- commercial interests deemed es- cy (gold and silver) threatenedtheir international commerce, with hard property. Though there were debt- money, sound credit, and enforce- sential. Unselfconsciously equating able taxing and debt collection sys- their own needs with those of the ors' riots in several states, the most nation generally, the rising com- famous is Shays' Rebellion, which tems, that had formerly existed under the rule of the British crown. mercial interests concluded that took place in Massachusetts in prosperity would elude the United 1786-1787. The farmers' frustration The difference, of course, would be with lawyers, the courts, and the that such a system would work to States until a more powerful gov- state government's support for their benefit and not to the advan- ernment with a wh'le new set of tage of British investors and trading economic powers "adequate to the creditors exploded into more orga- exigencies of the Union" (in the nized action. Daniel Shays, a typical companies. indebted farmer who had served as To this commercial/financial sec- words of the Annapolis Conven- tor, Shays' Rebellion and similar tion) w^s instituted. a captain in the RevolutionaryWar, future identity of the led hundreds of his armed neigh- debtor unrest was profoundly dis- Thus, turbing. They feared that the states' new nation was at stake inthe bors in a campaign to close the Constitutional Convention of 1787 courts and end foreclosures. His printing of more paper money angry band succeeded for a period would result in "soft money" infla- and the ratifying debates of 1787- of weeks, but was ultimately dis- tion. Increasing farmer/debtor 1788. Today, it seems only natural persed and the authority of the strength in the legislatures and lo- and inevitable that the U.S. should courts restored by state militia cal courts of the individual states have emerged as a leading commercial nation. But in 1787-1788 there from Boston. was making debt collection ever These were not the men who more difficult. Theconimercia:1- was a choice. Peopleunderstood called for revisions in the Articles. nancial sector truly believed that there was a choiceto remain pri- Their major complaint with the Ar- active resistance and political pres- marily a self-sufficient agricultural ticles, if any, focused on internal sure on state governmentsby in- nation of small farmers and yeoman defense. They needed the western debted farmers threatened the de- or become a growing international structionof propertyrights, commercial power. The new Con- boundaries defended against Indi- stitution, growing out of concerns ans and the British (wno were stub- disruption of social order and bornly refusing to move out of their sound government, and a descent with "trade and commerce," reflect- westernmost forts) anti the ability into chaos and anarchy. ed the commercial vision of Ameri- to move further west under some The commercial sector needed a ca's future. The commercial inter- protection. Otherwise, they much powerful national government suf- ests fought for a vision of a total preferred that the locus of power ficiently removed from popular un- political economy which they had remain in their states, or, even bet- rest that it could protect states written into a founding document ter, the immediate locality where against their own citizens if neces- and won. their influence could be exercised sary. Their preferred government and their numbers felt. would defend the hard money (gold The New National Economy Merchants, financiers, fledgling and silver) that made for a sound economy, develop an open national The strength of a nation's econo- manufacturers, traders and the like wealth made up the other major economic market through uniform laws that my and the distribution of took precedence over state paro- within it are profoundly affected by component of the post-Revolution- the stability of its currency and the ary United States. Though concen- chialism, and prevent British goods trated in the older cities along the from underselling American prod- availability (and cost) of capital and Atlantic coast, their business activi- ucts. It had to be a government with credit. The powers granted to the the power to tax effectively, in or- Congress in the new Constitution in ties were pushing ever deeper into Article I, Section 8, amount to a the backwoods settlements, more der to repay its outstanding debts and maintain solid credit with its framework for a new fiscal system. or less consciously seeking to build Most importantly, the new Con- a national market economythat own citizens as well as the interna- would transcend state boundaries. tional commercial community. gress could declare what would They also sought to become part of Clearly, the government created constitute money and could control

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its value (Article I, Section 8, Clause prior debts, but also 5). The states, by contrast, any future imported into the United States. were ones it might contract. The power This grant of power had three prohibited from coiningmoney, to borrow money on the credit of sig- emitting bills of credit, and allowing nificant implications. First, itgave the United States was, ofcourse, the national governmentan easy anything but gold and silver coinas explicitly granted At tide I, Section the basis for paying debts (Article way to collect taxes. Duties or im- I, 8, Clause 2). posts on imported goods Section 10, Clause 1). Thestates are col- In other words, with thepower to lected directly from the importer were thus excluded from participa- repay debts, the national govern- or tion in shaping the nature receiving merchant; theconsumer and value ment would be creditworthy, i.e., is often unaware of the of the country's currency, and,not capable of borrowing increased new money in cost of the goods. (By contrast,a coincidentally, from respondingto the future, provided it also persuad- the pressures to issuepaper money tax on property is more difficultto ed prospective lenders that it had enforce and, especially in the early or define what would be "legal the political will to doso. In theory, tender" for the payment of years, more likely to have provoked debts. the most creditworthy borrower in resistance.) (Some of those states had been the world is a sovereign authority Second, the power to imposepo- actually contemplating makingpro- with effective taxingpower and the duce, such as wheat, legal tender!) tentially high dutieson imports determination to honor its obliga- gave the new national government Unstated, of course, was thepros- tions. The framers made such obli- pect that gold and silver, the tradi- sweeping power to controlaccess gations legally binding, and Alexan- to the American market,a power tional "hard money" of bankersand der Hamilton's subsequent financial creditors, would now reign unchal- that could be used for variousecon- program set out to convince the omy-promoting purposes. The lenged as the basis of theeconomy. world of the new government's ab- cen- tral government couldprotect in- Almost as important as the value solute determination torepay. Once of money and the availabilityof fant American industries fromthe this principle was firmly estab-competition of foreign goods,or capital and credit fora future com- lished, Hamilton argued, the nation- grant greater profitabilitytofa- mercial economy was the financial al government would becomea cre- strength of the national government vored industries by maintaining ditworthyengineforfuture their prices at artificially high lev- itself. In the new Constitution,as in economic development. Its sound the Articles before it, the debts els. And it could effectivelypro- en- credit could then serve to undergird mote export industries through tered into before its adoptionwere the economic activity of the private accepted as valid obligations (Arti- threatened retaliation againstany economy. Money would have stable foreign country that soughtto ex- cle VI, Clause 1). But in thisin- value; investment would beencour- stance, the Congress was granted clude American products fromits aged; and prosperity would natural- markets. power to lay and collect the neces- ly follow. sary taxes, and, as we shall see in Third, when read together with Among the taxes the neu nation- the prohibition againstany state's the next section, thispower was al government was specifically au- imposing duties or impostson im- now made enforceable. Thenew thorized to lay and collectwere government could not only ports or exports, this grant ofpow- pay its duties and impostson goods being er began to establish the United Nils Constitution 1- 11 Saw mill and block house on fort Ann Creek. N.Y.. 1789. Library of Congress.

States -government's responsibility tribes. This broad power, so much mity in its actions. For example, for promoting a national market the focus of later litigation, was Congress may not give preference and national prosperity. The states clearly the linchpin of the national through its commerce or revenue were allowed to lay imposts or du- economy-to-be. Almost from the be- powers to the ports of one state ties on imports or exports only if ginning, debate arose regarding just over those of another. Nor can it absolutely nee 3sary for purposes how fully this grant of power, by require ships bound from one state of inspection. Even then such laws itself, excluded the states from a to enter, clear, or pay duties in were std)ject to the permission and commerce-regulating role. Howev- another (Article I, Section 9, Clause revision of Congress, and any reve- er, it is quite clear from the "su- 6). All duties, imposts, and excises, nues became the property of the premacy clause" (Article VI, Clause as well 1.s bankruptcy provisions, U.S. Treasury. In no other pa t of 2) that, when Congress has acted to must be uniform throughout the the Constitution were the states regulate commerce, the states can- country (ArticleI, Section 8, more explieltly, comprehensively, not act to the contrary. Clauses 1 and For good mea- or firmly excluded from an eco- There has also been much debate sure, the Constitution also assures nomic role they had formerly en- over the precise definition of "com- that the citizens of each staa shall joyed. merce ... among the several enjoy the same privileges and im- The _framers sought to develop states," and thus ow- the scope of munities as the citizens in other the mr,tional character of the eco- Congress' power. But there can be states (Article IV, Section 2, Clause notnie market. and to establish the no doubt of the framers' intent to 1), meaning that no state could give !V goven,.ment as its protec- give the national government re- preferences in businei or other t 'promoter. The famous sponsibilityfor maintaining and economic opportunities to its own .e clause" (Article I, Sec - promoting a national market. Not citizens. .se 3) contributed to that only were the states excluded from No account of the Constitution's the CongiCSO gral. ed their former practice of taxing im- commitment to a sound national : to regulate commerce ports and exports crossing their economy would be complete with- with foreign nations, among the borders, but Congress was also re- out inclusion of the prohibition sk..veral states, and with the Indian quired to maintain national unifor against state laws impairing the ob-

this Constitution 8 12 The new Constitution, growing out of concerns with "tradeand commerce," reflected the commercial vision of America'sfuture. The commercial interests fought for a vision ofa total political economy which they had written into a founding documentandwon.

ligations of contract (Article I, Sec- change locally. In eighteenth-centu- quently (but narrowly) ratified by a tion 10, Clause 1). This provision ry American communities, all often majority of those who voted on the was aimed at the kind of debtors' agreed to share the burden of hard issue. demands that resulted in Shays' Re- times by delaying debt collection; In basic structure, the proposed bellion. Article I, Section 10, Clause foreclosures on property constitut- nation& government was candidly 1 prevents state "impairment" of ed only a very last resort orwere designed to prevent majorities from any pre-existing contract that might prevented by force, if necessary. As being able to pass any ill-conceived bind participants in the private the legal historian Morton J. Hor- legislation in the heat of passion or economy. In other words, once a witz pointed out: "The commu-envy, for example, "paper mon- transaction has resulted in a con- nity's sense of fairness was often ey, ... an abolition of debts, an tract, state governments mure- the dominant standard in contracts equal division of property," as spect (and enforce) it. All partici- -rases." James Madison enumerated in The pants in the private economy The point is that a populace's Federalist No. 10. The framers were (including, of course, creditors) preferred version of political struc- generally uneasy about the capacity were now able to enforce perform- tures and practices will fit with the of groups of people to make ratio- ance of contracts, without fear that manner in which they obtain their nal and "just" decisions. "Democra- a state might legislate changes in livelihoodtheir economy and cy" was a thing to be feared. the terms of the obligations in- with the values and social princi- James Madison's Federalist No. volved. This vital intangible proper- ples that they hold. So it was in the 10 contains the classic statement of ty right, so integral to an active founding era. Some Americans the problems inherent in allowing commercial economy, was now im- usually farmerspreferred a local- the majority to govern. He first mune from state legislative attacks, ly-based and locally-controlledpo- states that an unequal acquisition of such as mortgage moratoriums, or litical structure, with a potent legis- property is inevitable, as is the pro- locally sympathetic juries. lature.Otherspreferreda pensity of pe, ale to form "fac- government capable of enforcing a tions," or group., seeking theirown The National Economy's uniform set of laws across theen- Supporting Political System self-interest rather than the public tire territory, with the locus of pow- interest. But generally there are two er nationally oriented and removed main factions"those who hold By its very nature, a commercial from direct popular control. They and those who are without property economy depends on opportunities preferred a strong executive to deal ... those who are creditors, and for business growth and profit, the with international affairs anda those who are debtors." Unfortu- sanctity of contracts, and respect strong judiciary to enforce property nately, most often those without for the intangible property rights rights and national uniformity. property and/or the debtors make that allow gains realized from all These persons tended to be more up the majority of the populace. these transactions to be retained cosmopolitan, wealthier, and inter- Therefore, the problem is "to se- for the future. All of these require ested in commercial, manufac- cure the public good and private confidence that the national gov- turing or financial activities. rights against the danger of such a ernment will maintain order, pro- And it was the members of this faction, and at the same time to tect credit, preserve sound money, latter group that attended the Phila- preserve the spirit and the form of and enforce rights and contracts. delphia Conventionnot the small popular government." The solution Citizens must retain confidence farmers unable to leave their land is a large republic with a govern- that courts will function, that writ- for an extended period of time. ment designed to fragment and conten contract terms will prevail, that Therefore, the Constitution which trol the majority. money will stay soundif a nation- emerged favored the attending del- The extent to which the framers al commercial economy is togrow egates' vision of what the United accomplished the control of poten- and prosper. States and its political structures tial majorities of "have nots" has On the other hand, for those who and institutions should be and do. been described many timesnota- livein a relatively self-sufficient The Constitutional Convention was bly the system of separation of farming community and trade most- an eminently political activity powers and checks and balances. ly with neighbors, whose fortunes where (some) members of the pub- But the Constitution, and its subse- depend upon nature, it helps to be lic met to discuss and make public quent interpretation, added a new able to control the medium of ex- choices, choices which were subse- means to accomplish this end. In this Constitution 13 Charles Town, South Carolina, 1768. Library of Congress. contrast to the Articles of Confed- the power of the majority. The these choices. But because the Con- eration, the new Constitution and counterargument, offered by Thom- stitution provides mechanisms for the laws of the United States ap- as Jefferson and others (expressed change, political economic choices plied directly to individuals. Failure in the case of Eakin v. Raub, 1825), continue to be in fact the responsi- to pay taxes, for example, would has been lost, both figuratively and bility of every generation of Ameri- result in prosecution and convic- in reality. It ran that, since the peo- cans. tion in the federal courts. Ultimate- ple are the founders and expressed ly enforcement of any unpaid judg- their will in the Constitution, it Suggested additional reading: ments through seizure and sale of should be the people who decide Eric Foner, Tom Paine and Revolutionary property would be by U.S. officers what the Constitution means. At a America (1976). rather than local courts, juries, or minimum, an elective body, the leg- James A. Henretta, The Evolution of Amen sheriffs. A complex national judicial islature or Congress, should be the can Society, 1700-1815 (1973). deciding voice rather the Supreme Morton J. Horwitz, The Transformation of system, composed of federal law, American Law, 1780-1860 (1977). federal courts, and a host of law- Court, an appointive body. The opti- Jackson Turner Main, The Anti-Federalists: yers, could ensure conformity with mum, of course, would be a referen- Critics of the Constitution (1964 the requirements of the private dum to the people as a whole. Gary B. rash, The Urban Crucible. Social Change, Political Consciousness and the commercial economya protec- Origins of the American Revolution tion of intangible property rights, A Concluding Note (1979). enforcement of contracts, uniformi- David P. Szatmary, Shays' Rebellion: The ty of rules. What John Adams called The frmers intentionally sought Making of an Agrarian Insurrection "an empire of Laws" could deftly the adoption of a founding docu- (1980). control a fractious people and pre- ment that would support and en- serve order in an apparently neutral hance the emerging national, and Kenneth M. Dolbeare holds degrees in and mechanical way. international, economy. Without both political science and law. lie teach- Although the Constitution no- recognition of the framers' overall es political economy at the graduate pro- purposes, today's obst. -^r might gram in public administration at The where explicitly gives the Supreme Evergreen State College. His most re- Court power w declare acts of Con- assume that the current U.S. econo- cent book is Democracy at Risk: The gress void for inconsistency with my was inevitable, or that our polit- Politics of Economic Renewal (1986). the Constitution, Hamilton had ar- ical institutions and practices stand gued for such power in his famous independent of that economy. Nei- Linda J. Medcalf, a political scientist, is a Research Associate at the Washington Federalist 78. Chief Justice John ther of these is true. Our economy State Institute for Public Policy. She is Marshall later adopted that argu- reflects the framers' goals and the co-author with Kenneth M. Dolbeare ment and fully established this last choices, and our political institu- of Neopolitics: American Political Ideas and most powerful "check" upon tions their design to implement in the 1980s (1985).

'4 this Constitution 10 Yie,#WA, A "New HistoricalWhopper": Creating the Art of the ConstitutionalSesquicentennial by KARAL ANN MARLING

On August 23, 1935, a Joint Res- dation. He was worried about the olution George Washington, albeit a little of the Congress length of the anniversary period, starchy for the tastes of the 1930s, charged a special commission slated to run from the spring of was still a man who could be and with mounting the official celebra- 1937 (delegates had met to revise often was pictured in concrete de- tion of the 150th anniversary of the the Articles of Confederation in tailstanding up in a rowboat on a "birth of the Constitution." The May, 1787) through the spring of stormy night, or brandishing a President of the United States was 1939 (Washington took the oath of hatchet. In 1932, in fact, Bloom had the titular chairman of that body, office as president under thenew wisely concentrated on the human which included a host of distin- Constitution on April 30, 1789). But image of the Father of His Country, guished and busy members from what troubled him even morewas until no sentient American could both chambers, and a decorative the seemingly abstract, impersonal smattering of private citizens from enter a public building, go to character of the events to bere- school, attend a lodge meeting, mail several more or less remote points called to the national mind. in the Union. a letter, or open a newspaper with-

Sol Bloom, Czar of the Sesqui- Study for Constitution mural panel in Justice Department Buildingby Boardman Robinson, from Edward Bruce centennial and Forbes Watson, Art in Federal Buildings 11936). Courtesy Karat Ann Marling. Neither the legislators nor the far-flung representatives of John Q. Public were expected to relish the day-to-day toil of making Ameri- cans everywhere "Constitution- conscious," of course. So it came as no surprise to Washington insiders when FranklinD.Roosevelt promptly named Rep. Sol Bloom of New York Director-General and de facto czar of the United States Con- stitution Sesquicentennial Commis- sion. The indefatigable Mr. Bloom, a former showman, songwriter, mov- ie-palace magnate, and Ferris- Wheel promoter, had just closed the books on his wildly successful national observance of the bicentennial of George Washington's birth, a public relations triumph that elicited this accolade, by wire, from Will Rogers:

YOU ARE THE ONLY GUY EVER MADE A PARTY RUN NINE MONTHS, AND YOU DID IT IN DRY TIMES TOO. SOL YOU MADE THIS WHOLE COUNTRY WASHINGTON CONSCIOUS....

Despite such votes of confidence, the ebullient Bloom embarked upon his new commemorative chore with uncharacteristic trepi- CON STITLITI this Constitution 15 The Declaration of Independence by John Trumbull in the U.S. Capitol Rotunda. Art Collection of the Architect of the Capitol. out meditating on the personhood picture of the signatories, inching imagery, he wrote, was "in line with of the First President: his picture gravely forward one by one, to bend the commission's plan to tell the was everywhereon posters, over the self-same sheet of parch- story in terms of the men who had stamps, ads, booklets, calendars ment on which their names could done the work " - -it is clear that the from the butcher, and all manner of still be read: style of the Constitutional fete was patriotic bric-a-brac. But now, borrowed in toto from the earlier Bloom lamented, "I had a document I see Benjamin Franklin, some- Washington bicentary, the publicity to work with instead of a man." what bowed with age, his keen campaign for which had opened Congressman Bloom's predica- eyes twinkling behind enormous with a much-ballyhooed search af- ment, as head of the Constitution spectacles. He is chatting with a ter an "absolutely authentic" por- Sesquicentennial Commission, was younger man of fresh complexion trait of the Father of His Country to to find a way to give pictorial life to and handsome featuresL'exan- be emblazoned upon those millions the words, ideas, and invisible aspi- der Hamilton, of New York.... A of posters and stamps. After the rations of the human heart that small, shy gentleman in black ad- 1932 celebration, Bloom and his reposed in the Constitution. In do- vances. He and General Washing- staff had come to treat all history as ing so, he chose to ignore the dy- ton exchange nods of friendly biography, framed in the dramatic namic constitutional issues that oc- courtesy, and I see this gentle- mold of a rags-to-riches story in a cupied the political observers of the man sign his nameJames Madi- magazine or an epic of the silver daythe constitutionality of the son, Jr. Madison, the most indus- screen, like Alexander Hamilton New Deal legislation, the scope of trious and resourceful deputy of (1931), with Alan Mowbray in the national powerand to focus inall, the genius of statecraft and role of Washington. Concepts and stead on the enduring, indeed trans- persuasiveness who wove into events thus became portraits, a cendant, nature of tht, document. one fabric so many conflicting habit that carried over into the Using the Bicentennial of Washing- opinions. So they come for- planning for the observances of ton's birth as a model, Bloom once wardinformally, chatting, smil- 1937 and 1938. Beyond simple iner- again chose an heroic approach, ing, with the air of men who are tia, however, there were also sound but one that encompassed every relieved of a tremendous burden aesthetic and ideological reasons American. of labor and responsibility.... In for Bloom's anxiety to treat the On September 17, 1937, when Sol due time Washington brings the Constitution in meaningful pictorial Bloom kicked off the festivities gavel down and dissolves the terms. with a speech before the Shrine of convention. the Constitution in the Library of The Search for a Picture Congress, the problem of visualiza- Although the Director-General tion was uppermost in his mind. would justify the pictorial nature of The artistic issue was complicat- And so in his address he humanized his remarks on the basis of instruc- ed by the distinctly unpicturesque the document with a vivid word- tions from his board membersthe scenes called to mind by the long

1 this Constitution 12 16 Great men had average qualities, writ large; but Everyman...also harbored the seeds of greatness.

string of peaceable meetings, as- simply not tall or colorful or differ- pendent rhythms of line and shape semblies, and conventions whereby ent enough, in this conclave of his assume much significance. The Americans got themselves a Consti- peers, to command much attention, educational value of composition in tution in the first place. Indeed, despite the trophy of flags mounted general, and of the "conclave" pic- some of the proudest artistic tal- on the wall just above his head. As ture in particular, therefore, left ents of the young republic had been for the rest of the forty-seven gen- much to be desired, as the Constitu- humbled by the task of making a tlemen included, they line them tion Sesquicentennial Commission large group of bewigged colonial sel%es up in even, featureless rows would shortly learn from an irate gentleman, sitting or standing about compelling only to antiquarians public. a large chamber, seem in the least with magnifying glasses. Bloom's hunt for Washington pic- interesting to the onlooker. John At best, Trumbull's composition tures had turned up a series of Trumbull's valiant attempt to bring itself bespeaks a certain orderli- nineteenth-century biographical a sense of moment and lasting sig- ness, a visual parity among its own potboilersby JuniusBrutus nificance to the framing of "The constituent elements that might Stearns. On September 17, 1937, Declaration of Independence" in suggest eighteenth-century reason, even as Congressman Bloom was his mural in the Capitol Rotunda the rule of law, and the equality of gazing, in his mind's eye, at the (1786-97) is a case in point. His free men ruled by law, notions po- Founding Fathers solemnly reas- Revolutionary War scenesfairly tentially useful to -the painter of sembled to sign the Constitution crackle with the energy of sweep- Constitutional histories in 1937. But anew, the post office was issuing a ing diagonals: the din and confusion thotIghts of the Declaration of Inde- three-cent stamp of a blinding ma- of battle are mirrored in the pat- pendence (or the Constitution!) are genta hue adorned with the fifth of terns ef light and darkness that play not inherent to such arrangements the Stearns paintings meant to il- across the surface of his canvases. of form: the viewer must recognize lustrate "George Washington, the But here the tall, red-haired Jeffer- the scene and know a good deal Statesman"), a work called "Signing son, with the stubby Adams at his about the particular parchment be- of the Constitution in Philadelphia elbow, depositing his draft of the ing brandished, signed, or laid qui- Convention." That title appeared on document on Hancock's table is etly upon a table before those inde- the face of the stamp in "micro-

Madison Submits the Constitution to Washington and the Convention by Barry Faulkner. ==.11111..

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. . this Constitution 17 13 The latter's pair of murals in the rotunda of the new National Ar- chives building, representing the Declaration and the Constitution, had been unveiled, late in 1936, to almost universal indifference. Al- though he had avoided the all-lined- up-for-the-class-picture tedium of his predecessor's efforts by spreading his dramatis personae at random in a sort of classicized pastoral setting full of lofty columns and leafy trees, in the process Faulkner sacrificed the story he was telling to compositional variety. Those few lovers of art (or the Constitution) who ventured up Pennsylvania Ave- nue for a look at the pictures went away, like one of Bloom's roving deputies, convinced that Mr. Faulk- ner "must have been reading Ro- man history and not American history." Even the free souvenir penny-banks dispensed to visiting schoolchildren by American Can Company to mark the occasion went begging. Had Bloom's minions searched long and hard enough around the neighborhood of the Federal Trian- gle, they might also have discovered a sculptural frieze by Paul Jennewein, entitled Constitution

Cover MTh Story of the Constitution by Sol Bloom (1937), with the official poster by Howard Ctvedler Christy. 1789, tucked away in the entrance vestibule of the new Justice Depart- ment building on Constitution Ave- scopic inscription," and, according course, withdrawn from sale, but nue. They might have found the to an indignant editorial in the Phil- the skirmish alerted Congressman sketches for a mural-in-progress on adelphia Inquirer, it was a lucky Bloom to the deplorable fact that in the same subject by Boardman thing the name was there! all of Washington, D.C., there Robinson, a panel slated to be part seemed to be but one single, extant of the vast, decorative program Such explanation is highly neces- painting depicting the signing of the winding up the main stairhall of the sary, since the 39 masculine fig- Constitution! Indeed, if J.B. Stearns' same building, tracing the history of ures whom the artist has seen fit historical tableau was numbered jurisprudence from Menes and Mo- to crowd into a space less than among such works, there were only ses to Justice Holmes. In both an inch and a half wide and seven six quasi-memorable renderings of Jennewein's and Robinson's rendi- eights of an inch deep might be the theme inall of the United tions of the theme, the informed doing anything, from sig:.:ng the States, and those by such minor observer, it is true, could probably Constitution to singing the Star stars in the painterly firmament as pick out Washington and Franklin if Spangled Banner in chorus. Thomas P. Rossiter, Albert Herter, he or she looked for them, but the Joseph Boggs Beale, John E. Froeh- generic quality of the images as a The offending image was, in due lich, and Barry Faulkner. wholeidentified mainly by their

14 this Constitution -. 1 8 coats and wigs, the participants all look very much aliketacitly admitted that the scene was a visual cliché, an emblem nobody was expected to examine closely, in order to spot William Few of Georgia, or Richard Dobbs Spaight, of North Carolina, in a characteristic pose. That indifferent attitudethe sense that history was safely over and done with, that it could be reduced to a few, ritualized symbols trotted out briefly on national anniversarieswas unacceptable to a fellow who had devoted years of his life to making George Wash- ington "live again, in the hearts and minds of his countrymen," and 4,

whose preparations to revive inter- We the People, Sesquicentennial painting by Howard Chandler Christy. est in the Constitution included a painstaking effort to locate and publish "entirely authenticated" kind of celebrity stood in for the pensing was to supply historical portraits of the fifty-odd worthies in average American who, with a little lives with the same kind of detail knee britches involved in framing luck and a boyish modesty, could and texture the real lives chroni- and ratifying the document. Sol probably have flown to Paris solo cled in those magazines had. ("Who Bloom was both puzzled and af- with a packet of homemade sand- were the oldest and youngest mem- fronted by the apparent shortage of wiches tucked under one arm. Or bers of the Constitutional Conven- pictorial homages to America's so Lindy's feat was described at the tion?" reads a typical Bloomian Constitution, and by the ho-hum time. Likewise, the average Joe of query. The answer: "Benjamin treatment the subject seemed to middle years, spreading girth, and a Franklin, of Pennsylvania, then 81; invite. But he was also predisposed taste for a beer, found it hard to and Jonathan Dayton, of New Jer- to see a remedy for this artistic resist identifying with the doings of sey, 26.") And the point of Sol failure in the rhetoric of "thecom- Babe Ruth: there, but for a long ball Bloom's several million Washington mon man," the little guy, the Ameri- and a pin-striped uniform, went pictures, along with his growing can individual. most of the Bambino's fans! In the roster of "signer portraits," was to Bloom had first been elevated to thirties, the suffering poor captured convince the average citizen that a his position as the nation's master on film by government photogra- sturdy bond of kinship existed be- of ceremonies on commissions cre- phers as they tramped along dusty tween himself and the luminaries of ated by Coolidge and Hoover. Yet highways in flight from their own the past, with their big noses, re- his approach to the business of joblessness were brothers"Broth- ceeding hairlines, beady eyes, and commemorating proved equally er, Can Ya Spare a Dime?"to the other all-too-human marks of a servicable to the Roosevelt admin- anxious breadwinners who looked common humanity. istration because, whatever the at those pictures in the magazines, considerable political differences and trembled. Howard Chandler Christy between the New Deal and the pre- Great men had average qualities, ceding Republican administrations, writ large; but Everyman, as the In 1932, Bloom had turned to it can be argued that a thread of novels of Steinbeck and Dos Passos Norman Rockwell and other fam- fascination with the uniqueness of so movingly demonstrated, also ous illustrators of the day, popular every citizen runs without interrup- harbored the seeds of greatness. artists known for precisely that tion through American culture dur- The point of the kind of once -upon- common touch, in order to "sell" ing the years between the wars. In a -time trivia Bloom's commissions the notion of the relevance of his- the twenties, for instance, a distinct delightedin preserving and dis- torical personagesand to a much this Constitution .19 15 lesser extent, of historical events ers like some legless apparition hair, and a figure that would do a to the affairs of the present day. In from a patriot's dream, just above bathing beauty proud. She is, in- 1937, faced with the seemingly im- the heads of a select group of deed, what being a citizen of a possible chore of selling a dusty Founding Fathers who contrive constitutional republicone of document to the same customers, manfully to ignore her. In the paint- "The People"might well mean to Bloom turned again to an illustrator ed version, published in the New the average American fellow, walk- whose stock-in-trade was giving the York Times and elsewhere, she is ing on a beach on a sunny Saturday, most unpromising products a per- accompanied by a troop of subsid- free as a bird, with the wind in his sonal appeal. Thus it was that How- iary attendants, including a wafting hair, and pretty girls everywhere. ard Chandler Christy, designer of Boy Scout. But both versions of As she reaches forward out, of the celebrated "Uncle Sam Wants "We, the People" forceably bridge Christy's poster toward that sunny You" recruiting poster of World the gap between past and present realm outside the picture, the spec- War I fame, became the unofficial by the palpable, even contemporary tator must wonder how the old "official" painter of the Cbnstitu- character of a girl who most often gentlemen in the wigs have failed to tion Sesquicentennial Commission. appeared as a lifeless stone god- notice her vibrant being! In that capacity, Christy contribut- dess on the steps of some library. If Franklin, Madison, and Daniel ed to the cause the design for a Instead, she is an all-American girl Carroll teem oblivious to the lady, poster called "We, the People" of 1937, with lipstick and marcelled they are, however, far from indiffer- based on a large painting of the same name from which, when it wasinevitablyreproduced in Statue of George Washington by James Earle Fraser at the 1939 World's Fair. Collection of Karal Ann Marling. the public arena, the creator derived considerable income. The lower half of the composition roughly followed previous de- pictions of the assemblage in Phila- delphia's State House, but the upper and far more prominent half of the picture featured one of the artist's patented "Christy Girls," got up in a kind of evening gown of gauzy stuff, and perched leadenly on the outstretched wings of the American eagle, suggesting some patriotic principle, but one obscured rather than clarified by her multiple attributes. "Liberty" often wears such a costume, for example, but so do emblematic figures of "Charity," "The American Conti- nent," and even "Alma Mater" on occasion. She wears a laurel wreath upon her head, like "Victory" or "Truth." But she carries the Roman fasces, the unmistakable symbol for "e pluribus unum" and so, perhaps, she is a new allegory of "The Peo- ple"the maternal origin of the American nation, kindly, victorious, and free. In the poster version, at any rate, backed by a billowing flag, she hov-

20 this Constitution 16 f , The Constitution meant the freeinteraction of historical personages with modern-day Americanswhose lives their thoughts andactions had influenced and would, it seemed, shapefor all time to come.

ent to the world of their descen- contemporary critics and present- dants. Lost in thought, the Washing- that future, as though hewere day historians alike have doubted about to step out of history into the ton of "We, the People" presents his the sincerity of the business inter- noble profile indifferently to the fairgoing world of 1939, and thun- ests who mounted the '39 Fairos- der off down the Mall in pursuit of viewer, but most of his confreres tensibly to honor the Constitutional peer out with a fierce intensity at his nation's destiny, with his latter- Sesquicentennial, and specifically day descendants at his heels. Sol Bloom, Mr. Christy, and the the inauguration of George Wash- crowds of average Americans The Constitution, to Sol Bloom ington in New York City on April 30, and others who honored itsgenesis prone to hurry past such posterson 1789. And yet, under the relentless their daily rounds. The lively inter- in art in the 1930s, meant thefree prodding of Bloom and his Com- interaction of historicalpersonages est of history in the doings of the mission, Washington was a signifi- rising generation, rather than the with modern-day Americans whose cant presence amid the glimpses of lives their thoughts and actions had almost too humanized prettiness of a utopian tomorrow provided by the Christy Girl, was the artist's influenced and would, it seemed, the General Motors' "Futurama," shape for all time tocome. It meant ultimate solution to the problem the suburbanized "Democracity" of Bloom set for art in the service of an aesthetic marked by a certain the 1960s tucked away inside the pictorial dynamism: Washington's the Constitutional Sesquicentenni- Perisphere, and the Westinghouse al. The world of the 1787 had be- quivering foot and the sharp pavilion, where "Elektro" the Robot glances of Christy's signerscon- come pictorially as one with the and his mechanical dog predicted world of 1937. trast dramatically with the stasis of the shape of the world tocome. earlier renderings of constitutional As a reward for his services, Souvenir vendors, for instance, did Christy was, in 1939, given a $30,000 history. Those glances, those a brisk trade in china pitchers made twitchings and stirrings, meant that commissionthe contract by-in the streamlined likeness of passed all the usual competitive the Constitution was stillan active Washington's head. Commemora- force in the world of Sesquicenten- proceduresto translate his poster tive medals issued for the occasion nial America. As for the framers into a gigantic, 20- by 30-foot pic- featured the inaugurationon one ture of the Signing of the United and signers, the Founding Fa- side and the geometric modernism therswhy they looked a lot like States Constitution destined for the of the Theme Centeron the other, Grand Stairway of Capitol's lower that big man in a hurry,a big guy as if to assert that America's yester- with a dream of the future. They chamber. Time, in a snidecommen- days ensured the glories of her to- tary on the 1941 dedication, repeat- looked, in short, a lot like theaver- morrow. And at night, with the red, age American in 1939. edly noted the size of the "new white, and blue bands of the flag historical whopper," as if the scale projected upon its surface, the skin alone warranted attention. But the of the Perisphere often servedas a Suggested additional reading: biggest thing about Christy'scanvas dramatic background for the gleam- was, in truth, its overweening ambi- ing white 65-foot statue of Washing- Sol Bloom, The Story of the Constitution tion to make the affairs of the eigh- (1937; rep. 1986). ton by James Earle Fraser that was Michael Kammen, A Machine That Would Go teenth century relevant to the twen- the principal decorative feature of of Itself: The Constitution in American tieth by focussing the thrust of the the mile-long Constitution Mallat Culture (1986). action not upon the act of signing the heart of the fairgrounds. There, but on the reactions of the modern- too, lay the symbolic message of day witness to that event, the view- the World's Fair, proclaimed by the Karal Ann Marling is professor of Amer- er toward whom the majority of the ican studies and art history at the Uni- massive emblems anchoring the versity of Minnesota. Among her recent painted, founders glance, turn,or ends of a ceremonial plaza named books are Wall-to-Wall America: A Cul- gesture. The past, then, acts as wit- in honor of the Constitution.On tural His:cry of Post-Office Murals in the ness and inspiration for the Ameri- one side stood the twin symbols of Great Depression (1982), and The Colos- can future, in a conceit also writ American progress and promise. On sus of Rocds, Myth and Symbol Along the large upon the plans for the 1939 American Highway (1984). Her study of the other loomed the massive George Washington iconography in the New York World's Fair. Washington, his cloak swept back, twentieth century is forthcoming from Dazzled by the sleek modernity his hat in hand,one foot poised Harvard University Press. Professor of the Trylon and Perisphere that expectantly over the edge of his Marling in 1985 was the Louise Crow- loomed above Flushing Meadow, ninshield Fellow at the Winterthur Mu- pedestal, gazingintently toward seum. 0 this Constitution 21 17 ft, A Parley The Founding Fathers and the Right to Bear Arms: To Keep the People Du!y Armed by ROBERT E. SHALHOPE

ver the past quarter-century, in their society in the late eigh- merits; and therefore propose Americans have grown in- teenth century, Americansfirur.ly that it should run in this or some creasingly concerned about believed in t%distinct principles: such like manner, to wit, The the0 private possession and use of individuals had the right to possess people have a right to keep and firearms. Their differences, which arms to defend themselves and bear arms as well for their own range from polite public forums to ..icir property; and states retained as the common defence. Which tragic confrontations between indi- the right to maintain militias com- mode of expression we are of vidual citizens and the police, find posed of these individually-armed opinion would harmonize much both sides arrayed behind differing citizens. While committed to both better with the first article than interpretations of the Second of these. rights, Americans clearly the form of expression used in Amendment. Citizens anxious to differentiated between the individ- the said seventeenth article. protect the individual's right to pos- ual right to possess arms anthe Thomas Jefferson did not even sess firearms stress the "right to communal resposibilities of state mention the militia in his initial bear arms" portion of the amend- militias. During the unrest in Bos- draft of a proposed constitution for ment. But those concerned with ton in 1769, for example, the author the State of Virginia. He did, howev- collective rights and commur .-1 re- of "A Journal of the Times" at- er, oppose standing armies except sponsibilities emphasize the "well tacked the "licentious and outra- in time of actual war. Then, in a regulated Militia" phrase in their geous behavior" of the British mili- separate phrase, he wrote. "No free- attempt to gain restrictive gun legis- tary in the city and then exclaimed. man shall ever be debarred the use lation. Each group rests its case "It is a natural right which the peo- of arms." In sue:ceding drafts he upon an appeal to history. In fact, ple have reserved to themselves, amended this statement to read: quite frequently both sides draw confirmed by t'(English] Bill of "No freeman shall be debarred the upon the same historical data to Rights, to keep arms for their own use of arms within his own lands or support opposing views. defence; and as Mr. Blackstone ob- tenements." Clearly, Jefferson be- Unfortunately, in their efforts to serves, it is to be made use of when lieved that the possession of arms promote disparate views, these po- the sanctions of society and law are could be entirely unrelated to ser- lemicists have-obscured the histori- found insufficient to restrain the vice in the militia. During the de- cal context within which the Sec- violence of oppression." bate over ratification of the United ond Amendment originated. To That American citizens firinb be- States Constitution in 1788, Samuel grasp the meaning of the Amend- lieved in the right of the private Ada' s offereri an amendment in his ment, as well as the beliefs of its citizen to be armed in his own state's convention that read: "And authors, it is necessary to under- defense became quite clear in peti- that the said Constitution be never stand the intellectual environment tions to the Massachusetts legisla- construed to authorize Congress to of late eighteenth-century America. ture resulting from the Massachu- infringe the just liberty of the press Attitudes toward an armed citizen- setts Declaration of Rights of 1780. ... or to preventthe people of the ry in that time were rooted in an That document claimed that the United States who are peaceable American perception of republican- people had a "right of enjoying and citizens from keeping their own ism which drew primarily upon En- defending their lives and liberties" arms." glish models. This belief system (Article I) and "to keep and to bear When James Madison and his col- joined the twin themes of personal arms for the common defence." leagues wrote the Bill of Rights right and communal responsibility. (Article XVII). This wording caused they did so at a time when Ameri- In .1, the collective right to bear a number of towns to demand more cans felt strongly about protecting arms was not opposed to that of the precise language regarding the right individual rights from a potentially individual, but included it; indeed, it to bear arms. The citizens of North- dangerous central government. In was deduced from it. It is this inte- ampton, for example, resolved: fact, Madison suggested these pro- gration of the individual and the We also judge that the people's visions be inserted directly into the community that has escaped mod- right to keep and bear arms, de- body of the Constitution in Article I, ern antagonists but that is so essen- clared in the seventeenth article section nine, between clauses three tial to understanding the Second of the same declaration is not and four. He did not separate the Amendment and the role of the expressed with that ample and right to bear arms from the others armed citizen in the early republic. manly openness and attitude designed to protect the individual; Regarding the place of arms with- which the importance of the right he did not suggest placing itin

18 22 this Constitution Madison and his colleagues intended the right, to bear arms, like that of free speechor afree press, to be a guarantee for every individual citizen whether or not he served as part of the militia. I

section eight, clauses fifteen and Jones, believed the proposed arti- guarantee for every individual citi- sixteen, which dealtspecifically cles "are calculated to secure thezen whether or not he served as with arming and organizing the mi- personal rights of the people so far part of the militia. litia. When he prepared notes for an as declarations on paper can effect While late eighteenth and early address supporting the. amend- the purpose." Tench Coxe, writing nineteenth-century Americans dis- ments, Madison reminded himself: as "A Pennsylvanian," discussed in- tinguished between the individual's "They relate first to private rights." dividual guarantees and then, in ref- right topossessarms and the need And when he consulted with Ed- erence to the Second Amendment, for a militia in which tobearthem, mund Pendleton, he emphasized maintained that "the people are more often than not they consid- that "amendments may be em- confirmed by the next article in ered these rights inseparable. They ployed to quiet the fears of many by their right to keep and bear their thoroughly integrated the individ- supplying those further guards for private arms." Clearly, then, Madi- ual and the community. Observa- private rights." son and his colleagues intended the tions by Madison, Yale University Others assumed this same right to bear arms, like that of free president Timothy Dwight, and Su- stance. Madison's confidant, Joseph speech or a free press, to be a preme Court Justice Joseph Story

A minute man preparing for war. Library of Congress.

this Constitution 23 19 provide excellent insight into why it a strong disposition, from a sense gone great transformations. As a was so natural to combine these of its burthens, to be rid of all consequence the number of people two rights into a single amendment. regulations." Then Story expressed enjoying expanded civic rights and Madison observed, of the op- his central concern: "How it is prac- responsibilities, including the own- pressed Europeans, that "it is not ticableto keep the people duly ership of firearms, which Jefferson certain that with this aid alone [pos- armed without some organization, and others felt should be restricted session of arms], they would not be it is difficult to sec." to "freemen," has vastly increased. able to shake of their yokes." Such observations divulge a fas- This created no problem for jurists Something beyond individual pos. cinating relationship between the throughout the nineteenth century: session of weapons was necessary: armed citizen and the militia. Clear- leading constitutional scholars "But were the people to possess the ly, these men believed that the per- firmly upheld the individual's right additional advantages of local gov- petuation of a republican spirit and to possess private arms. Writing in ernments chosen by themselves, character within their society de- 1829, William Rawle exclaimed: who could collect the national will, pended upon the freeman's posses- "The corollary, from the first posi- and direct the national force; and of sion of arms as well as his ability tion, is, that the right of the people officers appointed out of the militia, and willingness to defend both him- to keep and bear arms shall not be by these governments and attached self and his society. This constitut- infringed. The prohibition is gener- both to them and to the militia, it ed the bedrock, the "palladium," of al. No clause in the Constitution may be affirmed with the greatest republican liberty. However, the mi- could uy any rule of construction assurance, that the throne of every litia remained equally important to be conceived to give to Congress a tyranny in Europe would be speedi- them, because militia laws insured power to disarm the people." Fifty ly overturned, in spite of the legions that American citizens would re- years later Thomas M. Cooley ob- which surround it." Writing early in main armed, and consequently reserved: "It may be supposed from the nineteenth century, Dwight cel- tain their vigorous republican char- the phraseology of this provision ebrated the right of individuals to acter. that the right to keep and bear arms possess arms as the hallmark of a Beyond that, the militia provided was only guaranteed to the militia; democratic society. Then, he con- the vehicle whereby the collective but this would be an interpretation cluded: "The difficulty here has force of individually-armed citizens not warranted by the intent.... The been to persuade the citizens to might become most effectively meaning of the provision undoubt- ep arms, not to prevent them manifest. By consolidating the pow- edly is, that the people, from whom from being employed for violent er of individual Americans, the mili- the militia must be taken, shall have purposes." tia forced those in power to respect the right to keep and bear arms, and This same lament coursed the liberties of the people and mini- they need no permission or regula- through the observation of Story, mized the need for professional ar- tion of law for the purpose." whose Commentaries on the Con- mies, the greatest danger a republi- Today, however, there is no such stitution of the United States in can society could face. This beliefunanimity. Indeed, a great many 1833 summed up the relationship lay behind Jefferson's oft-quoted people question the relevancy of between armed citizens and the mi- statement: "What country can pre- the armed citizen to late twentieth- litia as clearly as it was ever stated. serve it's [sic] liberties if their rul- century life. This is a question that In his discussion of the Second ers are not warned from time to the American peoplethrough the Amendment, Story claimed that the time that their people preserve the Supreme Court, their state legisla- "right of the citizens to keep and spirit of resistance. Let them take tures, and Congresswill have to bear arms has justly been consid- arms." Thus the armed citizen and decide. ered, as the palladium of the liber- the militia existed as distinct, yet ties of a republic." And yet, even dynamically interrelated elements "though this truth would seem so within American thought; it was Robert E. Shalhope is professor of his- clear, and the importance of a well perfectly reasonable to provide for tory at the University of Oklahoma; he is regulated militia would seem so un- both within the same amendment author of "The Ideological Origins of the deniable,it cannot be disguised, to the Constitution. Second Amendment." published inthe that among the American people Journal of American Historyand of "The In the nearly two hundred years Armed Citizen in the Early Republic." there is a growing indifference to since the ratification of the Bill of Law and Contemporary l'roblems,winter any system of militia discipline, and Rights, American society has under- 1986.

20 24 this Constitution The Founding Fathers and the Right to Bear Arms: A Well-Regulated Militia by LAWRENCE DELBERT CRESS

Good governments, wrote Nic- context out of which the Second right, even a responsibility, to de- colo Machiavelli in the six- Amendment grew supports that fend the legally constituted author- teenth century, relied for their conclusion. During the turbulent ity vested in the "state." The vehicle security on the militialand own- decades of the 176Cs and 1770s, for doing both was the militia. ing, voting civilians trained in American colonists turned to the Delaware, Maryland, and North peacetime to meet the demands of militiaas had Machiavelli and a Carolina adopted similar declara- war. Professional soldiers, lacking a host of seventeenth- and eigh- tions during the first year of inde- commitment to the common good, teenth-century republicantheo- pendence, the first two states by easily became the agents of ambi- riststo guarantee liberties against borrowing language from Virginia's tious and self interested politicians. the abuses of George III and Parlia- article13 and the last following Freedom coexisted with military ment. In the winter and spring of Pennsylvania's lead by declaring might only where those with a 1774-1775, colonists gathered at that "the people have a right to bear stake in society accepted military county assemblies and provincial arms, for the defence of the State." service as a responsibility of citi- conventions to condemn the return Vermont, though not formally a zenship. Some 250 years later, the of British soldiers to Boston and to state until 1792, quoted Pennsylva- people of the United Scates incor- resolvein language that foreshad- nia's article 13 in its 1777 declara- porated the essence of the great owed the Second Amendment tion of rights. During the same year, Florentine's ideas into the language "that a well-regulated Militia, com- New York proclaimed in the body of the Second Amendment: "A well posed of the gentlemen, freehold- of its constitution the armed mili- regulated Militia, being necessary ers, and other freemen, is the natu- tia's importance to the success of to the security of a free State, the ral strength and only stable security republican government. In Massa- right of the people to keep and bear of a free Government." At the same chusetts, John Adams drafted the Arms, shall not be infringed." time, the Continental Congress bill of rights that was ratified with An understanding of the Second urged provincial assemblies to "dis- the 1780 constitution. "The people," Amendment begins with the recog- arm all such as will not defend the he wrote, "have a right to keep and nition that America's revolutionary American rights by arms." bear arms for the common de- generationintellectual heirs of The new state constitutions writ- fence." New Hampshire's 1783 bill Machiavelliconsidered bearing ten as royal authority crumbled in of rights made the same point, de- arms a collective rather than an the colonies also identified the mili- claring "A well regulated militia is individual right. A free people had tia as essential for the preservation the proper, natural, and sure de- the right to maintain a militia, but of liberty. Virginia's declaration of fence of a state." no individual had an inherent right rightsadopted almost a month be- The same issues carried over into to arm himself for his personal pro- fore the American colonies official- the debate about the new federal tection. In the hands of individuals, ly announced their independence Constitution. Mason's efforts to arms produced turmoil, chaos, even set the pattern. Article 13, drafted a..:end the Constitution provides a anarchy. A disciplined militia, com- by George Mason and approved by convenient summary of the senti- posed of enfranchised property a committee that included James ment that led to the drafting of the owners committed to the common Madison, declared "That a well-reg- Second Amendment. Mason, having good, guaraiteed liberty and en- ulated Militia, composed of the failed to persuade the Constitution- sured freedom. It deterred foreign body of the people, trained to arms, al Convention to adopt a separate aggressors, preserved domestic or- is the proper, natural, and safe de- bill of rights, sought to include a der, and resisted ambitious rulers. fence of a free State." Two months statement of the militia's impor- A vital militia also eliminated the later, Pennsylvania declared that tance to a free society in the body need for a potentially oppressive "the people have a right to bear of the Constitution. He urged that prefssional army. Like universal arms for the defence of themselves the congressional power to arm, manhood suffrage, the right of the and the state." The language was organize, and discipline the militia individual to arm had few advo- slightly different, but the meaning be prefaced by a clause identifying cates in late eighteenth-century was the same. The body politic, that prerogative as intended to se- America. The Second Amendment "the people," had the right to pro- cure "the liberties of the people ... vamnteed caly that the militia not tect itself if constituted authority against the danger of standing ar- be disPirmed. failed to serve the common good. mies in time of peace." Madison, The historian and constitutional At the same time, free men had a who would later draft the Second this Constitution 21 An understanding of the Second Arne dment begins with recogniCol- that America's revolutionary generation . considered bearing arms a collective rather than an iweividual right.

Amendment, supported the mea mit." A separate amendment urged the committee's recommendations. sure, but the convention rejected "that any person religiously scrupu- The doubts that were raised fo- the proposal. Mason subsequently lous of bearhig arms ought to be cused on guaranteeing the militia's declined to endorse the Constitu- exempted, upon payment of an place under the new constitutional tion. Later, on the eve of Virginia's equivalent to employ another to order. Elbridge Gerry noting that ratify:ation convention, he joined bear arms in his stead." At no time ambitious governments always other Anti-Federalists in an effort to did anyone express concern about sought to "destroy the militia," rec- graft the essence of the Common- the right of individuals to arm them- ommended rephr sing the proposal wealth's article 13 to the new Con- selves for private purposes. to make it "the duty of the Govern- stitution. Declaring that the "people Madison had Virginia's recom- ment to provide ... a well regulated have a Right to keep & bear Arms," mendations in mind when, on June militia, trained to arms." Other con- the proposed amendment called "a 8, 1789, he proposed to .....ongress gressmen expressed reservations well regulated Militia the proper that the Constitution be amended about the amendment's failure to natural and safe Defence c' a free to provide that "The right of the link freedom of conscience to the State." Mason said nothing about people to keep and bear arms shall obligation to find a substitute or to the Constitution's failure to guaran- not be infringed; a well armed and pay "equivalent." Before sending tee the right of individuals to arm. well regulated militia being the best the amendment on to the Senate, For him, the issue was an armed security of a free country; but no the House of Representatives came militia. "Why," he asked during his person religiously scrupulous of within two votes of striking the state'sratificationconvention, bearing arms should be compelled conscientious objection clause. "should we not provide against the to render military service in per- Little is known about the Sen- danger of having our militia, our son." Reactine, to the widely held ate's deliberations. It struck the real and natural strength, de- fear that Congress' access to the controversial conscientious objec- stroyed?" militia might be misused, the Virgin- tion clause, probably for the same The amendments proposed by ia representative proposed that the reasons mentioned in the House. It state ratifying conventions also re- amendment be placed alongside the also rejected as redundant a pro- flect a determination to incorporate other limitations on legislative pow- posal to insert "for the common into the new Constitution many of er listed in Article 1, Section 9, of defence" after "to bear arms." Fi- the principles alrer.dy embodied in the Constitution. nally, the Senate accepted an existing declarations of rights. Vir- Six weeks later, a committee of amendment to describe the militia ginia's proposed amendments, eleven, including Madison, recom- as "necessary to," rather than the which most directly influenced mended a more explicit statement "best" form of, national defense. Madison's draft of the Bill of Rights, of the armed citizenry's importance This language more accurately ex- are illustrative. Declaring that "the to the constitutional order: "A well pressed the growing sentiment that people have a right to keep and regulated militia, composed of the regular soldiers also had an impor- bear arms," Virginians asked for body of the people being the best tant role to play in the defense of constitutional recognition of the security of a free state, the right of the republic, especially during war- principle that "a well regulated mili- the people to keep and bear arms time. tia, composed of the body of the shall not be infringed." The provi- The House and Senate approved people trained to arms, is the prop- sion for conscientious objection the new language during the last er, natural and safe defence of awas rephrased to read "no person week of September 1789. Unfortu- free state." That proposition ad- religiously scrupulous shall be com- nately, we know little about the dressed the fear that the new gov- pelled to bear arms." Notice that Second Amendment's reception in ernment might disarm the citizenry the amendment's authors used the the states. No state rejected the while raising an oppressive profes-term "people" t,-.) describe the col- amendment. As a statement of re- sional army. To reinforce the point, lective right of citizens to provide publican principle already com- the convention urged that the Con- for their common defense. On mat- monplace in many state declara- stitution declare that standing ar- ters concerning individual rights tions of r., its, it pi obably evoked mies "are dangerous to liberty, and in this case the free exercise of little discussion. therefore ought to be avoided, asconsciencethe framers of the Bill Whatever the issue, when Vir- far as the circumstances and proof Rights used the term "person." ginia ratified the Second Amend- tection of the community will ad- Congress reacted favorably to ment on December 15, 1791, 'A well

26 this Constitution officer,rc sword anS slioulberbelt plate

regulated Militia, being 'necessary to the security of a free State, the right of the people to keep and bear Arms, shall Lot be infringed" became part of the Constitution. The notion that republicanism depended on a vital militia had become part of the nation's higher law. officea epaulet Henceforth, Congress was prohibit- wornonfy oat* ed from taking any action that shoulder might disarm or otherwise render the militia less effective. The Sec- ond Amendment, then, stated a basic principle of American republicanism: The body politic's ability to defend the liberties of the people and the constitutional foundations of the state against an ambitious tyrant's professional army or a ma- nipulative demagogue's armed mob could not be infringed. For the past two hundred years, American legal and constitutional opinion has seldom wavered from this interpretation of the Second Amendment. Supreme Court Jus- tice Joseph Story, the early nine- `DeCompa teenth century's foremost constitu- ,14L,Ar tional commentator, believed that ArawyorWar of 1812 conclusion. The opinion handed Right to Bear Arms,"Journal of American (1982) and is currently writing a book down by the New Jersey Supreme History 71 (1984), pp. 22-24. about the relationship between citizen- Court in Burton v. Sills (1968) is Stephen P. Halbrook, That Every Man Be ship and military service. this Constitution 27 23 DOCUMENTS The Case of the Century: Brown v. Board of Education of Tbi Aka by HUGH W. SPEER

After the Civil War, Congress proposed three perior, dominant, ruling class of citizens. amendments to the Constitution which were There is no caste here. Our Constitution duly ratified by the states as a condition of re- is color-blind, and neither knows nor tol- establishing representation in Congress. erates classes among citizens. In respect The Thirteenth Amendment abolished slavery of civil rights, all citizens are equal before and the Fifteenth guaranteed the right to vote to the law. The humblest is the peer of the black males. The Fourteenth Amendment had most powerful. The law regards man as more comprehensive goals: man, and takes no account of kis sur- roundings or of his color when his civil No state shall make or enforce a law rights as guaranteed by the supreme law which shall abridge the privileges or im- of the land are involved It is, therefore, to munities of citizens of the United States be regretted that this high tribunal, the fi- nor shall any state deprive any person of nal expositor of the fundamental law of life, liberty or property without due proc- the land, has reached the conclusion that ess of law; nor deny any person within it is competent for a State to regulate the its jurisdiction equal protection of the enjoyment by citizens of thei.- civil rights laws. solely upon the basis of race. In my opinion, the judgment this day The Civil War Amendments were put to the test rendered will, in time, prove to be quite in 1896 in Plessy v. Ferguson. Plessy, a black man, as pernicious as the decision made by was arrested for trying to board a "white" north- this tribunal in the Dred Scott case. bound railroad coach in New Orleans; he appealed to the Supreme Court. In deciding against him, the Plessyv. Ferguson, 163 U.S. 537 (1896). Court established the "separate but equal" princi- Separate and Unequal for Fifty-Eight Years ple. Writing for the majority of the Court, Justice Henry B. Brown said: The "separate but equal" principle stood for fifty-eight years as state laws in the South required The object of the [Fourteenth] Amend- segregation in almost all areas of public accommo- ment wa3 undoubtedly to enforce the ab- dation and education. In few cases were the condi- solute equality of the two races before the tions "equal" as well as "separate." Between 1935 law, but in the nature of things it could and 1950 black plaintiffs took five university cases not have been intended to abolish distinc- to the U.S. Supreme Court and won them all, but tions based upon color, or to enforce so- only because the facilities were inferior, not be- cial, as distinguished from political cause they were "separate." equality, or a commingling of the two Thurgood Marshall, now a member of the Su- races upon terms unsatisfactory to ei- preme Court, argued four of these cases as chief ther.... counsel of the NAACP. In an interview in 1967, We consider the underlying fallacy of when he was solicitor general, Marshall recalled the plaintzff's argument to consist in the the circumstances that led to a suit against the assumption that the enforced separation University of Oklahoma: of the two races stamps the colored race with a badge of inferiority. If this be so, The regents required separate classes it is not by reason of anything found in for blacks. One day I had a call from Pres- the act, but solely because the colored race ident Cross saying, "Guess what hap- chooses to ,?ut that construction upon it. pened this morning. A black man insists Plessy v. Ferguson, 163 U.S. 537 (1896). on enrolling in marching band. How can we have a separate marching band for Justice John Marshall Harlan wrote a brilliant one man?" I replied: "Pretty good trick, d' sent to the Plessy decision. Harlan said, in part: isn't it?" Recorded interview by Dr. Hugh Speer with In view of the Constitution, in the eye churgood Marshall, Washington, D.C., April 3, of the law, there is in this country no su- 1967.

24 28 this Constitution SigNSERIMMEMNSMMIESSMUM1;$ tr'1

At the same institution a black student enrolled lar increase in budget. It was so obvious in the graduate school. Marshall remembered: to the Supreme Court that the decision was easy. They made him sit in an anteroom or at the back behind barricades made out of For a unanimous Court, Chief Justice Fred M. two-by-fours or ropes. The students tore Vinson wrote: out the two-by-fours and cut up the ropes into one inch pieces and gave them outas The University of Texas Law School souvenirs....Someone always joined possesses to a far greater degree those him at his "separate" table in the library qualities which are incapable of objective and cafeteria. measurement but which make for greatness in a law school. Such qualities, to When Oklahoma set up a separate but obviously name a few, include reputation of the fac- unequal law school for blacks, Marshall recollect- ed: ulty, experience of the administration, position and influence of the alumni, standing in the community, traditions I counted the law books in its library and prestige. It is dOicult to believe that and found that there were far more law one who had a free choice between these books in the penitentiary library. So I law schools would consider the question told the judge that the best way for a black close. to get a legal education in Oklahoma was Sweetly. Painter, 399 U.S. 629 (1950). to go to the penitentiary. He laughed. We had him. Brown v. Board of Education at Topeka Marshall recounted another story abouta Texas With these occasions, the Supreme Court had case: "whittled away" at the segregation issue and had almost concluded that "separate" could not possi- (In Texas] they tried setting up a one bly be "equal." The stage was .et for Brownv. horse law school in connection with Prai- Board of Education in U.S. District Court at Tope- rie View Institute, which specialized in ka in 1951. broom making, and changed the name to The Topeka case, along with appeals of similar Prairie View University without one dol- cases from South Carolina, Virginia, Delaware and

this Constitution 29 25 the District of Columbia, resulted in the landmark social relations. ... The moreheteroge- decision of 1954 declaring school segregation un- nous the group in which the children par- constitutional. Robert Carter, counsel for the ticipate, the better they can function in NAACP in New York, asked this author to conduct our multi-cultural society. ...If the col- a school survey, to help recruit expert witnesses in ored children are denied the experience in the social sciences and to give the first testimony. school of associating with white children Little tangible difference between white and black who make up about 90 percent of our na- schools emerged except in building and books. tional society, then their curriculum is The day before the trial, the lawyers and several being greatly curtailed. The Topeka cur- witnesses agreed to use the findings that suggested riculum or any curriculum cannot be that the buildings and books were inferior as a equal under segregation. strategy to divert the defense lawyer, which it did, Testimony of Dr. Hugh Speer, Brown v. Board but to put the emphasis On the social and psycho- of Education, Topeka, 98 f. Supp. 997, June logical damage of segregation per se, regardless of 21, 1951. whether or not the facilities were comparable. This strategy marked a distinct turning point in the his- The defense attorney argued that school integra- tory of segregation cases. None of the five univer- tion could present new problems: sity cases had argued that even equal separate facilities could be inadequate. Now assuming that we did not have Testimony in the Topeka case made a clear con- separate schools and the children were all nection between segregation and deprivation in the together, and you still had a social situa- curriculum: tion in this community which did not recognize commingling of the races, "Curriculum," means the total school didn't admit them on free equa- experience of the child. ... Educationis lity. . .wouldn't that make more of a tem- more than just remembering something. pest, more of an emotional strain or psy- It is concerned with the child's total devel- chological impact if he got used to going opment, his personality, his personal and to school with white children, then went " p 2.142,

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ore 411E31Jas.

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CV,

26 30 this Constitution velopment of Negro children and to de- is still at large. prive them of some of the benefits they We have the uncontradicted testimony would receive in a racially integrated of expert witnesses that segregation is school system. hurtful, and in their opinion hurtful to Brown v. Board of Education, Topeka, 98 f. the children of both races, both colored Supp. 797 (1951). and white. These witnesses severally described themselves as professors, asso- Before the Supreme Court ciate professors, assistant professors and one describes herself as a lecturer and ad- The case moved rapidly on appeal heard by the viser on curricula. I am not sure exactly Supreme Court beginning on December 9, 1952, in what that means. combination with four related cases. Under Chief I do not impugn the sincerity of these Justice Fred Vinson, the Court first asked in 1952 learned gentlemen and lady. I am quite for a study of the intent of Congress in submitting sure that they believe that they are ex- the Fourteenth Amendment and the understanding pressing valid opinions on their subject. of the states which ratified it, but the evidence But there are two things notable about available did not provide a clear answer. The deci- them. Not a one of them is under any offi- sion could not be made in the context of 1868. Vin- cial duty in the premises whatever; not a son died and President Eisenhower appointed Earl one of them has had to consider welfare of Warren, ex-governor of California, as Chief Justice. the people for whom they are legislating The Warren court took a liberal turn. The new or whose rights they were called on to ad- Chief Justice swept aside the historical and legalis- judicate. And only one of them professes tic approach established under Vinson, saying: to have the slightest knowledge of conditions in the states where separate schools In approaching this problem we cannot are now being maintained. Only one of turn the clock back to 1868 when the them professes any knowledge of the con- amendment was adopted nor to 1896 ditions within the seventeen segregating when Plessy v. Ferguson was written. We states. must consider public education in the full .. .I am tempted to digress with the light of its full development and its pre- professors because I am discussing the sent place in American life throughout the weight and pith of this testimony, which nation. is the reliance of the plaintiffs here to Brown v. Board of Education of Topeka, 347 turn back this enormous weight of legisla- U.S. 483 (1954). tive and judicial precedent on this subject. I may have been unfortunate, or I The final arguments before the Supreme Court may have been careless, but it seems to came from two sharply different personalities. The me that much of that which is handed segregationist cause was argued by John W. Davis, around under the name of social science head of one of the largest and most prestigious is an effort on the part of the scientist to law firms in New York. Eighty at the time of the rationalize his own preconceptions. They trial, he had been a congressman, solicitor general, find usually, in my limited observation, ambassador to Great Britain, and the Democratic what they go out to find. candidate for president in 1924. Thurgood Mar- I ran across a sentence the other day shall, chief counsel of the NAACP, and grandson of which somebody said who was equally as a slave, spoke for the integrationists. The following expert of Dr. Krech in the "lingo" of the excerpt comes from Briggs v. Elliott, one of the craft. He described much of the social sci- cases decided under the general heading of Brown. ence as 'fragmentary expertise based on an examined presupposition." Mr. Davis: May it please the court, it is All that the Negroes want in this is a a little late. . .after this question has been matter of prestige. presumed to be settled for ninety years it is a little late to argue that the question Mr. Marshall: May it please the court,

3 2 28 this Constitution velopment of Negro children and to de- is still at large. prive them of some of the benefits they We have the uncontradicted testimony would receive in a racially integrated of expert witnesses that segregation is school system. hurtful, and in their opinion hurtful to Brown v. Board of Education, Topeka, 98 f. the children of both races, both colored Supp. 797 (1951). and white. These witnesses severally described themselves as professors, asso- Before the Supreme Court ciate professors, assistant professors and one describes herself as a lecturer and ad- The case moved rapidly on appeal heard by the viser on curricula. I am not sure exactly Supreme Court beginning on December 9, 1952, in what that means. combination with four related cases. Under Chief I do not impugn the sincerity of these Justice Fred Vinson, the Court first asked in 1952 learned gentlemen and lady. I am quite for a study of the intent of Congress in submitting sure that they believe that they are ex- the Fourteenth Amendment and the understanding pressing valid opinions on their subject. of the states which ratified it, but the evidence But there are two things notable about available did not provide a clear answer. The deci- them. Not a one of them is under any offi- sion could not be made in the context of 1868. Vin- cial duty in the premises whatever; not a son died and President Eisenhower appointed Earl one of them has had to consider welfare of Warren, ex-governor of California, as Chief Justice. the people for whom they are legislating The Warren court took a liberal turn. The new or whose rights they were called on to ad- Chief Justice swept aside the historical and legalis- judicate. And only one of them professes tic approach established under Vinson, saying: to have the slightest knowledge of conditions in the states where separate schools In approaching this problem we cannot are now being maintained. Only one of turn the clock back to 1868 when the them professes any knowledge of the con- amendment was adopted nor to 1896 ditions within the seventeen segregating when Plessy v. Ferguson was written. We states. must consider public education in the full .. .I am tempted to digress with the light of its full development and its pre- professors because I am discussing the sent place in American life throughout the weight and pith of this testimony, which nation. is the reliance of the plaintiffs here to Brown v. Board of Education of Topeka, 347 turn back this enormous weight of legisla- U.S. 483 (1954). tive and judicial precedent on this subject. I may have been unfortunate, or I The final arguments before the Supreme Court may have been careless, but it seems to came from two sharply different personalities. The me that much of that which is handed segregationist cause was argued by John W. Davis, around under the name of social science head of one of the largest and most prestigious is an effort on the part of the scientist to law firms in New York. Eighty at the time of the rationalize his own preconceptions. They trial, he had been a congressman, solicitor general, find usually, in my limited observation, ambassador to Great Britain, and the Democratic what they go out to find. candidate for president in 1924. Thurgood Mar- I ran across a sentence the other day shall, chief counsel of the NAACP, and grandson of which somebody said who was equally as a slave, spoke for the integrationists. The following expert of Dr. Krech in the "lingo" of the excerpt comes from Briggs v. Elliott, one of the craft. He described much of the social sci- cases decided under the general heading of Brown. ence as 'fragmentary expertise based on an examined presupposition." Mr. Davis: May it please the court, it is All that the Negroes want in this is a a little late. . .after this question has been matter of prestige. presumed to be settled for ninety years it is a little late to argue that the question Mr. Marshall: May it please the court,

3 2 28 this Constitution vetoDai13 Capita Edition. Me Nov/spew of Koons littlest limey taper Ottkial MU gime 3 Pages1'5 Cents

Ike Order Halts HearingSouth Quick to Protest On McCarthy WASHMetTON.ItIPIPress dent Lisernhowe Imposed a pars Mal blackout on adintntatrationCourt's School, Ruling testimony in the Army- McCar- thy row Monday. and senate an- vestlgetora temporarily broke oft the stoney hearing% to seek net!. Georgia s Governor to !Oration of thecover. The 4 -to-3 party line vote ro ey.spend the televisedhearings until Monday sits taken in the Fight for Segregation face Of Democratic nem:rigs that a postponement wouldbere- garded "as the first atop to a WASHINGTON.IUP)--Several Southern members posa.blo whitewash." Thy of Congress said Monday the Supreme Court's school charged the heannge may never s. segregation decunon actually will set back Negro edu- resonw. cation in the South. The Rept-Mama r-ajonts. how- Southern ser.ators expressed disappointment at the ever. oiled with Sen. Joseph R. court's declaration that school segregation is unconstitu- Strearthra angry chargethat tional. But they were restramed in their comments. the admil is:rat:on had dropped Nontern. F-istetn an; West. an "min curtain' between the ms ern member. of Corer's gener- * * * vest:gating subcommittee tad the a:1y epplauled the derision. htc:p* fact.McCarthy railed the Prra said It Is /0 eont denom in the , e Effect dent**order"tantastlealy fightagainst 11-3.1111 attemptto' I strange." depict the Untied States as 1 'Tinder the proredgre adopted herocrit- by the sobeensmitter. actlag Hersn Tr-nsee In At. eheirmen Kart E. Mundt M- lei:a 14.1 eed the emirsepinsi S. IIand sweat emnriel Key ton reduces the Cons:duilonto.On Topeka H. Simkins wilt seek modifies. -amereclan of Mr,- Keg of YJsessholset's dtreethe oediThe Supreme Court of the pledged the NU posse:sof his ofs.t. . declared before Meaday. Oreto present 0eorgia's seer,- 4.1' - Mundt fold reporters he'mil gain:le.a '"*.:thoutmime.") nronst.tutionean 1179 Kan- lee Attorney General Herb-st The Georgiareverser, who sas law a.lossing foraigtrge- Brownell Jr. today to discuss the Io the final sear of his teems lion of tippers andshilt trh order.Ile tall no would mike led off an embittered mactlogreentary etuderts in first elan no immediate effort In ovuort to the South'. sap- moo.the White How. B.e-. oration of the nees. ci:les, but at appeared that the tonrower probe:le wee.t1ea:Ian The ruling. he said. "blatantly 111Moilc ruling will have no if. logBrownell before renhine any de- tle nrylosto ignored all law and precedent and test era Topeka schools where a arson. ICTORS BATTLELawyer.who led the fight beforeusurped from the Congresa trioy 'nerd toend tegregaties ThePresident"clort....t.the t'. st. women.. (Wirt for abolition of segregation In pob-the people the power to amend has been underway since Sep- :he CMIIT:h011Vil and tom the ternber 1143.Sinutarmores lust before the nth ,"+" Ile school. congratulate one another as they lease the mut Salina and ow, Sen ktovoiy, nst coverer-lent Conereas the power to make the mints me afoot ka-tr.essea rte tell the P.a.Monday. They are. nett to right.Ite.rge C. Mash. Paws .1 of the land." ;AtchLson. I: committee anythir.g annul en-. Ingtos; Thurgeed Marsheti. hen lock. and James M. Nelsen. TsmIseKe catch a special Kate: The Supreme Courtruling fmence that took piece pur:y edJeltiOn etr11111,1101 Into -InlAlso me:threw loUS amend- in the exeruttse brar.ch. mediate semen to map ariv'linent to the 1519 law' allowing gram to insure continued and:Kann, City to segregate tigh This touchedaft themod KT1 H rt!grimiest meeting yet In the 0 permanent -egregetion."The:ed.nt eseentleir homing% It found - eadSees Mate hasa "standbv--amer.a.1 TabelolIerreet" teurettee.-- men: to be *cited on thisyear!along with the State st Kam. Democrats Plinio( Mrearlbe which wc-.01 earthe rubbc, .desegneleglb. prosidentiol ea., was defeedastisthe ofirretirebut taking an equal'e schools to heturned me: to poi.,edgiestsettee. Other- des . tleorsaso4 stsell.egahre Me quality Guaranteevale operation. fendaets before the Serve* . delay. The Supreme Coon. Inthattoed were %milli Caren's. Meenliewees dieorie 1.4 theThe end of segregation an pub- append en Pie Senatefloor bymost "vetoing action of itskind'Virgials.Driawere sad the not Insureavid Senator Porter of Topeka. sinesAbraham Lincoln. gmas.District if Cehwell effect of Tfervidtrig Army eosin. Ile Reboots win cipt.lonProclamation. ruled selJohn 0. Adamsfromtestify. education or opportunity, a lead.Sens tflIfeld...paolInteli. Epor.an- !Fruitythat serreratieri A t!a DtstretCourt had what Mr. Davis has just said about pres- of the black people, I think we must once tige is exactly right. again. emphasize that under our form, of So far as the appellants are concerned government, these individual rights of in this case, at this point it seems to me minority people are not to be left to even that the significant factor running the most mature judgment of the majority through all these arguments up to this of the people, and that the only testing point is that for some reason, which is ground as to whether or not individual still unexplained, Negroes are taken out of rights are concerned is in this court. the main stream of American life. Briggs v. Elliott, 345 U.S. 483 (1954). There is nothing involved in this case On May 17, 1954, the Chief Justice read the other than race and color, and I do not court's unanimous decision to an anxious nation, need to go to the background of the stat- quotim; in part from Judge Huxman's statement. In utes or anything else. I just read the stat- conclubion, Warren stated: utes, and they say, "white and colored." While we are talking about the feelings

this Constitution

BES1 COPY AVAILABLE 29 vmilliivit't ts.i.i.vitts1 1' mamsynet, :

In approaching these problems we can- Plessy v: Ferguson, this finding is amply not turn the clock back. supported by modern authority. Any lan- Today education is perhaps the most guage in Plessy v. Ferguson contrary to important function of state and local gov- this finding is rejected. ernments. Compulsory school attendance We conclude that in the field of public laws and the great expenditures for edu- education the doctrine of "Separate but cation both demonstrate our recognition Equal" has no place. Separate educational of the importance of education to our facilitites are inherently unequal. There- democratic society. It is required in the fore, we hold that the plaintiffs and others performance of our most basic public re- similarly situated for whom the actions sponsibilities, even service in the armed have been brought are, by reasons of the forces. It is the very foundation of good segregation complained of; deprived of the citizenship. Today it is a principal inequal protection of the laws guaranteed by strument in awakening the child to cul- the Fourteenth Amendment. tural values, in preparing him for later It is so ordered. professional training, and in helping him Brown v. Board of Education of Topeka, 347 to adjust normally to his environment. In U.S. 483 (1954). these days, it is doubtful that any child may reasonably be expected to succeed in In many parts of the country the reaction was life if he is denied the opportunity of an immediate and volatile. May 17 was named "Black education. Such an opportunity, where Monday," and a group of Southern political leaders the state has undertaken to provide it is a issued the "Southern Manifesto," with echoes of right which must be made available to all secession and state rights. on equal terms. In the concluding paragraph of his 1954 deci- We come then to the question presented: sion, the Chief Justice stated that remediesre- Does segregation of children in public quired further consideration and the Supreme schools solely on the basis of race, even Court would address them separately. though the physical facilities and other "tangible" factors may iv equal, deprive Brown II the children of the minority group of equal educational opportunities? We be- The arguments over remedies began on April 11, lieve that it does.... 1955, and the decision was handed down on May Whatever may have been the extent of 31, 1955. This case became known as Brown II. psychological knowledge at the time of (Another hearing to determine if the Topeka Board

30 34 this Constitution of Education had carried out the orders under Brown I and Brown II was held in October 1986, before the U.S. District Court in Topeka. This case is known as Brown III.) In the Brown II arguments, it was generally agreed that the order of Brown I should be carried out under the supervision of the U.S. District Courts. The main arguments centered around the issues of time, flexibility and degree of local option. The attorney general for Kansas said there would be no problem in complying by the following September. In Delaware, the situation was relatively simple because the state courts had already ordered the admission of blacks to the new high school as a "present and personal" right. However, the attorney generals from South Car- olina, Virginia and other southern states, appearing as friends of the court, argued for gradual approaches and a high degree of local participation and authority. The impo Lance of "community acceptance" was emphasized. The Virginia attorney argued that "the May 17 decree would have a United States proposed enforcement "as soon as crushing impact... on a way of life enshrined and feasible, allowing time for effective gradual adjust- institutionalized in hearts and minds... and deep ment and requiring a plan for starting within ninety seated devotions to the customs and traditions. days." Due to the concept of the right of the people to On May 31, 1955, Chief Justice Warren spoke for govern, to support or not support a system of pub-a unanimous court granting time for districts to lic education as they 'may choose...[there is] the come into compliance: bleak prospect of serious impairment or possible destruction of the public school system." North Full implementation of these constitu- Carolina counsel asserted that "only three of 165 tional principles may require solution of school superintendents of North Carolina believed varied local school problems. School au- that it would be possible to use Negro teachers in thorities have the primary responsibility mixed schools." A committee of superintendents for elucid -ding, assessing, and solving from Oklahoma advocated "a policy of gradual ad- these problems; courts will have to consid- justment." er whether the action of school authorities When Florida argued for time and local option, constitutes good faith implementation of Thurgood Marshall pointed out that it had taken the governing constitutional principles. five years after the Texas and Oklahoma law Because of their proximity to local condi- school decisions for Florida to open its law school tions and the possible need for further to blacks. Some cited the failure of national prohi- hearings, the courts which originally bition to claim that court-ordered segregation heard these cases can best perform this would fail; Marshall expressed shock that anybody judicial appraisal. Accordingly, we be- "classed the right to take a drink of whiskey...with lieve it appropriate to remand the cases to the right of a Negro child to participate in educa- those courts. tion" and argued for "uniform application of the ... At stake is the personal interest of Constitution and all its provisions throughout the the plaintiffs in admission to public country." schools as soon as practicable on a non- Marshall's first choice was for action "forth- discriminatory basis.... It should go with." His second and third choices were for Sep- without saying that the vitality of these tember 1, 1955, and September 1, 1956, respective- constitutional principles cannot be al- lynothing later. The Attorney General of the lowed to yield simply because of disagree-

this Constitution 35 31 ment with them. Marshall said the "all deliberate speed" phrase While giving weight to these public and had been used by Holmes and Frankfurter, then private considerations, the courts will re- added: quire that the defendants make a prompt and reasonable start toward full compli- The night after [Brown II J, I was back ance with our May 17, 1954, ruling. Once in my office with several friends and al such a start has been made, the courts secretary. . .who is very sharp. She went may find that additional time is neces- to Webster's dictionary and looked up the sary to carry out the ruling in an effective word "deliberate." It said "slow"all slow manner. The burden rests upon the defen- speed. How right that girl was! How right dants to establish that such time is neces- she was! sary in the public interest and is consis- Recorded Interview by Or. Hugh Speer with tent with good faith compliance at the Thurgood Marshall, Washington, O.C., April 3, earliest practicable date. 1967. .. .The cases are remanded to the Dis- trict Courts to take such proceedings and Three decades have brought both progress and enter such orders and decrees consistent disappointment. Discrimination no longer bears the with this opinion as are necessary and "sanction of law." But de facto segregation has dis- proper to admit to public schools on a ra- placed de jure segregation in some areas. The cially nondiscriminatory basis with all Brown decision abolished de jure segregation but deliberate speed the parties to these cases. it did not directly order integration. Congress fol- It is so ordered. lowed ten years later with the Civil Rights Act of Brown v. Board of Education of Topeka, 349 1964. The issue now is affirmative action; does a U.S. 294 (1955). "color blind" Constitution make affirmative action unconstitutional? There were conspicuous instances of protest. The eyes of the world are on America. In An Governor George Wallace stood in the door at the American Dilemma (1944), Gunnar Myrdal, the University of Alabama to block the entrance of thedistinguished Swedish social scientist said, "Ameri- first black student. President Eisenhower was ca is free to choose whether the Negro shall con- obliged to send the National Guard to Little Rock tinue to be her problem or become her opportuni- against the open defiance of Governor Faubus. Butty." His question remains pertinent. there were also many positive and successful efforts made in good faith. Such efforts were reinforced by the marches and non-violent movement Suggested additional reading: led by Dr. Martin Luther King and others. Albert P.Blaustein and Clarence C. Ferguson, Jr., Desegregation and the Law: The Meaning and Effect of the School Segregation Cases (1957). In Perspective Leon Friedman, ed., Argument: The Oral Argument Beibre the Supreme Court in Brown v. Board of Education of Topeka. During an interview in 1967, Thurgood Marshall 195241!(1)b3). Jack Greenberg and Herbert Hill, Citizen's Guide to was asked if the social science arguments were the Desegregation:Study of Social and Legal Change in new element that made the difference. He replied: American Life (1979). Richard Kluger, Simple Justice: The History of Brown v. Boa tyl No doubt about it in my book. In 1896 of Education and Black America's Struggle for Equality they argued that segregation did not hurt (1976). anybody. But now nobody dares argue that segregation is not harmful. The only Hugh W. Speer is Dean Emeritus of the School of Educa- way I can be sure my kid is getting an tion at the University of Missouri. He served as an expert equal education is for him to be in the witness in Brown at the trial in Topeka in 1951. A one- same classroom with the whites. It finally hour docu-drama, "The Case of the Century," has been comes out that "equal" means "equal." As produced by Johnson Country Community College, Over- land Park, Kansas 66210, based upon a script by Hugh Justice Frankfurter once said, `:Some- Speer. Video tapes and study guides are available from times English words mean English." the college.

32 3 6 this Constitution t For the Classroom

The Constitution:An EconomicFramework by Peter R. Senn andWilliam J. Stepien

This teaching activity is reprintedwith permission from the nomic Education. Subscriptions Senior Economist, rot.2. no 1. fall 1986, published by to theSenior Economistand additional teaching materials the Joint Council on Eco- Education, 2 Park Avenue, New York, are available from the Joint Councilon Economic N.Y. 10016. The lesson has beenedited for inclusion in this Constitution.

Introduci:ln .....

The following teachingsuggestions include a broad I range of economic ideas. First,we suggest that you review with your studentsseveral of the problem., which faced our nation under theArticles of Confederation including an economically weak central government anda large war debt. The secondactivity introduces students ?1 ' to the theory of mercantilismand how the ideas itrepre- ...... aft% sented were in contrastto the principles espoused by s Adam Smith in his famousbook Wealth of Nations. The fte`'lit students are invited A e 1\ to search the Constitution forexam- ples of the influence ofAdam Smith by looking for ideas related to free people andfree markets. The third ty suggests that students activi- work in pairs or trios anddraw a series of connected circleson newsprint which illustrate the "ripple effects" thatmight take place if the Constitution were writtendifferently. Finally, thestu- dents participate ina role play activity where they sider the economic impact con- of various pieces oflegisla- Display of the Werner Pharmaceutical tion. Company at the Centennial Exhibit, Philadelphia, .1876. Division of Political History, Smithsonian Institution, Washington, D.C.

Student Goals came the governing body. 1. Students recognize that the Explain the economicpowers of the Articles of Confedera- economic ideas of the Constitu-tion: tion developed from a specifichistorical setting by identifying some economic problems The Continental Congresscould establish a postalser- of the Revolutionary War, vice, regulate the currency, and such as war debts, and ofthe Articles of Confederation borrow money. such as the inability to regulate It could not regulate interstateor fox,2ign commerce, levy interstate commerce. taxes, or enforce its laws because 2. Students recognize thatthe Co:.stitution can be altered it contained no provi- to sion for an executiveor federal judiciary. meet the conditions Of the timesby giving examples of changes as with slavery. The end of the War forIndependence left Congress facing huge debts, both public and 3. Students show that theyunderstand the relationship be- private; depreciated paper tween the Constitution and money of uncertain value becauseseven states had also economics by identifying the issued their own currency; lost trade sections of the Constitution havingeconomic importance. including that of the 4. Students recognize the Mediterranean because of piracy andother economic economic impadf Of the Constitution problems which led to a by describing the possibleconsequences of changing it. post-war depression. 5. Students analyze The Treaty of Paris in 1783 ended proposed changes in laws bydescribing the war but not until the the trade-offs and opportunity Philadelphia Convention of 1787was a new Constitution writ- costs of the changes. ten. Teaching Activities Ask the students how the conditionsthat follow might have affected the economic life ofthe new states. I. Articles of Confederation In view of the war debt,how might the inability toregu- late interstate trade create economicproblems for the new nation? Remind the class that by thesummer of 1776 thirteen independent states had been created How might states issuing theirown currency confuse from the original British colo- matters? nies. Because they knew theywould have to unite to win the War of Independence, delegatesfrom these states met in the Continental Congress II. The Constitution- A Framework for Economic even though they were not sure of the Growth kind of union they wantedor needed. In 1777 the delegates adopted the Articles of Confederation. Explain to the class that British The articles created a looseunion of free and independent economic policies toward states called the United States of the colonies were guided bya set of ideas called mercantilism. America. The Articleswere The overall goal of mercantilism adopted by all the states in1781. The Continental Congress was to increase the power be-and wealth of England. Otheraims were to make the British this Constitution 37 33 empire self-sufficient and guarantee the profits of trade to the ey? (Article I, Section 10) English. The colonies were supposed to supply goods that En-14. Can you sue the government if you think it has done gland needed and provide markets for the goods England had something wrong? (Amendment 1) to sell. 15. Where does it say that property is protected by due proc- The policies of mercantilism included many kinds ofrestric- ess of law? (Amendment 5) tions on trade, subsidies for the production of certain kinds of16. Do you have to be a taxpayer in order to vote? (Amend- goods and the granting of various monopolies. Government ment 24) played a large and arbitrary role in the economy. 17. Who has the power to tax goods entering the United In 1776, Adam Smith published a book called Wealth of Na- States from other nations? (Article I, Section 8) tions. In it he showed how mercantilism gave special privileges to selected special groups, promoted monopoly and was III. What if ...? inefficient. Smith called for a more limited role of government so that markets and decisions made byindividuals could gen- Select one of the answers to the questions in Activity II and erate greater wealth and growth. The ideals of free menand ask the students to consider what would happen if the oppo- free markets appealed to the Founding Fathers. They embod- site of that statement became true. For example, ask the stu- Post ied many of them in the Constitution. dents to speculate on the economic impact of making the Ask the students to study the Constitution to find where Office into a private business, or what might happen if the each of the following topics is considered. (The teacher edi- United States government could not coin money. Ask the stu- of tions of most high school U.S. history texts haveannotated dents to discuss the changes that might occur in our way copies of the Constitution which will provide background for life. discussion. U.S. history and government textbooks usually Point out that in most instances these changes have an ef- have complete copies for students to examine.) Then have the fect on many segments of society. The change ripplesthrough- students explain how the Constitution's treatment of the topic out society creating numerous other changes whichinitiate is an example of the high value placed on a market economy even further change. and free people. This last step should be taken while consider- To illustrate this concept graphically, organize the students the ing the economic impact of the constitutional language exam- into pairs or triads. Give each a piece of newsprint. Ask in the ined. students to place a circle about the size of a half dollar middle of the newsprint. For example, inside the circle have the students write that the Post Office is now a privatebusi- 1. Where is the final decision on slavery found? (Amendment change that XIII) ness. Ask the groups to each come up with a 2. Where do bills for raising revenues originate? (Article I, might result from the Post: Office moving into the private sec- newsprint in Section 7) tor. Tell the groups to write this change on their 3. Who has the power to levy and collect taxes andduties? another circle near the circle in the center of the page. When (Article I, Section 8) they have completed that, connect the two circles with a 4. Who has the power to coin money and regulate itsvalue? straight line. (Article I, Section 8) Now have the students consider the change they have just 5. What branch of government regulates business? (ArticleI, written in the second circle. Considering just that mange, what further changes might happen in our way a life? Each Section 8) the 6. What branch of government has the power to makeand new change should be written in a circle clustered near the ratify treaties? (Article II, Section 2, and Article I) second circle and each change should be connected with 7. Where do you find whether or not states can tax items en- second circle by a straight line. tering from other states? (Article I, Section 9) Now direct the attention of the students to each of the new 8. Where does the Constitution explain whether one port can ,changes they have just written into circles on the page. Ask be given special preference over another? (Article I,Sec- the students to consider further changes which might result tion 9) from each of the last wave of changes. When they have com- 9. How do you know that the Post Office is not a private bus- pleted this operation, ask them to go back to the original iness? (Article I, Section 8) change in the middle of the page and have them consider an- 10. Where does the United States government get its power to other major change in our way of life which would result from build highways? (Article I, Section 8) the Post Office becoming a private business. This change 11. What section provides that our federal finances are a mat- should be described in a circle which is connected to the orig- ter of public knowledge? (Article I, Section9) inal circle in the middle of the page by a straight line. It be- 12. Who makes the rules about what goes on in territories or comes evident that when a change happensin our society, it other properties belonging to the United States? (Article causes secondary, tertiary and even moreremoved changes to IV, Section 3) occur. 13. What section prevents states from making their own mon- When the students have completed 10 or 15 minutes ofiden-

this Constitution 34 tifying changes, give each group an additional piece of news- each rate before moving on to the next bill. This provides new print and have them pick one of the items discussed in Activi- economic conditions for each of the pending bills. ty II and treat it as a "What if?" statement. For example, have them consider what might happen if the government could Bill #1. Subsidy for Grain Prices. confiscate property without due process of law? What if a person had to be a taxpayer or property owner in order to vote? Farm incomes have been declining and the market value of What if the executive branch of government could create taxes grain crops has been dropping. This bill would give farmers a without the cheek or balance of the legislative and judicial subsidy of Si per bushel on all grain products produced this branches? coming year. When the students have completed 20 minutes of work in Possible positive effects include increased farm outp..a, identifying changes, the groups should share their changes proved farm-related business, more grain exports, reduced with the class. Special attention should be given to positive consumers cost for food. Possible negative effects include an and negative results from the initial change. increased grain surplus, lower market price for farm goods, increased cost of government programs. IV. New Laws and the Economy: A Simulation Depending on the economy as a whole, these changes could occur. Action or inaction by Congress and President in passing (U) Unemployment stays the same or decreases slightly new legislation has numerous effects on the Amer'-", :collo- (G) Growth - declines slightly my. Three important areof our economic sysi he di- (I) Inflation - increases slightly rectly influenced by acts of Congress: inflation, tix Jyment, and growth. Even though the Constitution established an envi- Bill #2. Domestic Parts in United States Cars ronment for a free enterprise economy, the fact that the federal government participates in the economy makes it an imoor- Many cars in the United States are imported. This new law tant economic force. would require that 75 percent of all parts in cars sold in the 'Flu-ce bills are presented as examples. Assume that each losUnited States be produced domestically. been introduced in Congress. Ask the students to speculate ()I A pox ible positive effect is more jobs in autorelated Indus how each might affect unemployment, economic ;.(iwtli and tries. Possible negative effects are increased consumer prices inflation. After the class has speculated on the-, Impact of each for cars and fewer U.S. exports. bill, divide the class into two unequal groups, one having just slightly larger membership than the other. This simulates two Bill #3. Reduction of the Minimum Wage political parties with unequal power in one of the houses of Congress. I3usiness firms can maintain a dual minimum wage standard. Next establish special interest groups on either side of the Workers ender 21 can be paid $1 less an hour than workers aisle by further dividing, each group into subgroups of legisla over 21, even though both groups are doing the same type of tors representing manufnturers, agriculture, hawks, (loves, lib- work. erals, conservatives or (idior groups which might ham e conflict Possible positive effects are reduced cost of production and ing ideas about each piece of legislation. As each bill is an increased number of employed teens. Possible negative ef- introduced into Congress for debate, ask the students to ex fect includes more competition for jobs and increased unemr press their viewpoints, especially their economic viewpoints, ployment for sonic older workers. on each piece of legislation, keeping in mind that they repre- U - decreases; G - increases; I - decreases sent a particular philosophical position on each issue. For situ Several other bills might be introduced to the students in plicity's sake, assume that each bill can be passed by simple volving deftmse spending, welfare programs, space research or majority of students voting. any number of other areas. As the students ponder each piece With the teacher acting as President, each bill that is passed of legislation they should be made aware of the economic con- is placed on the President's desk for signature. The President ditions of the nation. At the completion of the activity the stu- has the option of signing the bill into law or returning the bill dents should discuss how the pressure of economic conditions to Congress through the veto process. Then the students can might have influenced the oting on each piece of legislation. attempt to override the veto by a 2/3 vote. Before discussion of each bill in class, establish current economic conditions for our country by writing information on Peter It. Senn is professor emeritus of economics and so- the chalkboard. Consider starting with 7 percent unemploy- cial science at Wilbur Wright College and is a field Rep- ment. The rate of inflation for the country might be 6 percent. resentative of the Illinois Council of Economic Education. Economic growth might be 3 percent. As each bill is passed, William J. Stepien is a history teacher and director of the defeated, or vetoed, discuss what effect that action might have merged library and computer center at the Illinois Mathe- on each of the three rates on the board. Increase or decrease matics and Science Academy.

"--IVItuflon 39 35 Presidential Appointmentsto the Supreme Court by WILLIAM H. REHNQUIST

Chief Justice William II. Rehnquist was a "Jurist in Residence"at the University of Minnesota Law School in October 1984; he delivered this address on October 19. Itwas, published originally in the summer 1985 issue of mentary, Constitutional Com- a faculty-edited publication of the University of Minnesota Law School. Weare grateful toConstitutional Com- mentaryand to Chief Justice Rehnquist for permission to reprint this speech.

One ofthe proud and just boasts of the constitutionalsys- uency. But the manifold provisions of the Constitution with tem of government that we have in the United States is which judges must deal are b nomeans crystal clear in their that even the President is not above the law. The justness of import, and reasonable minds may differas to which interpre- the boast is illustrated by decisions such as the Steel Seizure tation is proper. When a vacancy occurson the Court, it is en- Case, in which the Court rebuffed the claims of President Tru- tire4 appropriate that that vacancy be filled by thePresident, man, and the Nixon Tapes Case, in %..,,11 the Court rebuffed responsible to a national constituency, as advised by the Sen- the claims of President Nixon. But, though the President, the ate, whose members are responsible to regional constituen- head of the executive branch, may be subject underour sys- cies. Thus, public opinion has some sayin who shall become tem to checks and balances administered by the judicial Justices of the Supreme Court. branch of government, the courts themselves are subject to a The answer to the first question I posedhave Presidentsin different form of cheek and balance administered by the Presi- the past attempted to "pack" the Courtiseasy; the Presi- dent. Vacancies in the federal judiciary are filled by thePresi- dents who have been sensible of the broadpowers that they dent with the advice and consent of the United States Senate. have possessed, and been willing to exercise thosepowers, Just as the courts may have their innings with the President, have all but invariably tried to havesome influence oa the phi- the President comes to have his innings with thecourts. It losophy of the Court as a result of their appointmentsto that seems fitting, particularly in the year of a presidential election, body. This should come as a surprise tono one. to inquire what history shows as to the propensity of Presi- The answer to the second question that I posedhowsuc- dents to "pack" the Court, and the extent to which theyhave cessful have Presidents been in their efforts to pack the succeeded in any such effort. Courtis more problematical. I think hi; tory teachesus that I use the word "pack" as the best verb available, realizing those who have tried have been at least partially successful, full well that it has a highly pejorative connotation. But it but that a number of factors militate againsta President hav- ought not to have such a connotation when used in this con- ing 'Anything more than partial success. IVIiat thesefactors are text; the second edition of Webster's unabridged dictionary, I will try to illustrate with examples from the historyof the which happens to be the one I have in my study, defines the Court. verb "pack" as "to choose or arrange (a jury, committee, etc.) Very early in the history of the Court, Justice William Cush- in such a way as to secure some advantage, or to favor some ing, "a sturdy Federalist and follower of Marshall,"1 diedin particular side or interest." Thusa President w!to sets out to September 1810. His death reduced the seven-member Court "pack" the Court seeks to appoint people to the Court who to six, evenly divided between Federalist appointees and Re- are sympathetic to his political or philosophical principles. publican appointees. Shortly after Cushing 's death, Thomas There is no reason in the world why a President shouldnot Jefferson, two years out of office as President, wroteto his do this. One of the many marks of genius which our Constitu- former Secretary of the Treasury, Albert Gallatin, in theseun- tion bears is the fine balance struck in the establishment of seemingly gleeful words: the judicial branch, avoiding both subservience to thesuppos- edly more vigorous legislative and executive branches,on the one hand, and total institutional isolation from public opinion I observe old Cushing is dead. At length, then, on the other. The performance of the judicial branch of the we have a chance of getting a Republican ma- United States government for a period of nearly two hundred jority in the Supreme judiciary. For tenyears years has shown it to be remarkably independent of the oth. has that branch braved the spirit and will of the coordinate branches of that government. Yet the institution Nation.... The event is a fortunate one, andso has been constructed in such a way that the public will, in the timed as to be a godsend to me.2 person of the President of the thined Statesthe one official who is elected by the entire nationhave something tosay about the membership of the Court, and thereby indirectly Jefferson, of ceurse, had been succeeded by James Madison, about its decisions. who, though perhaps less ardently than Jefferson, alsochampi- Surely we would not want it any otherway. We want our oned Republican ideals. Jefferson wrote Madison that"it will federal courts, and particularly the Supreme Court of the Unit- be difficult to find a character of firmness enoughto preserve ed States, to be independent of popular opinion when deciding this independence on the same Bench with Marshall."3When the particular cases or controversies that :_;riie before them. he heard that Madison was considering Joseph Storyand Eze- The provision for tenure during good behavior and the prohibi- kiel Bacon, then Chairman of the Ways and Means Committee tion against diminution of compensation have proved more of the House of Representatives, he admonished Madisonthat than adequate to secure that sort of independence. The result "Story and Bacon are exactly the men who desertedus Ion the is that the Justices are responsible to no electorate or constit- Embargo Act). The former (is) unquestionablya tory, and both

31 4 0 this Constitution are too young."4 and the legal tenders. We cannot ask a man President Madison seems to have been "snake-bit" in his ef- what he will do, and if we should, and he fort to fill the Cushing vacancy. He first nominated his Attor- should answer us, we should 'espise him for it. ney General, Levi Lincoln, who insisted from the first that he Therefore, we must take a man whose opinions did not want the job; even after the Senate confirmed him he are known.5 still refused to serve. Madison then nominated a complete dark horse, one Alexander Wolcott, a political hack who was the Federal Revenue Collector of Connecticut. The Senate, In all, then, Lincoln had five appointments. How successful controlled by his party, rejected Wolcott by the mortifying was Lincoln at "packing" the Court with these appointments? vote of twenty-four-to-nine. Finally, in the midst of a cabinet The answer has to be, I believe, that he was very successful at crisis that occupied a good deal of this time, Madison nominat- first. In the all-important Prize Cases, decided in 1863, the ed Joseph Story for the Cushing vacancy, and the Senate con- three Lincoln appointees already on the CourtSwayne, firmed him as a matter of routine three days later. Miller, and Davisjoined with Justices Wayne and Grier of the Story, of course, fulfilled Jefferson's worst expectations old Court to make up the majority, while Chief Justice Taney about him. He became Chief Justice Marshall's principal ally and Justices Nelson, Cartron, and Clifford dissented. It seems on the great legal issues of the day in the Supreme Court, re- obvious that this case would r we been decided the other way peatedly casting his vote in favor of national power and had the same Justices been on the Court who had decided the against the restrictive interpretation of the Constitution urged Dred Scott case six years earlier. Charles Warren, in his The by Jefferson and his states'-rights school. And Joseph Story Supreme Court in United States History, describes these cas- served on the Supreme Court for thirty-four years, one of the es as being not only "the first cases arriving out of the Civil longest tenures of record. War to be decided by [the court], but they were far more mo- Presidents who wish to pack the Supreme Court, like mur- mentous in the issue involved than any other case; and their fi- der suspects in a detective novel, must have both motive and nal determination favorable to the government's contention opportunity. Here Madison had both, and yet he faged. He waswas almost a necessary factor in the suppression of the wart's probably a considerably less partisan Chief Executive than Jef- Immediately after the war, a host of new issues arose that ferson, and so his motivation was perhaps not strong enough. could nct readily have been foreseen at the time that Lincoln After having botched several opportunities, he finally prefer ed made his first appointments to the Supreme Court. The extent to nominate someone who would not precipitate another crisis to which military tribunals might displace civil courts during in his relations with the Senate, rather than insisting on a time of war or insurrection was decided by the Supreme Court nominee who had the right philosophical credentials. in 1866 in the famous case of Ex p2rte Milligan? While the The lesson, I suppose, that can be drawn from this incident Court was unanimous as to one aspect of this case, it divided is that while for Court-watchers the President's use of his ap- five-to-four on the equally important question of whether Con- pointment power to nominate people for vacancies on the Su- gress might provide for trial by military commissions during preme Court is the most important use he makes of the execu-time of insurrection even though the President alone could tive authority, for the President himself the filling of the not. On this point Justices Field and Davis, Lincoln appointees, Supreme Court vacancies is just one of many acts going on joined Justices Nelson, Grier, and Clifford of the old Court to under the "big top" of his administration. hold that neither Congress nor the President might do so, Abraham Lincoln had inveighed against the Supreme Court's while Chief Justice Chase and Justices Miller and Swayne (all 1857 decision in the Dred Scott case during his famous de- appointed by Lincoln) joined Justice Wayne of the old Court in bates with Stephen A. Douglas in 1858, when both sought to holding that Congress might establish such courts even though he elected United States Senator from Illinois. Lincoln lost that the President alone could not. election, but his successful presidential campaign two years During the post-war Reconstruction Era, three new amend- later was likewise marked by a restrained but nonetheless ments to the United States Constitution were promulgated, forceful attack on this decision and by implication on the and the construction of those amendments was also necessari- Court's apparent institutional bias in favor of slaveholders. ly on the agenda of the Supreme Court. The first important Within two months of his inauguration, by reason of the di._ 'h case involving the fourteenth amendment to come before the of one Justice and the resignation of two others, Lincoln was Court was that of the Slaughterhouse Cases, in which the ap- given three vacancies on the Supreme Court to fill. To fill plicability of the pros ..,ions of that amendment to claims not them Lincoln chose Noah Swayne of Ohio, David Davis of Illi- based on racial discrimination was taken up by the Court. Of nois, and Samuel F. Miller of Iowa. All were Republicans who the Lincoln appointees, Justice Miller wrote the majority opin- had rendered some help in getting Lincoln elected President in ion and was joined in it by Justice Davis, while Chief Justice 1860; indeed, Davis had been one of Lincoln's principal manag- Chase and Justices Field and Swayne were in dissent. ers at the Chicago convention of the Republican Party in that The ultimate irony in Lincoln's effort to pack the Court was year. the Court's first decision in the so-called Legal Tender Cases, In 1863, by reason of expansion in the membership of the Hepburn v. Grisivold.8 In 1870 the Court held, in an opinion Court, Lincoln was enabled to name still another Justice, and by Chief Justice Chase, who had been named Chief Justice by he chose Stephen J. Field of California, a War Democrat who Lincoln primarily for the purpose of upholding the greenback had been the chief justice of that state's supreme court In legislation, that this legislation was unconstitutional. Justice 1864, Chief Justice Roger B. Taney finally died at the age of 88, Field joined the opinion of the Chief Justice, while the other and Lincoln had an opportunity to choose a new Chief Justice. three Lincoln appointeesMiller, Swayne, and Davisdissent- At this time, in the fall of 1864, the constitutionality of the ed. Chief Justice Chase's vote in the Legal Tender Cases is a so-called "greenback legislation" that the government had textbook example of the proposition that one may look at a le- used to finance the war effort was headed for a Court test, and gal question differently as a judge than one did as a member of Lincoln was very much aware of this fact. He decided t'ap- the executive branch. There is no reason to believe that Chase point his Secretary of the Treasury, Salmon P. Chase, who was thought he was acting unconstitutionally when he helped draft in many respects the architect of the greenback legislation, and shepherd through Congress the greenback legislation, and saying to a confidant that it may well hF that if Lincoln had actually posed the question to him before nominating him as Chief Justice, Chase would have agreed that the measures were constitutional. But admin- [Is]e wish for a Chief Justice who will sustain istrators in charge of a program, even if they are lawyers, sim- what has been done in regard to emancipation ply do not ponder these questions in the depth that judges do,

this Constitution 1 37 and Chase's vote in the Legal Tender Cases is proof ofthis fore the old Court. When Roosevelt in 1941 appointed Harlan fact. F. Stone to succeed Charles Evan Hughesas Chief Justice, the In assessing Lincoln's success in his effort to pack the periodical United States News commented that "thenew head Court, it seems that with regard to the problems heforesaw atof the Court will also find no sharp divergence of opinion the time of his first appointmentsthe difficulties that the Su- among his colleagues." The Washington Post echoed the preme Court might put in the way of successfully fighting the same sentiment when it foresaw "for years to come" a "virtualuna- Civil WarLincoln was preeminently successful in hisefforts. nimity on the tribunal."9 But with respect to issues that arose after the warthe use of These forecasts proved to be entirely accurate in thearea of military courts, the constitutionality of the greenbacklegisla- economic and social legislation. But other issues began tion, and the construction of the fourteenth amendmenthis to per- colate up through the judicial coffee pot, as they havea habit appointees disagreed with one another regularly. Perhapsthe of doing. The Second World War, which occupied the United lesson to be drawn from these examples is that judgesmay States from 1941 until 1945, producednumerous lawsuits think very much alike with respect toone issue, but quite dif- about civil liberties. During the war, the Court maintaineda ferently from one another with respect to other issues. And fair degree of cohesion in deciding most of thesecases, but while both Presidents and judicial nomineesmay know the quite suddenly after the war, the predicted "virtual unanimity" cunt it constitutional issues of importance, neither of them is was rent asunder in rancorous squabbling, the like of which usually vouchsafed the foresight to see what thegreat issues the Court had seldom seen before. of ten or fifteen years hence are to be. Some, but only some, of the differences were of judicial phi- Probably the most obvious laboratory test forsuccess in losophy. Understandably, seven Justices who agreedas to the packing the Court is the experience of President Franklin D. appropriate constitutional analysis to apply to economic and Roosevelt with his judicial appointments. Franklin Roosevelt social legislation might not agree with one another incases in- had both motive and opportunity in abundance. Hewas elect- volving civil liberties. These differences manifested themselves ed President in 1932, and his first term in officewas notable infrequently during the war years but came into full bloom for the enactment of many important social and economicreg- shortly afterwards. In a case called Saia v. New York,10 the ulatory measures. But it seemed during these fouryears that Court held by a vote of five-to-four thata local ordinance of no sooner were these New Deal measures signed into law by the city of Lockport, New York, regulating theuse of sound the President than they were invalidated by the Supreme trucks in city parks, was unconstitutional. Four of the five Jus- Court. That Court, referred to in those daysas the "Nine Old tices in the majority were appointees of Franklin Roosevelt, Men," had on it Justices appointed by PresidentsTaft, Wilson, but so were three of the four Justices in the minority. Seven Harding, Coolidge, and Hoover. Though the outcomes in it.any months later the Court all but overruled the Saiacase in Ko- cases were close, during Roosevelt's first term the Court vacs v. Cooper," with one of the Saia majority defecting to struck down such important pieces of New Deal legislationas join the four dissenters for the Kovacs majority. Thesetwo the NRA and the AAA. cases provide but one of abundant examples of similar epi- In November 1936, President Rooseveltwon a landslide re- sodes in the Court's adjudication during the period from 1945 election victory, with his Republican opponent carrying only to 1949. the states of Maine and Vermont. Frustrated during his first In 1949, two events of rather dramatic importance for Court- term by the lack of any vacancies on the Supreme Court, Roo- watchers, if not for the public at large, occurred withina few sevelt disdained to wait longer for vacancies and ineffect took months of each other. In July of thatyear, Justice Frank Mur- the bull by the horns. In his famous "Court-packing plan"pro- phy died at the age of 59, after naving servedon the Court for posed in February 1937, he sought authority from Congress to ten years. In September, Justice Wiley Rutledge died at theage enlarge the membership of the Court to asmany as fifteen of 55, after having served on the Court for sixyears. Both of Justices; the President would have the authorityto appoint an these deaths may fairly be described as untimely, and the additional Justice for each member of the Court over seventy terms of service of both Justices Murphy and Rutledgewere years of age who chose not to retire. This measure was shot substantially below the average for Supreme Colut Justices. down in flames in the Senate, a Senate that the Democrats Ironically, these two appointees were the roost "liberal" of controlled by a margin of five-to-one. But in the very course ofall the Roosevelt appointees on issues suchas civil rights and the battle over this legislation, Justice Van Devanter, who had civil liberties. Harry Truman, then President, replaced them been appointed to the Court by President Taft in 191,an- with Justices Tom Clark and Sherman Minton, respectively, nounced his intention to retire, and during thenext four years who had no doubts about the constitutionalityof New Deal there occurred six additional vacancieson the Court. The economic and social legislation, but who had quite different power to remake the Court, which Roosevelt hadunsuccess- views of the relationship of the Constitution to civil liberties fully sought from Congress, was given him by the operation ofand civil rights claims from those of Justices Murphy andRut- the actuarial tables. ledge. Here was an element of blind chance that frustrated There is no doubt that President Roosevelt was keenly at least in part the unanimity that had been predicted for theso- aware of the importance of judicial philosophy in a Justice of called Roosevelt Court: two of President Roosevelt's eightap- the Supreme Court; if he had not been, henever would have pointees died well before they might have been expected to taken on the institutional might of the third branch withhis die, permitting another President to fill the vacancies. One is Court-packing plan. When it appeared during the battle in the reminded of the statement of William Howard Taft, speaking Senate over the Court-packing bill that a compromise mightbe with ne-vspaper reporters as he stepped down from the Presi- achieved in velich Roosevelt would be allowed to appoint two dency. Numbering among his most important presidentialacts new Justices, he pondered with several of his intimates whom the appointment of six Justices to the Supreme Court, Taft he might choose, and there is little doubt thatuppermost in said he had told these Justices: "If any ofyou die, I'll disown his mind was a judicial outlook sympatheticto sustaining the you." New Deal legislation. The final factor that frustrated President Roosevelt'scom- Within four years of the defeat of the Court-packing legisla- plete success in his effort to pack the Supreme Courtwas a tion, as I have indicated, seven of the nine membeis of the deep personal animosity that developed among several of his Court had been appointed by Roosevelt, and in the shortrun appointees. It originally arose between Justice Black and Jus- the effect of the change in Court personnelwas immediate and tice Jackson, but then spread to ally Justice Douglas with Jus- predictable. SocialId regulatory legislation, whether enacted tice Black and Justice Frankfurter with Justice Jackson. The by the states or by Congress, was sustained across the board first public manifestation of this animositywas buried in the against constitutional challenges that might have prevailedbe- minute orders denying rehearing in the Jewell Ridgecase

3$ 42 this Constitution when the Supreme Court adjourned for the summer in June some authority that the Associate Justices do not have, 1945. The petition for rehearing claimedthat Justice Black but this is relatively insignificant comparedto the extraordinary should have disqualified himself in thatfive-to-four decision because it was argued by his one-time independence that each Justice has fromevery other Justice. law partner; Justice Tenure is assured no matter how Jackson's insistence upon separately one votes in any given case; stating his views as to one is independent not only of public opinion, of the petition for rehearing causeda deep rift between the two the Presi- Justices. dent, and of Congress, but of one's eightcolleagues as well. When one puts on the robe, This unedifying controversy resurfaced one enters a world of public scru- the following spring tiny and professional criticism whichsets great store by indi- in 1946. Chief Justice Stone died suddenlyin April of that year, vidual performance, and much lessstore upon the virtue of be- and President Truman delayed fillingthe vacancy for a num- ing a "team player." ber of weeks. Justice Jackson was at this time Special Prose- James Madison, in his pre-presidential cutor for the United States at the Nuremberg days when he was au- Trials of the Nazi thoring political tracts, said: war criminals. He had just wound up hismany months' work in Germany, but had not yet returnedto the United States. In early June, President Truman announced the appointment of But the great security againsta gradual concen- Fred M. Vinson as Chief Justice, andfour days later Justice Jackson released an unprecedented tration of the several powers in thesame de- statement to the press in partment, consists in giving to those who ad- Europe, although it was addressed nominallyto the chairmen of the House and Senate Judiciary Committees. minister each department, thenecessary Jackson then, constitutional means, and personal motives,to responding to what he thoughtwere inspired columns in the Washington press reflecting Black's view resist encroachments of the others. The provi- of the controversy sion for defence must in this,as in all other over the Jewell Ridge case, released to the public allthe gory details of that case in a light favorable cases, be made commensurate to the danger of to him. The reaction of attack. Ambition must be made to the American press and publicwas one of astonishment that counteract Jackson would air dirty linen in this ambition. The interest of the man must becon- manner, and of "a plague nected with the constitutional rights of the on both your houses" insofar as the Black-Jackson"blood feud" was concerned. place.12 Jackson and his ally, Frankfurter, had voted differently from Madison, of course, was talking about Black and his ally, Douglas, insome of the cases to come be- the principles neces- fore the Court before the Jewell Ridge sary to secure independence of one branch of thegovernment controversy, but one from another. But he might equally wellhave been talking cannot help wondering whether the bitter publicantagonism generated by that case exacerbated these about principles, at least in thecase of the Supreme Court of differences. The ex- the United States, designed to weakenand diffuse the outside pected "near unanimity" that the Rooseveltappointees were loyalties of any new appointee, and supposed to bring to the Courtwas frustrated by these antago- to gradually cause that ap- nisms as well as by the other factors pointee to identify his interests in thebroadest sense not that I have mentioned. merely with the institution to which he Thus history teaches us, I think, thateven a "strong" Presi- is appointed, but to his dent determined to leave his markon the Courta President own particular place within the institution. Here again,this re- such as Lincoln or Franklin Rooseveltis markable group of fifty-somemen who met in Philadelphia in apt to be only par- the summer of 1787 seems to havecreated the separate tially successful. Neither the Presidentnor his appointees can foresee what issues will come before the branches of the federal government withconsummate skill. Court during the ten- The Supreme Court is to be independent ure of the appointees, and it may be thatnone has thought of the legislative and vei, much about these issues. Even though they executive branches of the government;yet by reason of vacan- agree as to cies occurring on that Court, it is the proper resolution of currentcases, they may well disagree to be subjected to indirect as to future cases wolving other questions when, infusions of the popular will interms of the President's use of as judges, his appointment power. But the they study briefs I hear arguments. Longevity of the institution is so structured appoin- that a brand new presidential appointee,perhaps feeling him- tees, or untimely acaths such as those ofJustice Murphy and self strongly loyal to the President who Justice Rutledge, may also frustratea Presider.t's expectations; appointed him, and so also may the personal antagonisms developed looking for colleagues of a similar mindon the Court, is imme- between aiately beset with the institutional strong-willed appointees of the pressures that I have de- same President. scribed. He identifies more and All of these factors are subsumedto a greater or lesser ex- more strongly with the new institution of which he has becomea member, and he learns tent by observing that the Supreme Courtis an institution far how much store is set by his behavingindependently of his more dominated by centrifugal forces, pushingtowards indi- colleagues. I think it is these institutional effects,as much as viduality and independence, than it is bycentripetal forces anything, that have prevented pulling for hierarchial ordering andinstitutional unity. The even strong Presidents from being any more than partially successfulwhen they sought to well-known checks and balances providedby the framers of "pack" the Supreme Court. the Constitution have supplied thenecessary centrifugal force to make the Supreme Court independentof Congress and the President. The degree to whicha new Justice should change his way of looking at things when he"puts on the robe" is emphasized by the fact that Supreme Court 1 N Sehachner, Thomas Jefferson. A Biography901 (1951). appointments almost 2. Id. invariably come "one at a time," and eachnew appointee goes 3. G. Dunne, Justice Joseph Story andthe Rise of the Supreme alone to take his place with eightcolleagues who are already Court 77 (1970). there. Unlike his freshman counterpart inthe House of Repre- 4. Id. at 78-79. sentatives, where if there has been a strong political tide run- 5. 2 C. Warren, The Supreme Courtin United Suites Ilistom 401 ning at the time of a particular electionthere may be as many (1922). as forty or fifty new members who forma bloc and cooperate 6. Id. at 380-81. with one another, thenew iudicial appointee brings no cohorts 7. 71 U.S. (4 Wall.) 2 (1866). with him. 8. 75 U.S. (8 Wall.) 603 (1870). A second series of centrifugal forcesis at work within tae 9 A Mason, Harlan Fiske Stone. Pillarof the Law 576 (1956). Court itself, pushing each member of 10. 334 U.S. 558 (1948). the Court to be thor- 11. 336 U.S. 77 (1949). oughly independent of his colleagues.The Chief Justice has 12. The Federalist No. 51, at 349 (.1. Madison)(J. Cooke ed. 1061).

,... this Constitution .... 39 The Northwest Ordinance: America'sOther Bicentennial by Phillip R. Shriver

The following piece is evcopted from "America's atherBicentennial" by Philip B. Shilm; which appeared originally in The Old Northwest: A Journal of Regional Life and Letters, roz h nofall I98d ffie are grakyid 16 The Old Northwest and to Miami University, aitoiyi, Ohio, its publishei; for permission to reprint.

MENTION the word "bicentennial" today to many Ameri- tinental nation. Frederick Merk of Harvard has noted that "The cans and there is evoked a mélange of memoriesof Main United States is today a republic of 50 equal partners. Of the Street parades, tall ships, a sky full of fireworks, and a shelf 50, 31 have come into the Union under the principles of the full of John Jake's novels. Yet for all the superficial hoopla, Northwest Ordinance of 1787." [Ray Allen] Billington in his celebrations across the land on the Fourth of July 1976 anni- book on Westward Expansion has asserted that "the Ordi- than any doc- versary of the Declaration of Independencestirred national nance of 1787 did more to perpetuate the Union pride in a decade which provided little else for the nation to ument save the Constitution. Men could now leave the older be proud about. states assured they were not surrendering their political privi- Mention that same word "bicentennial" to a gathering of his-leges. Congress had not only saved the Republic, but had re- torians and, after some wry smiles, the reaction probably moved one great obstar..le to the westward movement." In an would be as much anticipatory as reflective. For as the nation article presented at the 1974 conference of the Western His- approaches the seventeenth of September)87 and the two- tory Association, engagingly entitled "The Continental Na- hundredth anniversary of the signing of the constitution, prep-tionOur Trinity of Revolutionary Testaments," John Porter arations are already well underway withinre Congress and Bloom has argued that the Declaration of Independence, the among a number of historical associations for suitable recog- Constitution, and the Northwest Ordinance together constitute nition in an atmosphere less likely to be prone to sideshows the "Trinity of Revolutionary Testaments" which "proposed a than the main event. Indeed, significant scholarly writing on certain course for the nation to follow" and which have given the subject of the Constitution already has quickened, as the the American people an "historic sense of direction" over "two proliferation of recent journal articles will attest. At the same centuries of national experience...." time, the welcome enthusiasm of the past decade for serious Given all of the generally positive comment about the ex- research and writing on the American Revolution and the Dec-traordinary historical significance of the Northwest Ordinance laration of Independence has not entirely subsided among his- by so many historians over so long a period of time, one is torians, nor will it. moved to ask why it has suffered so much relative neglect Yet America also has a third major bicentennial in the offingfrom the general public when compared with the adulation which thus far largely has been ignored, and it is about this heaped on its revolutionary counterparts, the Declaration of one that I want to speak today. I am referring tothe approach-Independence and the Constitution. Four basic answers come ing bicentennial of the Northwest Ordinance of 1787. My thesisto mind: is this: of the literally hundreds of documents in our history The first is the incredibly complex, unappealing, and legalis- that deserve to be called significant, only a handful can be tic style in which much of it was written, a fault not shared by called fundamental; and of these, the three most fundamental the other two documents. Though Congress had considered to the formation of the nation were the Declaration of Inde- the measure for more than three years, it was modified exten- pendence, the Constitution, and the Northwest Ordinance. Ac- sively and completed in haste in a single week, 6-13 July 1787. cordingly, I believe that the two-hundredth anniversary of the Quite simply it reflects the haste in which it was written. great Ordinance merits appropriate recognition and celebra- Second, it had no primary authors of first rank to give it tion, here in this state (its first fruit) and across the land. stature and nobility. The immortality of a Thomas Jefferson, an I shall admit at the outset that in terms of name recognitionAlexander Hamilton, or a Benjamin Franklin would not em- and general understanding the Ordinance does not begin to brace this document as the Declaration and the Constitution compare with the first two. Indeed, even among college stu- were embraced. Instead, the Ordinance was the creatureof a dents, if tne blue books I have graded over the years are any succession of committees, principal figures of which were indication, the Ordinance is not always readily identified or itsmen of lesser rank, such as Nathan Dane andRufus King, nei- significance understood. Adopted by the Congress in New ther of whom had a penchant for lofty political philosophy. York on the thirteenth of July 1787 near the close of the peri- Third, the Ordinance was the product of a dying Congress od of Confederation, even as delegates had assembled at Phila-scarcely able to function under the ineffective and tormented delphia to create a new constitution, it established a govern- Articles of Confederation. This contrasted sharply with the ex- ment for the territory north and west of the riverOhio and a citement attending the birth of a new nation with the Declara- plan by which a territory could become a state on an equal tion of Independence and the birth of a new government un- footing with states already in the Union. In retrospect, it was der the Constitution of the United States. the most magnanimous colonial policy the world had ever Fourth, the Ordinance was tarnished by the spectre of spec- seen. In six articles of compact, it provided the firstbill of ulation. The principal reason for its passage in July 1787 was rights, anticipating the amendments which would later be add-the near bankruptcy of the federal treasury and the availability ed to the Constitution. Guaranteed to those who would leave of ready cash from speculative land companies ready to take their homes in the settled East and cross the mountains into advantage of that distress by negotiating the purchase of great frontier wilderness were religious freedom, the historic safe- chunks of the public domain for pennies on the acre once gov- guards of jury trial and judicial procedure, the writ of habeausernment in the territories had been established. Profit may not corpus, the prohibition of primogeniture, theestablishment of be a dirty word in Ohio in 1983, but it has never been altogeth- schools and encouragement of education and freedom foreverer respectable in the minds of manywhen that profit was as- from slavery and involuntary servitude. By this last provision, sociated with the use of public property. Consequently, theOr- the celebrated Article VI, the Ohio River became the historic dinance has never had quite the aura of idealism and virtue boundary between free soil and slave ... about it that has been associated with the Declaration or the In ...recent decades, ... historians of the Ordinance have Constitution.... found it key to an understanding of the emergence of our con- Why then in the light of all its many shortcomingsits

44 this Constitution faulty language, the near obscurity of its authors, its enact- Will the historians of this state, the first fruit of the great ment by a moribund Congress in collusion with conniving Ordinance, the embodiment of that idea, of that vision, take speculatorswhy then, we might ask, do we find historians the lead in recognizing and appropriately celebrating Ameri- generally agreed on its greatness, "its abiding place of honor ca's other bicentennial? My hope is that such will be the re- [among] American institutions"? [Theodore Calvin] Pease sug- solve of each one, and of us all, as we look to the year and gests that for all its faults the Ordinance will be "a precious years ahead. part of the world's heritage in distant ages to come" because it embodied an idea, the idea "that men may not permanently byFor more information about the Northwest Ordinance their brothers be held in political subordination and clientage; Bicentennial commemoration, contact: ... that the highest and most sacred guarantee, the most practical and stable cement of states and governments is the free NORTHWEST ORDINANCE CELEBRATION and unforced covenant and agreement of man and man." Frank B. Jones, Chairman Bruce Catton, in a final work published posthumously by his Mary Helm, Exec. Asst. son, William, entitled The Bold and Magnificent Dream, Indiana University caught that same vision when he wrote of the Ordinance: Memorial Union M-17 "Once and for all, it determined what sort of country this was Bloomington, IN 47405 going to be; the concept of complete equality, so nobly voiced(812) 335-5394 in the Declaration [of Independence], was written into the basic document that would determine how the nation grew. It NORTHWEST ORDINANCE SOCIETY compelled men to look past their own dooryards to somethingJudge Gerald E. Radcliffe unlimited beyond the horizon, and decreed that a man's place Ross County Courthouse as a member of the American Republic would be forever Chillicothe, Ohio 45601 greater than his place as a resident of a single state...." (614) 774-1177

Bicentennial Gazette

PLANNING A CONFERENCE FOR HIGHER EDUCATION By Richard Peterson

If you are planning events for the bicentennial, it may sur- their plans to celebrate the bicentennial. While the format of prise you to know that one of the most useful and relevant many plans was similarsymposia with visiting scholars, de- conferences might just turn out to be the easiest to imple- bates, and participatory meetingsthe range of issues and menta conference on the role of higher education in the bi- topics was as broad as the number of colleges represented. centennial. Not only will you have an audience of the "alreadySome have foreign visiting scholars in residence, who are converted," but you will also have the advantage of hearing available as guest speakers to other colleges. A few of the col- from people experienced in educating others about a subject leges are making exemplary efforts to reach out to the public as lofty but as pervasive as the Constitution. at large, including high schools and elementary schools. Partic- You will probably find that many of the colleges in your ipants included. the College of William and Mary, James Madi- state are already well into developirg plans for celebrating the son University, George Mason University, Mary Baldwin Col- Constitution. Hence, this conference will provide you with an lege, Virginia State University, CBN University, Longwood overview of what is going on in your state, and, further, you College, Norfolk State University, Clinch Valley College, Tide- will uncover new resources of speakers and experts whose in- water Community College, Virginia Commonwealth University, terests range over diverse aspects of the Constitution and its Northern Virginia Community College, Eollins College, Rad- historical development. ford University, Washington and Lee University, Bridgewater The Virginia Bicentennial Commission held its own confer- Community College, the University of Virginia, the Virginia ence on higher education on September 30, 1986, at the begin- Polytechnic Institute, and Christopher Newport College. ning of the academic year. We used the facilities of the Univer- For the benefit of those who may have little experience in sity of Virginia. We were lucky enough to begin with lively conference planning, here are a few pointers that will help remarks from Virginia's Governor Gerald L Bali les, our key- your conference run smoothly. We thought of some of these note speaker. Naturally a wider audience of students and the things only at the last minute. This section will also give you press attended the governor's talk. an indication of how little time and money one needs to carry The group then adjourned to less public quarters, and two it off. Perhaps it is worth mentioning here that one of the members of the federal commission spoke. Dr. Lane Sunder- greatest concerns of those planning a conference is the con- land, Director of Educational Programs for the Federal Com- tent of the conference. In this case, the time and worry associ- mission, and Professor Leo Levin, Director of the Federal Judi- ated with this task is alleviated by the iact that the content cial Center, brought those assembled up to date on federal will be determined by the invited participants. efforts in higher education and offered ideas on how to tap 1. Obtaining the meeting facility. While a college is the into their resources, such as speakers and materials. most natural setting for a conference of this nature, you may After a luncheon address from A.E. Dick Howard, chairman find that none is convenient for your speaker and the majority of Virginia's Bicentennial Commission, the afternoon session of your participants. If you cannot afford the facilities of a pri- was devoted to a discussion among the representatives about vate hotel, why not ask civic minded groups such as churches

this Constitution 41 THE NATIONAL ENDOWMENT FOR THE HUMANITIES Special Initiative for the Bicentennial of the United States Constitution

and the Elks to donate space? Some even have dining facili- Summer Stipends Lane V. Sunderland ties, which is a major consideration. The total cost for fleeting Knox College rooms, lunch, and coffee for our 50 guests was $481.00. (February 1986) Galesburg, IL 61401 2. Obtaining a guest speaker(s). Past and present public of- Contemporary Constitutional ficials, such as state attorney generals, judges, and members of Ronald J. Bacigal Commentators: An Analysis of state and national legislatures, make excellent speakers. Not University of Richmond Contending Theories only are they committed to promoting constitutional aware- Richmond, VA 23173 ness, but also they often have a practical and interesting per- The Origin and Nature of the Robert J. Spitzer spective on the Constitution that has been gained from specif- Fourth Amendment to the United SUNY-Cortland States Constitution Cortland, NY 13045 ic issues with which they have struggled. Usually they will not The Presidential Veto require an honorarium, though you are expected to pay for Michal R. Belknap their expenses. Your audience of scholars is accustomed to University of Georgia hearing other scholars speak and is likely to appreciate the im- Athens, GA 30602 Summer Seminars mediacy with which a public official deals with the Constitu- War and the United States Con- (August 1986) tion. stitution in the 20th Century 3. Publicizing the conference.- This effort includes mailing a form letter to all of the institutions of higher education in your Michael L. Benedict THE FEDERALIST AND THE Ohio State University CONSTITUTION state inviting them to attend the conference. You may also Peter J. Galie want to send out a press release. You should publicize your Columbus, OH 43210 Civil Liberty and Civil Rights inCanisius College conference and star speaker in campus and/or local private the U.S. Buffalo, NY 14208 newspapers and radio. Depending on the appeal of your major Award: $62,308 speaker, this will provide for a broader audience for at least Stephen A. Conrad part of your conference, and at any rate it is good to let the Indiana University THOMAS JEFFERSON: world know what your commission is doing. Bloomington, IN 47405 THE INTELLECTUAL ON 4. Providing name tags and other conference hand, -tits. Authority and Power in James MISSION Wilson's Constitutional Themy Robert F. Jones The fewer handouts, the less effort required on the part of the Fordham University planners. Just remember that handouts, including a list of at- Harry N. Hirsch Bronx, NY 10458 tendees and a program, enhance any conferenceand educa- Harvard University Award: $54,905 tors almost expect them. Fortunately you may find, as we did, Cambridge, MA 02138 that some colleges bring their own handouts. Since your guestConstitutional Liberty in the REPUBLICANISM AT THE list will not be finalized until the last minutetrust me, profes-Age of Equality: Marginal Per- FOUNDING. THE FEDERALIST- sors have constant scheduling problemsbe prepared to be sons and the Liberal Self ANTIFEDERALIST DEBATE up late the night before the conference finalizing the list of at- Gordon Lloyd tendees and making name tags. Peter C. Hoffer University of Redlands University of Georgia Redlands, CA 92374 5. Little but critical details. Lodgingwhile you may not be Award: $60,254 paying for or arranging lodging for those invited, you must Winterville, GA 30683 Historical Origins of Federal Eq- know the motels best suited to those attending and whether uity Jurisdiction THE HUMANITIES AND THE they are available, because you will get inquiries. Of course CIVIC SELF you should make all the arrangements for your speaker. Park- David E. Kyvig William F. May ingyou may need to obtain special permits and mail them to University of Akron Southern Methodist University the conferees in advance. Mapsyou must send everyone a Akron, OH 44325 Dallas, TX 75275 map explaining the location of the events, parking, dining, and Constitution Amending 2n the Award: $69,370 lodging. Agendain addition to a map, you must mail a pro- Early 20th Century gram of the day's agenda to everyone who accepts the invita- JOHN LOCKE AND THE PHILO- John L. Larson SOPHICAL FOUNDATIONS OF tion. The program and the map must be clear enough for those THE AMERICAN CONSTITU- who cannot attend the entire day's events but must select a Purdue University West Lafayette, IN 47907 TION portion of the program. Audio/visual taping equipmentyou Technology, Innovation, and Theodore E. Uehling, Jr will probably want to have it on hand. Constitutional Legitimacy in the University of Minnesota, Morris 6. Post-conference effort. You may or may not want to send Early United States Morris, MN 56267 minutes of the conference to attendees and those who could Award: $57,409 not attend, but were invited. Those who decline often request H. L Pohlman any handouts that were prdvided to attendees. Carlisle, PA 17013 Good luck on your conference. We felt the return on our in- Justice Oliver Wendell Holmes's vestment in time and money was well worth it. Not only did Constitutional Theory we on the Commission staff learn of higher education's plans, David A. Sloan but those colleges which had not focused on the effort to date University of Arkansas became involved in celebrating the Constitution. Fayetteville, AR 72701 Constitutionalism, Popular Sov- ereignty, and the State-Making Richard Peterson is on the staff of the Virginia Bicenten- Process. 77w Mau/pies of Ohio nial Commission. and Arkansas 46 42 this Constitution Education Programs (August 1986) INDIANA UNIVERSITY ALUMNI ASSOCIATION Bloomington, IN 47405 Project Director: Frank B. Jones OKLAHOMA STATE UNIVERSITY, STILLWATER Award: $125,000 Stillwater, OK 74078 To support an interpretive exhibition, catalogue, brochures, and public Project Director: Carolyn J. Bauer lectures during the bicentennial of the Northwest Ordinance and the Award: $150,000 U.S. Constitution. To support a four-week residential institute on the origins and principles of_the U.S. Constitution for elementary and junior high school NEW ENGLAND LIBRARY ASSOCIATION teachers. Follow-up workshops will be held in the fall and spring. Acton, MA 01760 Project Director: Leah Glasser UNIVERSITY OF OKLAHOMA Award: $245,444 Norman, OK 73019 To support a series of programs focusing on the framing of the US. Project Director: Paul A. Gilje Constitution and on the character of 18th-century New England. The Award: $64,941 programs will take place in six states and use three formats: scholar- To support the establishment of a program of adult seminars for non- led book discussions, a dramatic presentation with discussion, and traditional learners. The seminars will focus on the historical, philo- musical performance with lectures. sophical, and cultural context of the U S. Constitution.

Media Programs (August 1986) Bicentennial Seminars for Law Professors (August 1986) CALLIOPE FILM RESOURCES, INC. Somerville, MA 02144 The Genius of the American Constitution Project Director: Randall Conrad Timothy Fuller Award: $10,100 Colorado College To support additional scripting work on an NE1I-supported 90-minute Colorado Springs, CO 80903 television drama that will illumine the post-Revolutionary clash be- Award: $59,274 tween New England farmers and merchants known as Shays' Rebel- To support a three-week seminar for law professors on the intellectual lion (1786-1787). background of the Constitution, the debates at the Convention and in the states over ratification, and contemporary issues in interpretation. DELAWARE DIV. OF HISTORICAL & CULT. AFFAIRS Dover, DE 19901 The Origins of Constitutional Supremacy Project Director: John R. Kern William E. Nelson Award: $15,000 New York University To support the revision of a script and sonic pre-production costs for New York, NY 10003 a 90-minute film dramatizing the life of John Dickinson (1732-1808), a Award: $65,810 significant political essayist of the 1760s and a key figure in the de- To support a three-week seminar for law professors on the origins of bates surrounding the creation c f the United States Constitution. the concept of the Constitution as a law superior to ordinary legislation. KCET/COMMUNITY TV OF SOUTHERN CALIFORNIA Los Angeles, CA 90027 Political Experience and Thought in the Making of the Constitu- Project Director: David Crippens tion Award: $40,000 Jack Rakove To support the writing of scripts for two 60minute television pro- Stanford University grams exploring the history, principles, and promise of the American Stanford, CA 94305 federal system of government Award: $54,165 To support a three-week seminar for law professors on the range of issues that arise in the historical interpretation of the framing of the U.S. Constitution. Research (May 1986)

CUNY RES. FDN/QUEENS COLLEGE Programs in Libraries Flushing, NY 11367 (February 1986; August 1986) Pioject Director: John Catanzariti Award: $168,005 To support the preparation of a AMERICAN LIBRARY ASSOCIATION nine-volume edition of the papers Chicago, IL 60611 of Robert Morris and the Office Project Director: Peggy Barber of Finance (1781-1784) Award: $270,172 To support a tour of three facsimiles of the New York Public Library's exhibition of the drafting and ratification of the U.S Constitution. The exhibition will travel to 30 sites over an 18-month penod and will in- (Dates refer to uwarding of grant, not to date of pro- clude interpretative programs and education packages. gram.)

this Constitution 4 7 43 SCHOLARLY CONFERENCES

THE CONSTITUTION College of Law 200 YEARS OF THE For more information contact: TWO HUNDRED University of Florida U.S. CONSTITUTION: John C. Gregory, Jr. YEARS LATER: IS IT Gainesville, FL 32611 Franklin Pierce Law Center (904) 392-2211 A CELEBRATION Constitution Bicentennial WORKING? The Franklin Pierce Law Center Celebration Committee University of Dayton THE U.S. CONSTITU- Concord, NH 03301 2 White Street Dayton, OH 45469-0001 TION, PAST AND PRES- March 23-26, 1987 Concord, NH 03301 September 1986March 1987 ENT: A BICENTEN- Principal speaker: Gerald R. Ford Topics: Right to Privacy; Equality; NIAL COLLOQUIUM DESIGN AND PRACTICE: THE CONSTITUTION Separation of Powers; Future of Purdue University Calumet AS A WORKING DOCUMENT-A DARTMOUTH Constitutional Government. Hammond, IN 46323 BICENTENNIAL SERIES For further information, contact: November 8, 1986 Dartmouth College April 21, 1987: The Supreme Roberta Alexander Principal speaker. Robert Wiebe, Hanover, NH 03755 Court's Agenda History Dept. Northwestern University Oct. 21, 1986: The Future of Fed-May 5, 1987: Legislative Respon- University of Dayton Topic: Intent of the Founders: A eralism: If not Big Government, sibility: The Ability of Congress Dayton, OH 45469-0001 Citizen's Concern and a Teach- Then Big States to Govern (513) 229-1848 er's Challenge. Nov. 21, 1986: The Ability of the For further information contact: For further information, contact: President and Congress to Pro- Laura Dicovitsky THE SOUTH AND THE Edward P. Keleher vide a Coherent Monetary Policy Dartmouth College, News Service AMERICAN CONSTI- Department of History Jan. 27, 1987: The Concept of Centurion Bldg TUTIONAL TRADI- Purdue University Calumet Equality and Affirmative Action 3 Lebanon St Hammond, IN 46323 Feb. 17, 1987 The Presidency & Hanover, NH 03755 TION the Conduct of Foreign Policy (603) 646-3661 University of Florida CONFERENCE IN Gainesville, FL 32611 CELEBRATION OF "CONSTITUTIONAL ROOTS, RIGHTS AND RE- March 6-7, 1987 THE BICENTENNIAL SPONSIBILITIES," THE NINTH INTERNATION- Principal speaker. Herman Bela, OF THE CONSTITU- University of Maryland. AL SMITHSONIAN SYMPOSIUM COMMEMO- Topics: The Origins of Southern TION RATING 200 YEARS OF THE U.S. Constitutionalism; Research in Loop College CONSTITUTION Southern Constitutional History; Chicago, IL 60601 The View of Constitutional Gov- March 20.21, 1987 Charlottesville, Va. & Washing- Ernest Boyer, Carnegie Founda- ernment from the Bench; Race Topics: The "Interest of the ton, D.C. May 18-23, 1987 tion; Sanford Levinson, Princeton and Dissent in the Constitutional Framers"; Teaching the Constitu- Sponsored by the Sm4thsonian University; Walter Dellinger, History of Florida; The Confeder-jon; The Burger Court; "Fixing" Institution in cooperation with Duke University. ate and Reconstruction Experi- the Constitution. the American Bar Association Topics: the evolution of citizen ence; The South in Comparative For more information contact: and the University of Virginia rights and responsibilities; priva- Constitutional Perspective. Prof. Gloria Carrig, Principal speakers: A.E. Dick cy, censorship, and surveillance; For further information contact: Social Science Dept. Howard, University of Virginia; impact of technology; Constitu- Ms. Elizabeth B. Monroe Loop College, 30 East Lake St. Justice William Brennan; Henry tion's influence abroad; amending .Editorial Assistant Chicago, IL 60601 Steele Commager, Amherst Col- the Constitution; judicial review. Law and Society Review (312)984-2810 ext. 2913 lege; Merrill Peterson, University May 22 will be devoted to citizen- of Virginia; Robert Palmer, Yale ship and the Constitution. IItea....,. -. EUVT 1,1 ...1. ,b, ...... ,.... University; Judith Shklar, HarvardFor additional information, con- 11 of Cbriflogber Marshall and Tkonzat Say.: II University; Jack Green, Johns tact Neil Kotler, Smithsonian In- , Hopkins University; Michael stitution, (202) 357-2047 or (20k) ...u. ,A, .. -,....:- Kammen, Cornell University; 357-2328. Robert Coles, Harvard University;

.''..;;4.-ii I .... t':i4i1 INTERNATAONAL CONFERENCE ON THE 42, UNITED STATES CONSTITUTION ITS BIRTH,

' maglIM 101101111111FM1.1. GROWTH AND INFLUENCE IN ASIA 410111- a .111.1111 The Ameri :an Studies Associa- Topics: the ideological origins of tion of Hong Kong, The Chinese the Constitution; the "Living Con- Univ. of Hong Kong and Hong stitution"; the influence of the Kong Baptist College U.S. Constitution in Asia. Kowloon, Hong Kong For further information contact: June 25-28, 1986 J. Barton Starr, Chairman Principal speakers: Ret. Chief U.S. Constitution Conference Justice Warren E. Burger; Mi- do Department of History chael Kammen, Cornell Universi- Hong Kong Baptist College ty; 'Ake Shirley Abrahamson, 224 Waterloo Road Wisconsin Supreme Court; Akira Kowloon, Hong Kong Courtesy of The Library Company of Philadelphia. 'dye, University of Chicago.

44 48 this Constitution 3MMilil=.1

ORGANIZATIONS and INSTITUTIONS

Iroquois Contributions to the United States James H. Hutson, Calvin C. Jillson, Isaac Kramnick, Ralph Ler- ner, Edmund S. Morgan, Jennifer Nedelsky, Peter S. Onuf, J.R. Constitution Pole, Jack N. Rakove, and Jean Yarbrough. All proceedings, including the reception, will be open to interested persons free Americans for Indian Opportunity and "The Meredith Fund" of charge, and no advance registration is required. For addi- have united to sponsor a research program into Native tional information, write: Professor Ronald Hoffman, Depart- American political theories and their relation to the U.S. Con- ment of History, University of Maryland, College Park, Mary- stitution. The project has been granted official recognition land 20742. from the Bicentennial Commission. For more information, write: MO, 1010 Massachusetts Avenue, N.W. #200, Washing- ton, D.C. 20001; telephone: (202) 371-1280. Colonial Williamsburg Plans New-York Historical Society Bicentennial Events Plans Exhibit Colonial Williamsburg's first annual history forum for the general public will be held November 19-21, 1987. Entitled On September 17, 1987, The New-York Historical Soci- "The Constitution Makers: Colonial Constitutions 1750-1784," ety will open a major exhibition to celebrate the two the forum will focus on the events and ideas that led to the hundredth anniversary of the United States Constitution. U.S. Constitution. Topics include republican traditions, prac- The exhibit is titled: "Government by Choice: Inventing tices of colonial governments and the imperial constitution, the United States Constitution." American state constitutions, and the Articles of Confedera- The exhibit will include, for example, an important tion. Special tours of Colonial Williamsburg as well as eigh- eyewitness account of the writing of the Constitution, teenth-century entertainment will complete the three-day pro- that of Rufus King, a delegate who participated in the se- gram. For more information contact Registrar, History Forum, cret debates; one of the extremely rare existing original Colonial Williamsburg, P.O. Box C, Williamsburg, VA 23187; manuscripts of The Federalist; and the actual corre' (804)229-1000. dence between James Madison and the other founders In addition, Colonial Williamsburg will offer a two-hour as they agonized over the issues that divided Federalists walking tour on Wednesday and Fridays, March 15-August 31, and Anti-Federalists. A handwritten preliminary draft of 1987, 10:30 a.m. The tour will explore the links between eigh- the Constitution with the last minute changes that the teenth-century Williamsburg and the U.S. Constitution. founders made before revealing their plan to the nation, the chair in which President-elect George Washington Constitution 200 Mounts Public Assemblies was seated during his inauguration, the desk used by the first Speaker of the House of Representatives, and many Five public assemblies in Georgia, Alabama and South Caro- other compelling memorabilia will be included in the ex- lina focused on rights of criminals and victims, education, hibit. religion, voting rights and privacy in 1986. Held by Constitu- A self-guided tour using acoustiguide tapes and ear- tion 200, a project of the Governmental Education Division of phones is being professionally prepared for use by visi- the Carl Vinson Institute of Government at the University of tors. For school children, a range of appropriate tours, Georgia, the assemblies offer a panel of community leaders activity books and workshops will be offered. Saturday and a dialogue between speakers and the audience. Additional lectures are being planned for New York City junior and meetings will take place in 1987. Constitution 200 is funded by senior high school teachers to prepare them for class the National Endowment for the Humanities; it works with the trips to the exhibit. Bureau of Governmental Research and Services at the Univer- The guest curator for the exhibition, Dr. Elizabeth P. sity of South Carolina and the Alabama Law Institute at the McCaughey, is preparing a catalogue, which will include University of Alabama. For more information, contact: Mary a fifty page interpretive account of the Federal Conven- Hepburn, Carl Vinson Institute of Government, Athens, GA tion, an annotated list of the 193 items dk,played, and 30602; telephone: (404) 542-2736. some forty photographs. The Society will devote its 1987 fall lecture series to timely constitutional issues. Five Wednesday evening Symposium at the Capitol lectures are planned and distinguished public figures and scholars will speak on topics such as 'Federalism: The United States Capitol Historical Society will sponsor a The Persistent Struggle for Power," "Judicial Decision symposium entitled " `To Form a More Perfec t Union': The Making and Judicial Appointments," and "The Media and Critical Ideas of the Constitution" on March 26 and 27, 1987. the First Amendment." The meeting will be held in the Senate Caucus Re m, SR-325, For further information, contact Deborah Nadler, in the Russell State Office Building, Washington, .C. The pro- New-York Historical Society, 170 Central Park W' gram will consist of four sessions and a concluding lecture, New York, N.Y. 10024-5194; telephone: (212) 873-0, followed by a reception. Speakers wilt include Herman Belz, James MacGregor Burns, John P. Diggins, Edward J. Erler, this Constitution 49 45 NCCJ to Commemorate Constitutional Burger, Scalia Address Conference at Bicentennial Macalester College

The National Conference of Christians and Jews is undertak- On September 11-12, 1986, Macalester College presented the ing a nationwide effort to get Americans of all ages, back- DeWitt Wallace Conference on the Liberal Arts. This year's grounds and walks of life to "sign" the Constitution. theme, "The Constitution, Freedom of Expression and the Lib- Through its national network of 75 regional offices, the Con-eral Arts," was chosen it. recognition of the Bicentennial of ference would seek to mobilize the public to sign their names the Constitution. to constitutional fac-'milies that will be provided by NCCJ for Retired United States Chief Justice Warren Burger, Chair- the Bicentennial ebration of the Constitution. man of the Commission of the Bicentennial of the Constitution The "signed" constitutions will be returned to NCCJ for pre-of the United States, gave the opening address. Antonin Scalia, sentation to the appropriate officials in Philadelphia at the Bi- Supreme Court Associate Justice, and Norman Dorsen, presi- centennial Commission parade and celebration on September dent of the American Civil Liberties Union, led formal discus- 17, 1587, the 200th anniversary of the signing of the U.S. Con- sions on freedom of speech issues. stitution. Other speakers in the two-day program included Harry Gray, The "sign the Constitution" commemorative effort is the professor of chemistry, California Institute of Technology, first phase of an NCCJ five-year concept which coincide:. .,rithJohn Wideman, novelist and professor of English, University of the 200th anniversary of the process through which the Consti-Wyoming, Robert Jay Lifton, Distinguished Professor of psy- tution, including the Bill of Rights, was drafted and ratified. chiatry and psychology, City University of New York, and Mary There are two major components of the NCCJ's Living Con- Beth Norton, professor of history, Cornell University. Their stitution Project: curriculum enrichment for elemental-- .-nd presentations considered freedom of expression issues in each secondary schools, and Constitution learning activities .0 civ- of their four disciplines. ic and adult groups. For further information, contact Warren Vollmar, Macalester NCCJ curriculum enrichment materials focus on constitu- College, 1600 Grand Avenue, St. Paul, MN, 55105; telephone: tional considerations. The learning models are designed for (612) 371-5504. various age levels. An "idea bank" of additional suggested activities also has been created. Marty the NCCJ materials designed for students also are National Park Service Slide Show Available appropriate for individuals in other settings. They include civic, service and fraternal groups, churches, synagogues and other ieligiutis congregations, non-school youth groups, colleges Th, National Park Service has produced a new 16-minute and universines. :,ound/slide show on the Bicentennial of the Federal Consti- For further information, write: NCCJ, 71 Firth Ave., N.Y., tution entitled "Blessings of Liberty." A succinct and graphic N.Y. 10003; telephone: (212) 206-0006. account of the framing of the original document and subsequent amendments, the show draws on the Nation's parks, monuments, and historic sites beginning with Independence University of North Dakota join National Historic Park in Philadelphia. Many of these places, like Independence Hall, mark turning points in the nation's his- High i?chonis for Bicentennial Program tory and are preserved as part of the National Park System. The student who wishes to visit the surviving places associated with the story of the C Itution or read further on the As its contribution to the Bicentennial Celebration of the subjed should know of tw' . ..ent publications by the Nation- U.S. Constitution in 1987, the University of Nor.n Dakota .1 Park Service, "Signers of the Constitution: Historic Places through the Bureau of Governmental Affairs is coordi- Commemorating the Signers of the Constitution" and "Fram- nating a statewide prop= for high school students involving ing of the Federal Constitution." These can be purchased from basic learning and competitive events. the Suparintendent of Documents, U.S. Government Printing Professors Ronald Pynn, Phil Harmeson and Lit-yd Ortalahl Office, Washington, DC 20402. Copies of the sound/slide show have prepared a fifteen-lesson paperback text on the origin are available through the National Audiovisual Center, 8700 and contents of the Constitution for use in high schools. A Edgewater Drive-, Capital Heights, Maryland 20743-3701; teacher's manual, including various kinds or learning exercises (301)763-1896. and projects, supplements the text. After students have engaged in study of the Constitution, they will be prepared to participate in a number of competitive events, including short-answer tests, essay competitions, art, debate, oratory, reading, drama, poet and journalism events. State competition will take place at the University of North Dakota March 15-17, 1987. For further information, write: Bu- reau of Governmental Affairs, Box 7167, University of North Dakota, Grand Forks, ND 58202; telephone: (701) 777-3041. 50 44 this Constitution

1 Scripts for Radio Spots on ConstitutionNow Available

Fifty-twoscripts written by political scientist Walter B. on which they have so long and so diligently la- Mead, a series called "The United States Constitution: bored, is read aloud. Then James Wilson reads for A Non-Trivial Pursuit," tell the story of the Constitution- the frail doctor Benjamin Franklin perhaps the al Convention in the summer of 1787. They are available most eloquent speech of his long life, in which the for use by schools or local radio stations. Designed as a patriarch urges that each of his colleagues, what- series of public service announcements, these two-min- ever their differences throughout the summer have ute scripts have been recognized as a "valuable contribution" by the American Bar Association. Topics in- been, now unite in signing the document. clude: the Articles of Confederation, Shays' Rebellion, There follow numerous other pleas for unity. Washington's decision to attend the Convention, Phila- The clock outside on the State House wall strikes delphia in 1787, profiles of the delegates, the role of three before all the speeches are concluded. Then commerce, decisions about representation, opposition to the delegates begin to file, one after another to the the Constitution, ratification, and many other themes. table at the front of the room where they affix To obtain information about production or to order a their signatures to the still controversial document. complete set of scripts, send $5.95 ($4.95 per set for or- Thirty-eight of the forty-one delegates sign, and ders of 10 or more sets) to Professor Walter Mead, 1279 one signs for still another who is absent because Grizzly Peak Blvd., Berkeley, CA 94708; telephone: (415) of illness. This is no small accomplishment. All 549-1386. would have preferred a Constitution different in some particulars, but the vast majority are con- No. 41: 'Last Day of the Convention' vinced that the present proposal is the best they could ever agree upon and infinitely superior to It is the morning of Monday, September 17th, the apparent alternativeanarchy. 1787, the final day of the Constitutional Conven- On the crown surmounting the high back of tion. In striking contrast to what the delegates General Washington's chair is a carved and gilded have endured throughout most of the summer, the sun. While the last of the delegates signs the Con- air is cool. The touch of autumn reminds them of stitution, Ben Franklin is heard commenting to the time that has elapsed since most of them last those around him that, as he had pondered the saw their families the previous May. Forty-one of outcome during the changing moods of the con- the fifty-five delegates have stayed to the very end vention, he had wondered whether the sun on the and have assembled in their seats. Although its back of the chair was rising or setting. "But now at words are already thoroughly familiar to them, the length," declares Franklin, "I have the happiness to entire final draft of the proposed new Constitution, know that it is a rising and not a setting sun."

Jesuit Colleges Plan for Bicentennial Commission on the Bicentennial The Association of Jesuit Colleges and Universities (AJCU), a voluntiry organization of 28 colleges and universities in of the U.S. Constitution 18 states art! the District of Columbia, will conduct as it' contribution to the national celebration of the Bicentennial o: Staff Director:Mark Cannon(202) 872-1787 Constitution a project entitled "National Dialogue". Deputy Director:Ronald Mann(202) 872-1787 "National Dialogue" will consist of a variety of programs on constitutional themes initiated by member institutions and co- State and LocalPrograms: Paul Clark (202) 653.9808 ordinated by the national headquarters of AJCU. Plans and Project Recognition:Bill Buckingham(202) Some projects are already underway: a telecourse on the 653-9800 Constitution (Canisius College, Buffalo), a 3-day workshop on Communications:Tait Trussell(202) 275.9168 teaching the Constitution for secondary school teachers Federal and International Programs:Ronald 7'nnebridge (Creighton University, Umaha), a law school conference com- (202) 653-2487 paring the Constitutions of the United States and Canada (Uni- Private Programs:Gertrude Fry(202) 653.5377 versity of Detroit), a reenactment of the constitutional debates Educational Programs.Lane Sunderland(202) 653-5109 (University of Detroit), a senior class year-long theme (John Carroll University, Cleveland), a year-long exhibit for students and visitors (Loyola University, Chicago), faculty colloquia with a visiting scholar (Rockhurst College, Kansas City), an essay competition for students (Spring Hill College, Mobile), sev- Bin of Rights Bicentennial in 1991 eral public lectures, a series of TV presentation for alumni groups and the production of scholarly P.iticles on constitu- The editors ofthis Constitutionwould like to hear from tional themes. organizations that are planning events to mark the Bi- The Jesuit higher education system includes 4 melical centennial of the Bill of Rights. Please send a brief de- schools, 9 schools of education, 13 law schools, 21 schools of scription of the program and the name of a coordinator business, 22 Conferences, 28 colleges of liberal arts and sci- to contact for additional information to: Managing Edi- ences. All are being urged to participate, and to reach out in tor,this Constitution,1527 New Hampshire Avenue, dialogue to ther colleagues, alumni, other church-related N.W., Washington, D.C. 20036 schools and communities.

this Constitution 47 Subscription Information 1987-1988

Subscriptions received by June 1, 1988 will include five issues, beginning with issueno. 14 (Spring, 1987) and ending with issue no. 18 (Spring, 1988). Publication of this Constitution will concludewith issue no. 18. Individual copies of issue no. 13 (Winter, 1986) through issueno. 17 (Winter, 1987) can be purchased for $4.00 each. Issue no. 18 (Spring, 1988) an expanded issue can be purchased for $6.00. Issue nos. 1-12 are out of print. Contact Project '87 for information on ordering 10 or more copies ofone issue. Orders must be prepaid; purchase orders cannot be accepted. MI orders shouldbe sent and made payable to: Project '87, 1527 New Hampshire Avenue, N.W., Washington, D.C. 20036, ATTN:Publications.

Quantity Unit Price TOTAL 1987-88 Subscription (Issues 14-18):

Individual $15.00 Institutional $21.00 Foreign Individual $20.00 Foreign Institutional $26.00 Single copies of issues 13, 14, 15, 16, 17 (circle issues you are ordering) $ 4.00 Single copy of issue no. 18 $ 6.00

GRAND TOTAL. SHIP TO:

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r1T1irN-cvn .cv-vn D 1.' Luroscer Exhibits

Orders must be prepaid; purchase orders will not be accepted. All orders should be sent and made payable to: Project 137 THE BLESSINGS OF LIBERTY 1527 New Hampshire Ave., N.W., Washington, D.C. 20036. Quantity Unit Price TOTAL

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48 52 this Constitution A POSTER EXHIBIT FROM PROJECT '87 THE BLESSINGS OF LIBERTY

Tell The Story of the Tnited States Constitution with 12 full color 22" x 36" posters.

This exciting poster exhibit attracts the attention of viewers and conveys information through the use of vivid graphics accentuated by brief, carefully crafted texts. The ezhibit has received official recognition by the Commission on the Bicentennial of the United States Constitution.

An accompanying User's Guide features an 1 essay describing the events, ideas and leaders pictured in the posters, individual lessons for students in grades 4.6, 7-9, and kiosk 10.12, and other essays and bibliographies for adult viewers.

The posters are available unmounted or on a mounting system. The mounted exhibit consists of three sturdy cardboard kiosks. Four posters are displayed on each kiosk. The kiosk is 6' tall, charcoal gray, and foldable for s'zrage or reshipment. The poster exhibit either mounted or unmounted can be displayed effectively in libraries, civic centers, businesses, schools or courthouses. The posters are sold only in complete sets of twelve.

PRICES: UNMOUNTED EXHIBITS: $70 a set for fewer than 25 ow. $65 a set for 25 or more shipped to multiple addresses $55 a set for 25 or more shipped to one address MOUNTED EXHIBITS: Poster Titles: $110 a set for fewer than 25 The Blessings of Liberty $100 a set for 25 or more shipped to multiple addresses The Articles of Confederation $90 a set for 25 or more shipped to one address A "Less Perfect" Union, 1781.1788 ADDITIONAL COPIES OF THE USER'S GUIDE: The Constitutional Convention $4.00 each for fewer than 25 The Founders' Achievement $3.00 each for 25 or more copies The AntiFederalist Argument Ratification NOTE: If you are interested in funher information. please contact Project '87, The Bill of Rights (202)483-2512. A City Plan for the Constitution For shipping to multiple addresses. photocopy the form below for each address and remit forms with one payment. Prices include shipping charges in the continental U.S. Addl. The Principle of Federalism tional shipping charges will be applied to orders sent to cities not served by UPS in The Supreme Law of the Land Alaska, and foreign countries according to distance and weight. To Ourselves and Our Posterity

ids Constitution 49 Discussion leaders, writers, teachers, schol -ers and researchers... Many issues covered Civil Liberties and Civil Rights... the meaning of a free press. equal protection under the law, the pub good and individual liberty. Nowyou can get Roots of the Constitution... the classical and enlightenment context and the creation of a modem dootment.

this Constitution National Power... the power to tax and to regulate, the operation of a growing bureaucracy.

inasingle War Powers and the Presidency... to whom does the C,,nstitutior give the power to wage war and formulate hardcover volume foreign policy? 'PLUS: Full Texts... read the original texts of the Constitution, Bill of Rights and other Amendments, plus a Congressional Quarterly Inc. and Project W7 have publisheda chronology of important events m constitutio..1 history. selection of essays on major constitutional issues from rbir Counitutiou. Project W-ri quarterly inagine, supported by the Who should order National Endowment for the I lumanities. DISCUSSION GROUPS SEMINAR LEADERS :hit Couttitutiou: Our &during Legacy STUDENTS LIBRAMANS TEACHERS is organised and indexed as a RESEARCHERS WRITERS HISTORY BUFFS... principal resource for general ...should order using the form below. Mail to: readers about our Constitution. Congressional Quarterly Inc., Dept. 4H 1414 22nd et. N.W., Washington, D.C. 20037

Special preface by James MacGregor Burns r CLIP AND MAIL WITH PAYMENT- Complete "easy-reference" index 0 YES! Iwant a one-stop reference + learning + discussion tool on the U.S. Constitution. Send me _ copies of CO's new 325-page hardcover book Approx. ;25 imps, $12,00 IbisConstitution: Our Enduring Legacy.

C.QISBN OS71874%4111 CO4SBN 0.87187.396e . My oroan1rt:on

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Limited edition Title Phone ( More than just a collection of articles, dui Couttitutiou Our Address Euduring Legacy retains the scope and flavor of the magazine, but gives you these articles and illustrations in a single limited edition Billing address (if different) volume City State ZIP ...._____. The essays give general readers a balanced presentation of how well a documets created in the days of the ham; press and O Check enclosed (SAVE shipping& handling) O Billme (Institutions only. Add handling charges) pamphleteers serves us in an age of electronic media and satellite communication. The book is organized b} major constitutional 1-9 copies-$22.00 ea. 25-49 copies-$18.70 ea. issue, with a crossreferenced index that lets you find the topicyou 10-24 copies-$19.80 ea.50 or more-$17.60 ea. need quick!), and suggested further readings that show you where Handling charge: Add$1.95for first copy, 5% of total order for additional copies. to find more information. Purchase order# enclosed Noted political scientist James MacGregor Burns, cochair of Auth.rizing signature ProjectR7,has written a special preface that unites the themes of the book. Contributors include: DC addressees please add 6% sales tax, Va. t %. oo James MacGregor Burns Richard B. Morris James Oliver Horton Gordon S. Wood Seel to: THIS CONSTITUTION SPECIALOFFER Philip B. Kurland Austin Ranney Congressional Quarterly Inc. Dept.411 1414 22nd Street, N.W. Michael J. Malbin Martin Shapiro Washington, D.C. 20037 54 so this Cons& 'Ion State Bicentennial Commissions and State Humanities Councils

Information included here is current as of November 1986. Additional informati..concerning Bicentennial programs can be obtained also from state and local bar associations, state and local historical societies and state library associations, as well as the State and Local Pro- grams division, Commission on the Bicentennial of the U.S. Constitution, 736 Jackson Place, 1Vashingten, D.C. 20503, telephone. (202) 653- 9808.

ALABAMA California Council for the FLORIDA 208/345-5346 Humanities Alabama Bicentennial Task Force U.S. Constitutional Bicentennial Exec. Director: Thomas 312 Sutter Street, Suite 601 Governor's Office Commission of Florida McClanahan S- State Capitol Francisco, CA 94108 State of Florida 415/331-1474 Montgomery, AL 36130 Supreme Court Bldg. ILLINOIS Exec. Director: James Quay 205/261-7120 Tallahassee, FL 32399 Committee to Commemorate U.S. Contact: Charles Carr COLORADO 904/488-8621 x 35 Constitution in Illinois Exec. Asst. Chairman: Hon. Ben F. Overton 75 East Wacker Drive, #2100 The Colorado Commission on the Committee for the Humanities Contact: Carol Bellamy Chicago, IL 60601 Box A-40 Bicentennial of the U.S. Executive Director 312/7264853 or 312/726-8775 Constitution Birmingham-Southern College Florida Endowment for the Chairman: Richard E. Friedman 6199 South Pike Drive Birmingham, AL 35254 Humanities Contact: Cheryl Niro Larkspur, CO 80118-9724 205/324-1314 P.O. Box 16989 Executive Director 303/681-3053 Exec. Director: Walter Cox Tampa, FL 33687-6989 Illinois Humanities Council Chairman: Roger Alan Walton 813/974-4094 Contact: Esther Marie Capps 618 S. Michigan ALASKA Exec. Director: Ann Henderson Executive Director Chicago, IL 60605 Alaska Commission to Celebrate 312/939-5212 the U.S. Constitution Colorado Endowment for the Hu- GEORGIA Exec. Director Robert Klaus manities PO Box K Georgia Commission on the 1836 Blake Street, Suite 100 Juneau, AK 99811 Bicentennial of the U.S. INDIANA Denver, CO 80202 907/465-3600 Constitution 303/292-4458 Indiana Commission on the Chairman: John Havelock Secretary of State's Office Exec. Director: James Pierce Bicentennial of the U.S. Contact: Randall Burns State Capitol, Room 214 Constitution Alaska Humanities Forum CONNECTICUT Atlanta, GA 30334 Indiana State Library 943 West 6th Avenue, Suite 120 404/656-2869 140 North Senate U.S. Constitution Bicentennial Anchorage, AK 99501 Chairman: Hon. Thomas Marshall Indianapolis, IN 46204 907/272-5341 Commission for the State of Contact: Helen Dougherty 317/232-3692 Exec. Director: Gary Holthaus Connecticut Executive Director Chairman: Hon. Randall Shepard Chairman: Ralph Gregory Elliot Georgia Endowment for the Contact: Ray Ewick, State Librar- ARIZONA Tyler, Cooper and Alcorn Humanities ian City Place-35th Fl. Arizona Commission on the Emory University Indiana Committee for the Hartford, CT 06103-3488 1589 Clifton Road, N.E. Bicentennial of the U.S. 203/522-1216 Humanities Constitution Atlanta, GA 30322 1500 N Delaware Street The Supreme Court of Arizona Connecticut Humanities Council 404/727-7500 Indianapolis, IN 46202 363 North 1st Avenue, Suite A 41 Lawn Avenue Exec. Director: Ronald Benson 317/638-1500 Phoenix, AZ 85003 Wesleyan Station Exec. Director: Kenneth Gladish 602/253-5700 Middletown, CT 06457 HAWAII Chairman: Hon. William A. 203/347-6888 or 347 -3738 Hawaii Bicentennial Commission IOWA Exec. Director: Bruce Fraser Holohan P.O. Box 26 Iowa State Commission on the Contact: Trish Beck Honolulu, HI 96810 Bicentennial of the U.S. DELAWARE 808/531-8031 Arizona Humanities Council Constitution 918 N. Second Street Delaware Heritage Commission Chairman: Vernon F. L. Char, do State Historical Society of Carvel State Office Bldg., 3rd Fl. Esq. Phoenix, AZ 35004 Iowa 820 N. French St. 602/257-0335 Hawaii Committee for the 402 Iowa Ave. Exec. Director: Lorraine Frank Wilmington, DE 19801 Humanities Iowa City, IA 52240 302/652-6662 3599 Waialae Avenue, Room 23 319/338-5471 ARKANSAS Chairman: Robert P. Barnett Honolulu, HI 96816 Chairman: Dr. Joseph Walt Contact: Dr. Claudia L. Bushman 808/732.5402 Contact: Loren Horton Arkansas Endowment for the Hu- Executive Director Exec. Director: Annette Lew Coordinator of manities - Delaware Humanities Forum Bicentennial Projects 1010 West 3rd Street, Suite 102 2600 Pennsylvania Avenue IDAHO Little Rock, AR 72202 Iowa Humanities Board Wilmington, DE 19806 501/372-2672 Constitution Bicentennial Oakdale Campus 302/573-4410 Exec. Director: Jane Browning Commission of Idaho University of Iowa Exec. Director: Henry Hirschbiel State Capitol Iowa City, IA 52242 CALIFORNIA Boise, ID 83720 319/353.6754 DISTRICT OF 208/345-1900 Exec. Director: Donald Drake California Bicentennial Commis- COLUMBIA sion on the U.S. Constitution Chairman: Dennis Harwick 1455 Crenshaw Blvd., Suite 200 D.C. Committee on the Contact: Constance Arana KANSAS Humanities Torrance, CA 90501 Executive Director Kansas Commission on the 1341 G Street, N.W., Suite 306 213/328-1787 Idaho Association for the Bicentennial of the U.S. Washington, D.C. 20005 Chairman: Jane A. Crosby Humanities Constitution Contact: Jeffrey D. Allen 202/347-1732 Room 300, LBJ Building Capitol Building, .nd Floor Exec. Director: Francine Cary Executive Director 650 West State Street Topeka, KS 66612-1590 Boise, ID 83720 913/296-4001

this Constitution 51 Chairman: Hon. Frank Theis Baltimore, MD 21201 Chairman: Hon. Albert L. Rend len NEW JERSEY Contact: Nancy Ingle 301/625-4830 Contact: Joanne Hibdon Constitutional Bicentennial State Coordinator Exec. Director. Naomi Collins Executive Director Commission Kansas Committee for the MASSACHUSETTS Missouri Committee for the do New Jersey :'2,.etary of State Humanities Humanities 125 \Vest State S N305 112 West Sixth St., Suite 210 The Massachusetts Advisory Loberg Bldg. #204 Trenton, NJ 0862f; Topeka, KS 66603 Commission to Commemorate 11425 Dorsett Road 609/9844900 913/357-0359 the Bicentennial of the U.S. Maryland Heights, MO 63043 Chairman: Jane Burgio Exec. Director: Marion Cott Constitution 314/739-7368 Contact: Noreen Bodman State House, Room 259 Exec. Director: Robert Walrond Executive Director KENTUCKY Boston, MA 02133 New Jersey Commission for the U.S. Constitution Celebration 617/727-7200 MONTANA Humanitie! Project Chairman: Hon. Edward F. Montana Constitutional Connec- 73 Easton Avenue Kentucky Department of Hennessey tions Committee New Brunswick, NJ 08901 Education Contact: Margaret Cavanaugh Statehood Centennial Office 201/932-7726 Capitol Plaza Tower Executive Director PO Box 1939, Capitol Station Exec. Director: Miriam L. Murphy Frankfort, KY 40601 Massachusetts Foundation for Helena, MT 59620 502/564-2106 the Htimanities 406/444-1989 NEW MEXICO Chairman: Hon. Alice McDonald 1 Woodbridge Street Chairman: Hon. Frank Haswell New Mexico Diamond Jubilee Contact: Betty H. Seay S. Hadley, MA 01075 Contact: Cheryl Hutchinson and Bicentennial CommissLm Project Director 413/536-1385 Centennial Coordinator 325 Don Gaspar Exec. Director. David Tebaldi Kentucky Humanities Council Montana Commission for the Santa Fe, NM 87503 Humanities 505/827-3800 417 Clifton Avenue MICHIGAN University of Kentucky P.O. Box 8036, Hel !gate Sta. Chairman: Michael Keleher Lexington, KY 40506-0442 Michigan Commission on the Missoula, MT 59807 Contact: Virginia Hendley 606/257-5932 Bicentennial of the U.S. 406/243-6022 Executive Director Exec. Director: Ramona Lumpkin Constitution Exec. Director: Margaret Kings land New Mexico Humanities Council Dept. of Management and Budget 209 Onate Hall LOUISIANA Louis Cass Bldg. 1st Fl. NEBRASKA University of New Mexico Louisiana Commission on the Lansing, MI 48909 Albuquerque, NM 87131 Bicentennial of the U.S. 517/373-1004 No Commission 505/277-3705 Constitution Chairman: Dr. David W. Adamany Contact: Allen Beerman Exec. Director: D. Nathan PO Box 51388 Contact: Ronald Russell, Director Secretary of State Sumner New Orleans, LA 70151-1388 Michigan Council for the State Capitol, #2300 PO Box 94608 504/568-5707 Humanities NEW YORK Chairman: Hon. James Dennis Nisbet Building, Suite 30 Lincoln, NE 68509 Contact: Terry Albritton 1407 S. Harrison Rd. 402/471-2554 New York State Commission on Executive Director East Lansing, MI 48824 Nebraska Commission for the the Bicentennial of the U.S. Constitution Louisiana Committee for the 517/355-0160 Humanities Exec. Director: "-maid Means Lincoln Ctr. Bldg., #422 New York State Museum Humanities Cultural Education Center, The Ten-O-One Building 215 Centennial Mall South #3099 1001 Howard Avenue, Suite 4407 MINNESOTA Lincoln, NE 68508 Albany, NY 12230 New Orleans, LA 70113 Minnesota Commission on the 402/474-2131 Exec. Director: Sarah Rosenberg 518/473-12°9 504/523-4352 Bicentennial of the US. Chairman: Hon. Sol Wachtler Exec. Director: Michael Sartisky Constitution NEVADA Contact: Paul Scudiere 200 Ford Building State Historian MAINE 117 University Avenue Nevada Commission on the New York Council for the Maine Commission to Commemo- St. Paul, MN 55155 Bicentennial of the U.S. 612/296-8997 Constitution Humanities rate the Bicentennial of the 198 R-oadway, 10th Floor U.S. Constitution Co-Chairmen: Hon. Hubert H. Supreme Court, Capitol Complex New York, NY 10038 PO Box 4820, Downtown Station Humphrey HI Carson City, NV 89710 212/233-1131 Portland, ME 04112 Hon. Connie Levi 702/885-5176 Exec. Director: Jay Kapla 1 207/879-4792 Contact: Scott Fride, Director Chairman: Hon. John Mowbray Chairman: Arthur M. Johnson Contact: Leslie B. Gray, Esq. Minnesota Humanities Executive Director NORTH CAROLINA Contact: Rosalyne S. Bernstein, Commission Esq., Program Director 580 Park Square Court Nevada Humanities Committee North Carolina Commission on Maine Humanities Council Sixth and Sibley Streets PO Box 8029 the Bicentennial of the U.S. P.O. Box 7202 St. Paul, MN 55101 Reno, NV 89507 Constitution Portland, ME 04112 612/224-5739 702/784.6587 532 North Wilmington Street 207/773-5051 Exec. Director: Cheryl Dickson Exec. Director: Judith Winzeler Raleigh, NC 27604 Exec. Director: Dorothy Scinvartz 919/733-2050 MISSISSIPPI NEW HAMPSHIRE Chairman: Hon. Robert Jordan III Contact: Gerry Hancock, Director MARYLAND Mississippi Commission for the The New Hampshire Bicentennial Maryland Office for the Bicenten- Humanities Commission on the U.S. Con- North Carolina Humanities nial of the Constitution of the 3825 Ridgewood Rd., Room 111 stitution Committee US. Jackson, MS 39211 Middleton Road 112 Foust Building, UNC-G do Maryland State Archives 601/9826752 Wolfeboro, NH 03894 Greensboro, NC 27412 Fall of Records, Box 828 Exec. Director: Cora Norman 603/5694827 919/334-5325 Annapolis, MD 21404 MISSOURI Chairman: Hon. Russell C. Chase Exec. Director: Brent Glass 301/269-3914 U.S. Constitution Bicentennial New Hampshire Council for the Chairman: Edward C. Papenfuse Commission of Missouri Humanities NORTH DAKOTA Contact: Gregory A. Stiverson State Capitol Building 15 S. Fruit Street North Dakota Constitution Director Room 116-3 Concord, NH 03301 Celebration Commission Maryland Humanities Council Jefferson City, MO 45101 603/224-4071 The Supreme Court of North 516 North Charles St., #201 314/751.5938 Exec. Director: Charles Bickford Dakota

52 J6 this Constitution State Capitol Building 333 Market Street South Dakota Commission on the VIRGIN ISLANDS Bismarck, ND 58505 Ha:risburg, PA 17126-0333 Humanities Virgin Islands Humanities 701/224-2689 717/787.7133 Box 7050, University Station Council Chairman: Hon. Herbert L. Chairman: Hon. Samuel I. Brookings, SD 57007 P.O. Box 1829 Meschke Roberts 605/688.6113 St. Thomas, VI 00801 Contact: Larry Spears Contact: Mitch Akers Exec. Director: John Whalen 809/776.4044 Asst. State Court Adm. Staff Director Exec. Director: David J. Barzelay North Dakota Humanities Pennsylvania Humanities Council TENNESSEE Council 401 N. Broad Street, #818 Tennessee Commission for the WASHINGTON P.O. Box 2191 Philadelphia, PA 19108 Humanities Constitutions Committee Bismarck, ND 58502 215/925-1005 P.O. Box 24767 Washington Centennial 701/663-1948 Exec. Director: Craig Eisendrath Nashville, TN 37202 Commission Exec. Director: Everett Albers 615/320-7001 111 West 21st Avenue/KL-12 COMMONWEALTH OF Exec. Director: Robert Cheatham Olympia, WA 98504 OHIO PUERTO RICO 206/586-0373 TEXAS Northwest Ordinance and U.S. Commonwealth of Puerto Rico Chairman: Robert E. Mack Constitution Bicentennial Commission on the Bicentenni- Texas Committee for the Contact: Caryl Zenker Commission al of the U.S. Constitution Humanities Program Coordinator 1985 Velma Avenue Call Box 22-A, Hato Rey Station 1604 Nueces Washington Commission for the Columbus, OH 43211 Hato Rey, PR 00919 Austin, TX 78701 Humanities 809/763-7319 512/473-8585 614/466-1500 Olympia, WA 98505 Chairman: Dr. Phillip Shriver Chairman: HoVictor M. Exec. Director: James Veninga 206/866-6510 Contact: James C. Miller Pons, Jr. Exec. Director: Hidde Van Duym Executive Director Contact: Carmen L. Navas UTAH Executive Director The Ohio Humanities Council Governor's Committee on Law WEST VIRGINIA Fundacion Puertorriquena de las 760 Pleasant Ridge Avenue and Citizenship U.S. Constitution Bicentennial Humanidades Columbus, OH 43209 110 State Capitol Commission of West Virginia Apartado Postal S-4307 Salt Lake City, UT 84114 Department of Culture and 614/231-6879 San Juan, Puerto Rico 00904 Exec. Director: Charles C. Cole 801/533-5841 History 809/721-2087 Chairman: Brinton Burbidge The Cultural Center Exec. Director Arturo M. Carrion Contact: Donald Cobb OKLAHOMA Capitol Complex Executive Director Charleston, WV 25305 Constitution 200 RHODE ISLAND Utah Endowment for the 304/348-0220 Co-Chairmen: Rhode Island Bicentennial Humanities Contact: Ken Sullivan Dr. Richard Wells Foundation Ten West Broadway Executive Director Political Science Department 189 Wickenden Street Broadway Building, Suite 900 Humanities Foundation of West Oklahoma University Providence, RI 02903 Salt Lake City, UT 84101 Virginia 455 West Lindsay St. 401/861-5656 or 401/272-1776 801/531-7868 Box 204 Norman, OK 73019 Chairman: Dr. Patrick T. Conley Exec. Director: Delmont Oswald Institute, WV 25112 405/325.5910 Rhode Island Commission for the 304/768-8869 Dr. Joseph Blackman Humanities VERMONT Exec. Director: Charles Tulsa Jr. College 463 Broadway Vermont Statehood Bicentennial Daugherty 909 South Boston Providence, RI 02909 Commission Tulsa, OK 74119 401/273.2250 Office of the Governor WISCONSIN 918/587-6561 Exec. Director: Thomas Roberts State House Wisconsin Bicentennial Commit- Oklahoma Foundation for the Montpelier, VT 05602 tee on the Constitution Humanities SOUTH .CAROLINA 802/828.3333 Wisconsin State Bar Association 2809 N.W. Expressway, #500 U.S. Constitution Bicentennial Contact: Garry Schaedel, Director1- J Office Box 7158 Oklahoma City, OK 73112 Commission of South Carolina of Public Information Madison, WI 53707-7158 405/840-1721 do Dept. of Archives and History Vermont Crsucil on the Human- 608/257-3838 or 608/233-8041 Exec. Director: Anita May PO Box 11669, Capitol Station ities and Public Issues Chairman: Hon. Roland Day Columbia, SC 29211-1669 P.O. Box 58 Contact: Philip S. Habermann OREGON 803/734-8591 Hyde Park, VT 05655 Program Coordinator Wisconsin Humanities Committee Governor's Commission on the Chairman: Hon. P. Bradley 302/888-3183 Morrah Exec. 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Washington, #410 SOUTH DAKOTA Contact: Timothy O'Rourke Cheyenne, WY 82002 PortLtd, OR 97204 South Dakota Centennial Commission Executive Director 307/777-5856 503/241-0543 Chairman: Bill Mclivain Exec. Director: Richard Lewis State Library Virginia Foundation for the 800 Governor's Drive Humanities Contact: Becky W. Evans Executive Director PENNSYLVANIA Pierre, SD 57501 University of Virginia 605/773-3131 1939 Ivy Road Wyoming Council for the Commonwealth Commission on Chairman: Kay Jorgensen Charlottesville, VA 22903 Humanities the Bicentennial of the U.S. Contact: David Martin 804/924-3296 Box 3972-University Station Constitution Executive Director Exec. Director: Robert Vaughan Laramie, WY 82071 do Pennsylvania Department of 307/766-6496 Education Exec. Director: Dennis Frobish 57 this Constitution ss Project'87

The implementation of Project '87 has been di- and those of others, both students and the public vided into three distinct but interrelated stages. alike will come to a greater awareness and com- projea '87 is a joint undertaking of the Ameri- Stage I, devoted to research and scholarly ex- prehension of the American Constibtion. can Historical Association and the American changes on the Constitution, has been underway Core support for Project '87 comes from the Wil- Political Science Association. It is dedicated tofor the past sever!! years. The Project has awardedli= and Flora Hewlett Foundation. Additional -commemorating the Bicentennial of the United fifty-one research grants and fellowships and sup- grants for specific programs have been provided States Constitution by promoting public under- ported five major scholarly conferences dealing by the National Endowment for the Humanities, standing and appraisal of this unique document. with various aspects of the Constitution. Activities which funds the magazine, and by the Andrew W. The Project is directed by a joint committee of in connection with Stage IIteaching the Constitu-Mellon Foundation, the Lilly Endowment, Inc. of historians and political scientists which is chaired tion in schools and collegesbegan in 1980, and Indianapolis, Indiana, the Rockefeller Foundation, by two scholars of international reputationPro- Project '87 is now implementing Stage 111, pro- the Ford Foundation, CSX Corporation, the Exxon fessor Richard B. Morris of Columbia University grams for the public designed to heighten aware- Education Foundation and the AT&T Foundation. and Professor James MacGregor Burns of Williamsness of the Constitution and to provoke informed For further information, write: Project '87, 1527 College. Warren E. Burger, retired Chief Justice of discussion on constitutional themes. New Hampshire Avenue, N.W., Washington, D.C. the United States, serves as Honorary Chairman of It is the hope and expectation of the Project's 20036. Telephone: (202) 483-2512. Project '87's Advisory Board. governing committee that, through its activities

Project '87 U.S. Postage 1527 New Hampshire N.W. PAID Washington, D.C. 20036 Permit No. 2197 NonProfit Org. Richmond, VA

58 ...do ordain and establisb tbisConstitution for the UnitedStatesofAnierica.

6t) The Constitution of the United States of America

We the People of the United States, in Order to form a more perfect Union, establish Justice, insuredomestic Tranquility, provide for the common defence, promote the general Welfare, andsecure the Blessings of Liberty to ourselves and our Posterity, DO ordain and establish this Constitution for the United States of America.

ARTICLE I SECTION 1. All legislative Powers herein granted shall be vested in a Congress of the United States, whichshall consist of a Senate and House of Representatives.

SECTION 2. The House of Representatives shall be composed of Members chosenevery second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of themost numerous branch of the State Legislature. No person shall be a Representative who shall not have attained to the Age of twenty five Years, and beenseven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shallbe chosen. [Representatives and direct Taxes shall be apportioned among the several States whichmay be included within this Union, according to their respective Numbers, which shall be determined by addingto the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifthsof all other Persons.' The actual Enumeration shall be made within three Years afterthe first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Numberof Rep- resentatives shall not exceed one for every thirty Thousand, but each State shall have at Leastone Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse thret,Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New York six, New Jerseyfour, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgiathree. When vacancies happen in the Representation from any State, the Executive Authoritythereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers; and shall have thesole Power of Impeachment.

SECTION 3. The Senate of the United States shall be composed of two Senators from each State, [chosenby the Legislature thereof,2 for six Years; and each Senator shall haveone Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be dividedas equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Classat the Expiration of the sixth Year, so that one third may be chosen every second Year; [and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, The Executive thereof may make temporary appointmentsuntil the next Meeting of the Legislature, which shall then fill such Vacancies.2 No Person shall be a Senator who shall not have attained to the Age of thirty Ycars, and been nine fears a Citizen of the United States, and who shall not, when elected, bean Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shallhave no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a Presidentpro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for thatPurpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: Andno Person shall be convicted without the Concurrence of two thirds of the Memberspresent. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualificationto hold and enjoy any Office of honor, Trust or Profit under the United States: but the Partyconvicted shall nevertheless be lia- ble and subject to Indictment, Thal, Judgment and Punishment, accordingto Law. Continued on page 52

1. This clause has been changed by the 14th Amendment. 2. These clauses have been changed by the 17th Amendment.

Text as prepared by the U.S. Senate Republican Policy Committee, Washington, D.C., 1986.

61 1

f . do ordain and estabfisb tO is Constitution for unitedStatesofAmerica.

A Bicentennial Chronicle No. 15 Summer, 1987

Special Issue on the Constitutional Convention 2

The Origins of the Constitution 4 by Gordon S. Wood The Philadelphia Convention and the Development of American 12 Government: From the Virginia Plan to the Constitution by Pauline Maier Society and Republicanism: America in 1787 20 by James A. Henretta

12Documents New Documents, New Light on the Philadelphia Convention 27 by James H. Hutson

The Achievement of the Framers 33 by Henry Steele Commager "Outcast" Rhode Island) ;le Absent State 34 by John P. Kaminiski

',rho Was Who in the Constitutional Convention 29 by Margaret Horsnell 20 The-Constitution of the United States inside front cover A Daybook for 1787: July 9, 1787 to July 13, 1787 42

A Syllabus: 46 The Fabrication of the American Republic, 1776-1800 by Jack P. Greene

Bicentennial Gazette 50 Directory of Bicentennial Organizations

From the Editor 4't is expedient that on the second Monday in May next a convention this Constitution of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation ...." So decided the Confederation Congress on February 21, 1787. The delegates, however, did not follow this instruction precisely. They did not published by Project '87 of the meet until May 25 and when they did, they did not confine themselves to American Historical Association revising the Articles of Confederation. They drafted an entirely new and the American Political Science constitution, one that has governed this country for two hundred years. Association In this summer of 1987, this Constitution honors the Bicentennial of that constitutional convention with an issue that focuses on the anteced- James MacGregor Burns and ents, the context and the outcome of its deliberations. Gordon S. Wood, in Richard B. Morris, co-chairs "The Origins of the Constitution," explores the problems of the national and state governments that produced movements for reform in the 1780s. Executive Editor Pauline Maier, in "The Philadelphia Convention and the Development of Sheilah Mann, Director, Project '87 American Government: From the Virginia Flan to the Constitution," Managing Editor describes the deliberations that brought forth the Constitutionits evolu- Cynthia Harrison, Deputy Director, tion from the preliminary plan offered by the Virginia delegation to the project '87 final document. James A. Henretta follows with a portrait of the social and economic context of the Convention in "Society and Republicanism: Editorial Assistant America in 1787." He shows the distinct perspectives of artisans, farmers, Jean Walen women and black Americans on the political events of the time and points Administrative Assistant out that the tensions existing between Americans became imbedded in the Sally Hoffman frame of government. For the "Documents" section, James H. Hutson offers a view of America Design Director in the 1780s through recently discovered original documents of the Charles S. Snyder delegates to the Constitutional Convention. Those who attended the Convention were at once intrigued by the demonstration of a new mode of Photograp:tic Research transportationthe steamboatand appalled by the stoning of a "witch" Rebecca Hirsh in the streets of Philadelphia that same summer. Other documents give us Circulation Manager insight into what the delegates were thinking as 'ley crafted the Constitu- Judy Caruthers tion. The vignettes and photographs in Margaret Horsnell's essay, "Who Was Editorial Board Who in the Constitutional Convention," highlight the contributions of Milton Klein (Chair), Department some of the Convention's more notable figures. The events of one wk- -!I( of History, University of during the summer the Convention met, July 9 to July 13, are excerpted Tennessee , from A Daybook for 1787 put together by the historians at Independence Milton C. Cummings, Jr., National Historical Park. John Kaminiski explains why one stateRhode Department of Political Science, Islandstayed away from the Federal Convention, in " 'Outcast' Rhode Johns Hopkins University Islandthe Absent State." Margaret Horsnell, As a summation, Henry Steele Commager steps back and looks at the Department of History, work of the whole group in "The Achievement of the Framers." American International College A syllabus on the founding period that can be used for adult reading/ James 0. Horton, discussion groups in many settings is also featured in this issue. This Department of History, seven-part list of readings by Jack P. Greene is called "The Fabrication of The George Washington the American Republic, 1776-1800." The Bicentennial Gazette is a guide to University, and Afro-American national organizations planning programs and producing materials for the Communities Project, Bicentennial celebration. Smithsonian Institution The text of the Constitution, the subject of this commemoration, begins Frank J. Sorauf, on the inside front cover and continues on page 52. Department of Politico! Science, University of Minnesr. Richard H. Wilson, In September 1983, this Constitution inaugurated its discussion of the Secondary Social Studies Constitution by examining "Thirteen Crucial Questions" about the Consti- Coordinator, Montgomery tution. Each issue since then has -.tighlighted one of those questions. It is County (MD) Public Schools fitting to offer a consideration of which "crucial questions" are likely to confront the United States in the next century and we will do so next

2 63 this Constitution rsaryof theConstitutionalConvention

summer in issue no. 18 of this Constitution. We invite the readers of thisConstitution to participate in this Joint Committee discussion by sendinga brief letter identifying a constitutional issueand the reasons for its importance in James MacGregor Burns, Co-Chair, the next hundred years. Addressyour Department of Political Science, response to: Issues Survey, this Constitution,1527 New Hampshire Williams College Avenue, N.W., Washington, D.C.20036. Submissions become theproperty Richard B. Morris, Co-Chair, The of Project '87 and will not bereturned. We may select quotations fromthe Papers of John Jay, Columbia letters to highlight the report University on the survey. Responses must be received Lucius J. Barker, Department of by August 1, 1987. Political Science, Washington University, St. Louis Herman Belz, Department of History, University of Maryland 40" Walter F. Berns, Resident Scholar, American Enterprise Institute Patricia Bonomi, Department of History, New York University Richard L. Bushman, Departmentof History, University of Delaware Beverly B. Cook, Department of Political Science, University of t, Wisconsin, Milwaukee A Roger H. Davidson, Congressional 0 A Research Service, Library of I) 0 4 Congress Don Fehrenbacher, Department of History, Stanford University Joel B. Grossman, Department of 6.."" Political Science, University of Wisconsin, Madison Harold M. Hyman, Department of -...11 History, Rice University 1 11111 II 111f11U11I EI 1 Linda K. Kerber, Department of ta tiii111:41; ii:41111MM HG iAi History, University of Iowa I Walter Murphy, Department of Politics, Princeton University Mary K. B. Tachau, Department of Thirteen Enduring History, University of Louisville James S. Young, Department of Constitutional Issues Political Science, University of Virginia Samuel R. Gammon, Executive Director, American Historical PTIMEMinv Association 111111111111111111111111111111111111111111111 .J.-' Thomas E. Mann, Executive Director, American Political Science Association Advisory Board National PowerLimits and The Rights of Women Under Potential Warren E. Burger, Honorary Chair- the Constitution man; Birch Bayh; Griffin B. Bell; Mary Federalismthe Balance The Rights of Ethnic and F. Berry; Richard Bolling; John Brade- between Nation and State Racial Groups Under the mas; Joan R. Challinor; Robert L. The JudiciaryInterpreter of Constitution Clare, Jr.; Lawrence A. Cremin;Thom- the Constitution or Shaper of as E. Deacy, Jr.; Kraft W. Eidman; Wil- Presidential Power in Wartime fred Feinberg; John T. Fey; RobbenW. Public Policy and in Foreign Affairs Fleming; Alan Geyer; Ruth Bader Civil Libertiesthe Balance The Separation of Powers and Ginsburg; Fred P. Graham; Orrin between Government and the the Capacity to Govern Hatch; A. E. Dick Howard; ShirleyM. Individual Avenues of Representation Hufstedler; John Jay Iselin; Harry W. Jones; Amalya Lyle Kearse; EdwardM. Criminal PenaltiesRights of Property Rights and Economic Kennedy; Francis R. Kirkham; Edward the Accused and Protection of Policy H. Levi; A. Leo Levin; Frank J. Mac- the Community Constitutional Change and chiarola; Robert McClory; Bruce K. Equalityits Definitionas a Flexibility MacLaury; Charles McC. Mathias, Jr.; Constitutional Value Paul J. Mishkin; Joseph A. Pechman;J. W. Peltason; Wilson Riles; Peter W. Rodino, Jr.; Paul Simon; Strom Thur- mond; Laurence H. Tribe; PatriciaM. Wald. Charles Aian Wright

this Constitution 64 3 f 01111111161111118MENAll The Origins of theConstitution by GORDON S. WOOD

When did the story of the Con- seen achievement the Constitution cifically forbade the separate states stitution begin? Some might of 1787 was. We take a strong na- to conduct foreign affairs, make say it began over 2500 years tional government so much for treaties, and declare war. All travel ago in the city-states of ancient granted that we can scarcely under- restrictions and discriminatory stand why the American Revolu- trade barriers between the states Greece. Others might place its be- of ginnings nearly three-quarters of a tionaries of 1776 did not create the were eliminated, and the citizens millennium back in the fields of Constitution at once. But in 1776 each state were entitled to the Runnymede. Still others might say virtually no American contemplat- "privileges and immunities" of the the Constitution had itsorigins ed something like the Constitution citizens of all states. When we com- three centuries or so ago during the of 1787. No one in 1776 even imag- pare these achievements with what tumultuous years of the seven- ined for Americans a powerful con- the present-day European nations tinental-wide national government are struggling to attain in their own teenth-century English revolutions. continental union, we can better Or others, more patriotic perhaps, operating directly on individuals. might date the beginnings of the The colonists in the British empire appreciate what an extraordinary Constitution from events inthe had experienced enough abuses accomplishment the Articles repre- Western Iiunisphere, from the from far-removed governmental sented. Mayflower Compact, the Massachu- power to make them leery of creat- Despite the notable strength of setts Charter of 1629, or from any ing another distant government. this Confederation, however, it was number of charters and constitu- And besides, the best minds of the clear that it was something less tional documents that the colonists eighteenth century, including Mon- than a unitary national government. tesquieu, said that a large continen- Under the Articles the crucial pow- resorted to during the first century and and a half of American history. tal-sized republic was a theoretical ers of commercial regulation More likely, the story of the Consti- impossibility. In 1776 it was obvi- taxationindeed, all final lawmak- tution might begin with the imperial ous to all Americans that their cen- ing authorityremained with the crisis and debate of the 1760s. It is tral government would have to be a states. Congressional resolutions just possible that the forty years confederation of some sort, some were only recommendations to be between 1763 and 1803 in America sort of league or alliance of the left to the states to enforce. And were the greatest era in constitu- thirteen independent states. The Ar- should there be any doubts of the tionalism in modern Western his- ticles of Confederation created decentralized nature of the Confed- tory. Not only did Americans estab- such a central government. eration, Article 2 stated bluntly that lish the modern conception of a "each State retains its sovereignty, Confederation freedom and independence, and ev- constitution as a written document right, defining and delimiting the powers ery power, jurisdiction, and The Articles of Confederation which is not by this confederation of government, but they also made expressly delegated to the United a number of other significant con- were our first national constitution. stitutional contributions tothe Proposed by the Continental Con- States, in Congress assembled." world, including the device of a gress in 1777, they were not ratified The "United States of America" had unfamiliar convention for creating and amend- by all the states until 1781. Al- a literal meaning that is ing constitutions, the process of though we today pay very little at- to us today. The Confederation was popular ratification of constitu- tention to the Articles and can hard- based on the equal representation tions, and the practice of judicial ly take them seriously, at the time of each state in the Congress. It was they were a remarkable achieve- less a single government than it was review by which judges measure It ordinary legislation against the fun- ment. The Articles created a much a treaty among sovereign states. damental law of the constitution. stronger federal government than was intended to be and remained, During these brief forty years of many Americans expected; it wasin as Article 3 declared, "a firmleague great constitutional achievements fact as strong as any similar repub- of friendship" among states jealous between 1763 and 1803 the story of lican confederation in history. Not of their individuality. Not only rati- the Constitution of 1787 is only a only were substantial powers con- fication of the Articles of Confeder- chapter. But it is a crucial and sig- cerning diplomacy, the requisition- ation but any subsequent amendment of them required the consent nificant chapter. ing of soldiers, and the borrowing It is hard for us today to appreci- money granted to the Confedera- of all the states. ate what an extraordinary, unfore- tion Congress, but the Articles spe- As a confederation the United

this Constitution 4 6 5 4.) Va s

. 6

A Massachusetts blacksmith resists a writ demanding his assets In .dyment of a debt, an example of the conflict throughout the states alter the Revolution.From The American Past by Roger Butterfield. C 1947. 1957 by Roger BKI2rfiell Reprinted by pomissin of Harold Matson Company Inc.

.1 C4 0 66 5 It is hard for us today to appreci ate what an extraordinary unforeseen achievement the Consti- tution of 1787 was.

States achieved a good deal, includ- .iatter. To be sure, there was an the country faced no such emergen- ing the winning of the war and economic depression in 1784-85 cy." Was the movement for the Con- independence from Great Britain. caused by the buying spree and the stitution something of a fraud with- But scarcely 0.half dozen years overextensions of credit following out justification in the social and after the final ratification of the the war, but by 1786 the country economic reality of the day? Articles in 1781, the Confederation was coming out of it and people But then we have all those de- was virtually moribund and nearly were aware of returning prosperity. spairing statements by Americans every American was calling for its Commerce was confused and disin the 1780s declaring that America reform. The Confederation govern- rupted, but the commercial outlook was in the midst of a crisis more ment was not adequate to the de- was far from bleak. American mer- serious than anything experienced mands of the 1780s; a more power- chants were pushing out in every during the darkest days of the war. ful central government was needed. direction in search of markets =id Many believed that America's great The calling of the Philadelphia Con- were sailing even as far away as experiment in republicanism was in vention in 1787 and the new Consti- China. The 1780s do not seem to be danger and that America's "vices" tution were the results. a time of crisis; they were in fact a were plunging the nation into It seems to be a simple story, but time of unprecedented exuberance "ruin." The enlightened Philadel- it is not. For despite a general dis- and expansion. The American pop- phia physician Benjamin Rush went satisfaction with the Articles by ulation grew as never before (or so far as to say that Americans 1786-87 and a general willingness since), and more Americans than were on the verge of "degenerating to add to the powers of Congress, ever were off in pursuit of happi- into savages or devouring each oth- the Constitution that was created in ness and prosperity. "There is not er like beasts of prey." Even the 1787 was not what most people upon the face of the earth a body of sober and restrained George Wash- expected. The new federal govern- people more happy or rising into ington was astonished at th( ment was not simply a stronger consequence with more rapid changes the few years since 1776 league of friendship with some ad- stride, than the Inhabitants of the had produced: "From the high ditional powers granted to the Con- United States of America," the sec- ground we stood upon, from the gress. It was a radically new gov- retary of the Continental Congress plain path which invited our foot- ernment altogether :,nethat Charles Thomson wrote Thomas steps, to be so fallen! so lost! it is utterly transformed the structure of Jefferson in1786. "Population is really mortifying." central authority and greatly weak- increasing, new houses building, How can we explain such excited ened the power of the states. The new lands clearing, new settle- and despondent statements state- Constitution of 1787 created an ments forming, and new manufac- ments that can be multiplied over overarching national republic that turers establishing with a rapidity and over? What had happened? operated on individuals directly; its beyond conception." The general Could Americans, so confident in creation was inconceivable a de- mood was optimistic and expec- 1776, have lost their nerve so quick- cade earlier. What had happened? tant. ly? Could any problems with the What could have changed American No wonder then that many his- Articles of Confederation, with the thinking so dramatically? Given the torians have doubted that there was weaknesses of the union, have Americans' loyalty to their states anything really critical happening in brought forth such fearful hand- and their deep-rooted fears of cen- the society. Perhaps the critical pe- wringing? Explaining the sense of tralized governmental authority, ex- riod, wrote Charles Beard in his An crisis in the 1780s and hence the plaining the Constitution of 1787 is Economic Interpretation of the movement for the Constitution re- not as easy as it looks. Constitution published in1913, quires something more than just Some Americans in the 1780s was not really critical after all, "but detailing the defects of the Confed- talked about a crisis in the United a phantom of the imagination pro- eration Congress. Such defects, States, and historians have seized duced by some undoubted evils however serious, could hardly ac- upon this talk and labeled the 1780s which could have been remedied count for the pervasive sense of "the Critical Period of American without a political revolution." Per- crisis. History." Yet documenting a real haps the crisis, said Jackson Turner There are in fact two le.vels of crisis in the society, a crisis suffi- Main in his study of the Antifeder- explanation for the Constitution, cient to justify the radical change of alists in 1961, was only "conjured two different sets of r .ablems, two government in 1787, is not a simple up" uy a few leaders since "actually distinct reform me .ements in the 7 6 this Constitution z---A ',-,. --.Av.-- -,z4e1POINIMINF4-*--

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Fort Oswego on Lake Ontario, one of the outposts when the British maintained tro4-s in violation of the 1783 Treaty of Paris. AmericanAntiquarian Society.

1780s that eventually came together allotted contributions to the central at the expense of the militia and to form the Convention of 1787. government. The Congress stopped promised pensions to the Continen- One operated at the national level paying interest on the public debt. tal army officers. They reorganized and involved problems of the Arti- The Continental army was smolt:et.- the departments of war, foreign af- clesf Confederation. The other ing with resentment at the lack of fairs, and finance in the Congress ope- ?,d, at the state level and in- pay and was falling apart through and replaced the committees that vc-1, ed droblems in the state legisla- desertions and even outbreaks of had been running these depart- tures. The national problems ac- mutiny. All these circumstances ments with individuals. count for the ready willingness of were forcing varimis groups, in- The key man in the nationalists' people in 1786-87 to accede to the cluding the army and merchant and program was Robert Morris, a convening of delegates at Philadel- creditor interests centered in the wealthy Philadelphia merchant phia. But the state problems, prob- mid-Atlantic states, to seek to add who was made superintendentG. lems that went to the heart of to the powers of the Congress. They finance and virtual head of the Con- America's experiment in republi- tried to strengthen the Congress by federation in 1781. Morris under- canism, account for the radical and broadly interpreting its enumeratP.d took to stabilize the economy and unprecedented nature of the feder- powers, by directly amending the to involve financial and commercial al government created in Philadel- Articles, and even by threatening groups with the central govern- phia. military force against those states ment. He persuaded the Congress that did not fulfill their obligations National Problems to nnommend to the states that to Col.jess. paper-money laws be repealed and A shift in congressional leader- to require that the states' contribu- The weaknesses of the Articles of ship in the early 1780s demonstrat- tions to the general expenses be Confederation were apparent early, ed the increasing influence of these paid in specie (gold or silver coin) even before the Articles were for- concerned groups. Older popular and he sought to establish a bank to mally ratified in 1781 By 1780 the radicals such as Richard Henry Lee make the federal government's war was dragging on longer than of Virginia and Samuel Adams of bonds more secure for investors. anyone had expected, and the sky- Massachusetts were replaced by Carrying out this nationalist pro- rocketing inflation of the paper such younger men as James Madi- gram depended on amending the money that was being used to fi- son of Virginia and Alexander Ham nance it was unsettling commerce Articles so as to grant the Confeder- ilton of New York. These new lead- kin the power to levy a 5 percent and business. The Articles barred ers were more interestedin , on imports. Once the Congress congressional delegates from serv- authority and stability than in plpu- .ga revenues independent of the ing more than three years inany lar liberty. DisLusioned by the Con- . s, the Confederation could pay six-year period, and leadership in -Aeration's ineffectiveness, these Oebts and would become more the Confederation wan changeable nationalists in the Congress set :tractive to prospective buyers of and confused. The states were ig- about reversing the localist and its bonds. Although Morriswas able noring congressionalresolutions centrifugal thrust of the Revolution. to get the Congress to charter the and were refusing to supply their Fey strengthened the regular army Bank of North America, the rest of t. this Constitution 68 7 the nationalists' economic propos- can people, "the eyes of the whole one-third of the Confederation's se- als failed to get the consent of all world are turned upon them." Upon curities had been converted into the states. In 1782 congressional the willingness of the states to state bonds, thus creating a vested efforts to get the states to approve grant sufficient power to Congress interest among public creditors in the 5 percent import amendment to fulfill its needs and preserve its the sovereignty of the individual foundered first on Rhode Island's credit depended whether the Unit- states. Under these circumstances refusal and then on Virginia's. When ed States would "be respectable the influence of those, in Alexander a compromise attempt in 1783 to and prosperous, or contemptible Hamilton's term, "who think conti- get a revenue for Congress also and miserable, as a nation ... nentally" rapidly declined, and the came to nothing, those who hoped whether the revolution must ulti- chances of amending the Confeder- to reform the Articles :. ,carne in- mately be considered as a blessing ation piecemeal declined with creasingly discouraged. or a curse ... not to the present age them. After the victory at Yorktown in alone" but also to "unborn mil- The Confederation's inability to October 1781 and the opening of lions." regulate its international commerce peace negotiations with Great Brit- Yet news of the peace treaty with led to even more confLiion and ain, the states rapidly lost interest Great Britain shattered much of frustration. Both northern mer- in the Congress. Some nationalists this wartime unionist sentiment, chants and southern planters need- even sought to use the unrest in the Washington'spleasfor ed to penetrate the markets of the army to further their cause. The trengthening the central govern- European empires with American prospect of the Congress' demobi- ment were smothered by the reas- produce. Seuthern agrarian leaders lizing the army without fulfilling its sertion of traditional state loyalties such as Jefferson and James Madi- promises of back pay and pensions and jealousies. By December 1783 son feared that if the European created a crisis that brought the the Congress, in Thomas Jefferson's mercantilist states prohibited United States as close to a military opinion, had lost most of its useful- American fanners from selling their coup d'etat as it has ever been. In ness. "The constant session of Con- surplus crops freely in their em- March 1783 the officers of Washing- gress," he said, "can not be neces- pires, American society would be ton's army, encamped at_Newburgh sary in time of peace." After decisively affected. Not only would on the Hudson River, issued an clearing up the most urgent busi- the industrious character of the adaress to the Congress concerning ness, the delgates should "separate American farmers be undermined, their pay and actually considered and return to our respective states, but if Americans could not sell some sort of military action against leaving only a Committee of the abroad the United States would be the Confederation. Only when states," and thus "destroy the unable to pay for the manufactured Washington personally intervened strange idea of their being a perma- goods imported from Europe, and and refused to support a movement nent body, which has unaccount- therefore would have to develop that he said was designed "to open ably taken possession of the heads lai.ge-scale manufacturing for itself. the floodgates of civil discord, and of their constituents." This industrialization would in turn deluge our rising empire in blood" Congressional power, which had create in America the same mob- was the crisis averted. been substantial during the war ridden manufacturing cities and the Before resigning his commission years, now began to disintegrate. same corrupt, rank-conscious and as commander-in-chief, Washington The congressional delegates independent societies that existed in in June 1783 wrote a circular letter creasingly complained of how diffi- Europe. Under these conditions the to the states, which he called his cult it was just to gather a quorum. independent farmer-citizenry which "legacy" to the American people. In The Congress could not even agree sustained American republicanism it he recommended the creation of on a permanent home for itself: it could not long endure. "a supreme power to regulate and wandered from Philadelphia to Yet the mercantilist empires of govern the general concerns of the Princeton, to Annapolis, to Trenton, the major European nations re- confederated republic." This was and finally to New York City. The mained generally closed to the new the moment, said Washington, "to states reclaimed their authority and republic in the 1780s. John Adams give such a tone to our federal began taking over the payment of in Britain and Jefferson in France government as will enable it to an- the federal debt that many individ- made strong diplomatic efforts to swer the ends of its institution." It uals had earlier hoped to make the develop new international commer- was a time of testing for the Ameri- cement of union. By 1786 nearly cial relationships based on the free

e 69 this Constitution The national problems account for the ready willingness of people in 1786-87 to accede to tile convening of delegates at Philadelphia. But the state problems, problems that went to the heart of America's experiment in republicanism, account for the radical and unprecedented nature of the federal government created in Philadelphia.

exchange of goods, but these ef- property that had been confiscated gress in August 1786 Jay defended forts failed. The French refused to luring the Revolution be restored, his treaty on the grounds that it was take as much American produce as and that neither side would make the best the United States could get had been expected, and Britain ef- laws obstructing the recovery of from Spain, at least until it "shall fectively closed its markets to com- prewar debts. When the states become more really and truly a petitive American goods while re- flouted these treaty obligations, the nation than it at present is." capturing American consumer impotent Confederation could do By 1786 these problems made markets for its own products. The nothing; and therefore British revision of the Articles of Confeder- Confederation lacked the authority troops remained in Detroit, Niagra, ation inevitable. Even those who to retaliate with its w n trade regu- Oswego and othe* posts within later opposed the Constitution ac- lations, and state and sectional jeal- American territory. knowledged that the Confederation ousies blocked several attempts to Britain was known to be plotting Congress needed additional pow- grant the Congress a restricted with le Indians and encouraging ers. Reform of the Articles by piece- power over commerce. The Confed- separatist movements in the North- meal amendment had run afoul of eration Congress watched helpless- west and in the Vermont border- the jealousies of one state or anoth- ly as the separate states attempted lands, and Spain was doing the er, and many were now looking to pass conflicting navigation acts same in the Southwest. Spain in toward some sort of convention of of their own. By the mid-1780s Con- fact refused to recognize American all the states as a solution. necticut was laying even heavier claims to the territory between the LIthough some like Hamilton had duties on goods from Massachu- Ohio River and Florida. In 1784, in suggested the calling of a national setts than on those from Great Brit- an effort to influence American set- convention as early as 1780, the ain. tlers moving into Kentucky and events in the mid-eighties that led The Confederation felt its lack of Tennessee, Spain closed the Missis- to the Philadelphia Conventic.. ac- power internationally as much as it sippi River to American trade. Many tually began as continuations of did domestically. Abroad the repu- of the Westerneis were ready to earlier attempts to strengthen the tation of the United States dwin- deal with any government that union within the framework of the dled as rapidly as did its credit. The could ensure access to the sea for Articles. The desire to grant Con- Dutch and French would lend mon- their agricultural produce. As gress the power to regulate foreign ey only at extraordinary rates of Washington noted in1784, they trade was the stimulus. In 1785, at a interest. Since American ships now were "on a pivot. The touch of a conference at Mount Vernon, Vir- lacked the protection of the British feather w ould turn them any way." ginia and Maryland resolved a num- flag, many of them were seized by In 1785-86, John Jay, a New ber of disputes concerning the navi- corsairs from the Muslim states of Yorker and the secretary of foreign gation of Chesapeake Bay and the North Africa, and their crews sold affairs, negotiated a treaty with the Potomac River. This conference as slaves. The Congress had no Spanish minister to the United suggested the advantages of inde- money to pay the necessary tribute States, Diego de Gardoqui. By the pendent state action and led to Vir- and ransoms to these Barbary pi- terms of this agreement, Spain was ginia's invitation to the states to rates. opened to American trade in return meet at Annapolis in 1786 "to con- 'n the late-eighteenth century for America's renunciation of its sidzr and recommend a federal ph i world of hostile empires, it was right to navigate the Mississippi for for regulating commerce." Some even difficult for the new republi- several decades. Out of fear of be- hoped tc make this Annapolis meet- can confederacy to maintain its tering denied an outlet to the sea in ing a prelude to a full convention ritorial integrity. Britain refused to the West, the southern states pre- for amending the Articles. Madison send a diplomatic niinister to the vented the necessary nine-stat2 ma- was one of these, "yet," as he told United States and ignored its treaty jority in the Congress from agreeing Jefferson in August 1786, "I despair obligations to evacuate its military to the treaty. But the willingness of so much of its accomplishment at posts in the Northwest, claiming a majority of seven states to sacri- the present crisis that I do not that the United States had not hon- fice western interests for the sake extend my views beyond a Com- ored its own commitments. The of northern merchants aroused mercial Reform. To speak the truth treaty of peace had specified that long-existingsectional jealousies I air despair even of this." But the Confederation would recom- and threatened to shatter the with Iruy delegates from five states mend to the states that loyalist Union. In an address to the Con- in attendance, the Annapolis meet- this Constitution 70 ing had little choice but to risk calling anu.her convention. The stakes now were higher and this convention would have to be con- cenied with more than matters of commercial regulation. After only two days of discussion, the Annapo- lis delegates issued a report drafted by Hamilton requesting the states to elect delegates to a second convention to be held in Philadelphia on the second Monday in May of f 4:` the following year "to devise such further provisions as shall appear to them necessary to render the constitution of the federal govern- ,J? xt;" ment adequate to the exigencies of the Union." After seven states agreed to send delegates to Phila- delphia, the Confederation Con- gress belatedly recognized this independent state action and in February 1787 authorized the approaching convention to meet "for the sole and express purpose of revising the Articles of Confedera- tion."

Although by 1787 nearly all of Engraving of George Washington by Alexander Campbell. Colinial Williamsburg Foundation. America's political leaders agreed that some reform of the Articles was necessary, few expected what and resultant Constitution of the American society, and these fac- the Philadelphia Convention even- Philadelphia Convention. tional interests were demanding tually created. For the new national and getting protection and satisfac- government framed in 1787 went State -Politics tion from state legislatures that way beyond what the weaknesses were elected annually (an innova- of the Articles demanded. Granting By the mid-1780s a number of tion in most states) by the broadest the Congress the authority to raise American leaders were alarmea by electorates in thn world. Every- revenue, to regulate trade, to pay politics within the states. The Revo- where in the state electioneering off its debts, and to deal effectively lutionaries in 1776 had placed great and the open competition for office in international affairs did not re- faith in the ability of the state legis- increased, and new petty uneducat- quire the total scrapping of the Arti- latures to promote the public good. ed entrepreneurs like Abraham cles and the formation of an ex- The new Revolutionary state con- Yates, a part-time lawyer and shoe- traordinary powerful and distant stitutions had made the state legis- maker of Albany, and William Find- national government the like of latures more representative, had ley, a Scotch-Irish ex-weaver of which was beyond an' one's imagi- greatly increased their size, and had wes am Pennsylvania, used popu- nation a decade earlier. The new granted enormous power to them. lar electoral appeals .0 vault into Constitution of 1787 therefore can- But in the years after 1776 the state political leadership in the state leg- not be explained by the obvious legislatures did not fulfill the Revo- islatures. and generally acknowledged de- lutionaries' initial expectations. The The rapid turnover of seats and fects of the Articles of Confedera- Revolution unleashedacquisitive the scrambling among different in- tion. Something more serious lay and commercial interests that no terests made lawmaking seem cha- behind the proposals deliberations, one had quite realized existed in otic. Laws, as the Vermont Council

10 71 .;.is Constitution Abuses of power by the state legislatures,more than the defects of the Ar- ticles of Confederation, were the realsource of the crisis of the 1780s.

of Censors said in 1786, were "al- Such tyranny struck at the heart of By 1787 many expected the Phila- teredrealtered---made better America's experiment in republi- delphia Convention to solve not made worse; and kept in such a canism, for, said Madison, it only the problems of the Articles of fluctuating position that persons in brought "into question the funda- Confederation but also the prob- civil commission scarce know what mental principle of republican Gov- lems of state politics. Two different is law." In fact, noted James Madi- ernment, that the majority who rule and hitherto separate reform move- son, more laws were enacted by the in such governments are the safest ments now came together to save states in the decade following Inde- Guardians both of public Good and both the Congress from the states pendence than in the entire colonial private rights." and the states from themselves. At periodall in response to pres- These abuses of power by the the national level, various groups sures from shifting factions. Madi- state legislatures, more than the public creditors, merchants, diplo- son could only conclude sadly that defects of the Articles of Confeder- matic OffiCW7 had long been try- "a spirit of locality" in the state ation, were the real source of the ing to amend the Articles. Now they legislatures was destroying "the ag- crisis of the 1780s; and ultimately it were joined by others: urban arti- gregate interests of the communi- was these abuses that lay behind sans who hoped that a stronger ty." In all the states the representa- the radical reform of the central national government would prevent tives, said Ezra Stiles, president of government. The confusing and un- competition from British imports; Yale College, were concerned only just laws coming out of the state and southerners who wanted to with the special interests of their legislatures, Madison informed Jef- gain representation in the national electors. Whenever a bill was read ferson in Paris in October 1787, had government proportional to their hi the legislature, "every one in- become "so frequent and so fla- growing numbers. But reinforcing stantly thinks how it will affect his grant as to alarm the most stedfast these groups clamoring for changes constituents." Appealing to the peo- friends of Republicanism," and in the Articles were also those ple therefore had none of the bene- these abuses "contributed more to deeply concerned with the prob- ficial effects that good republicans that uneasiness which produced lems of state politics. It was these had expected. A bill in Virginia hav- the Convention, and prepared the state problems that ultimately ing to do with court reform was "to public mind for a general reform, forced Americans to redefine the be printed for consideration of the than those which accrued toour crisis they faced in the most mo- public," said Madison; but "instead national character and interest mentous terms. Since majoritarian of calling forth the sanction of the from the inadequacy of the Confed- tyranny and the legislative abuses wise te, virtuous," this appeal to the eration to its immediate objects." of the states flowed from the Revo- public, Madison feared, would only In 1786 a rebellion of nearly 2,000 lutionary aim of increasing the par- "be a signal to interested men to debtor farmers who were threat- ticipation of the people in govern- redouble their efforts to get into the ened with foreclosure of their mort- ment, the very success of the Legislature." Democracy, in other gaged property broke out in west- Revolutionary experiment in popu- words, was no solution to the prob- ern Massachusetts. This rebellimi, lar government was at stake. Thus lem; it was the problem. Pandering led by a former militia captain, Dan- creating a new central government to voters and horse-trz1g politics iel Shays, confirmed many of these was no longer simply a matter of were not what many Americans had anxieties about state politics. The cementing the Union or standing expected from the Revolution. insurrection, which temporarily firm in foreign affairs or satisfying By the mid-1780s many American closed the courts and threatened a the demands of particular creditor, leaders were convinced that the federal arsenal, occurred in the merchant, and artisan interests. It state legislatures and majority fac- very state that was considered to was now a matter, as Madison de- tions within those legislatures had have the best-balanced constitu- clared, that would "decide for ever become the greatest source of tyr- tion. Although Shays' rebelswere the fate of Republican Govern- anny in America. The legislatures defeated by militia troops. his sym- ment." were swallowing up the powers of pathizers were victcrious at the the other branches of government polls early in 1787. The newly-cho- and were passing stay laws, paper sen state representatives soou en- Gordon S. Wood is pros .sor of history money bills, and other debtor relief acted debtor relief legislation that at Brown University, and the author of legislation in violation of the rights The Creation of the American Republic, added to the growing fears of legis- 1776-1787 (University of North Carolina of creditors and other minorities. lative tyranny. Press, 1969). this Constitution 72 11 The Philadelphia Convention and the Development of American Government: From the Virginia Plan to the Constitution by PAULINE MAIER

The Virginians arrived early. Scotland only in 1765. As a result, Henry had cause for suspicion. Gradually other delegates drift- like the younger delegates, he Many delegates expected to do ed into Philadelphia, drawn learned the art of American politics more than amend the Articles of from the far reaches of the United under the popular institutions of Confederation; after all, in Septem- States to take up what they knew the Revolution, not the old colonial ber 1786 the Annapolis Convention would be a work of historic impor- system. That was important. Such had called for a convention in Phila- tance. The plan of government pro- men were not only practicing politi- delphia to "take into consideration posed by the constitutional conven- cal scientists, fascinated with the the situation of the United States" tion would, said James Madison, challenge of constructing institu- and "devise such further provisions "decide for ever the fate of Republi- tions so the American republic as shall appear to them necessary can Government." Should the con- could survive longer than any re- to render the constitution of the vention fail to repair the "defective public in times past; they were ex- federal government adequate to the systems" then in effect, the people perienced politicians who knew exigencies of the Union." Most del - in Juld in time renounce the bless- how to get things done in a demo- egLtes agreed that the central gov- ing of self-government "and be cratic system. ernment had to be given substan- ready for any change that may be The list of delegates also includ- tially more powermore, perhaps, proposed to them." If the American ed several older Americans who that could be accomplished by re- republic failed, Roger Sherman add- brought considerable prestige to vising the Articles of the Confedera- ed, mankind might well "despair of the convention, particularly Benja- tion. Wha the Philadelphia conven establishing Governments by Hu- min Franklin and George Washing- tion proposed was, however, not a man wisdom a and leave it to chance, ton, the ex-commander of the Con- reincarnation of the British Empire, war and conquest." Upon the continental Army and the most hit what M dison later described vention's work depended, in short, respected person in the United as "a new Creationa real nonde- the future of the American people States. Some notable Americans script," namely, the American fed- and "the cause of Liberty through- were absent: John Adams and eral system. out the world." Thomas Jefferson, for example, No delegate had such a srRill The significance of the event were serving their country as diplo- clearly in mind when the c..en- helped draw a remarkable group of mats in Europe. Even so, when Jef- tion first assembled in May 1787. It people to Philadelphia in the spring ferson reviewed the convention's emerged during the convention, and summer of 1787. Of the fifty- membership he characterized it as which adopted a plan proposed by five delegates who attended the "an assembly of demigods." Virginia as the foundation for its convention, eight had participated Certainly the distinction of the deliberations, then thoroughly rein the constitutional conventions of delegates was out of keeping with vised and expanded that plan in their states, seven had been gover- the work of a convention "for the creating the federal constitution. nors, and 39over 70 percent of sole and express purpose of revis- Only after the convention dissolved the totalhad served in the Conti- ing the articles of confederation," did the "founding fathers" under- nental Congress. One of every three as the Continental Congress said in stairi what they had accomplished. had been in the Continental Army, February 1787. From the beginning, which also increased their commit- some people doubted that so distin- Adopting the Virginia Plan ment to the United States as a na- guished a set of delegates would tion. gather for so limited a task. "I smelt Between May 25 and 29 the con- The average delegate was forty- a rat,"Patrick Henry explained vention elected its president, Wash- two years old, but the most brilliant when asked why he had refused to ington, and secretary, Major Wil- of them were even younger. Alexan- attend the convention. Later he and liam Jackson, and defined its basic der Hamilton of New Yon, was thir- otherAnti-Federalistswould rules of proceeding. Each state's ty, James Madison of Virginia"the charge that ti.e convention con- delegation would vote as a unit, and father of the Constitution"thirty spired to undermine the American seven states would constitute a six. James Wilson of Pennsylvania, Revolution by destroying the states quorum. (At the time that rule was whose contributions to the conven- and replacing them with a great adopted only nine states were rep- tion rivalled Madison's, was eight "consolidated government" like resented, though in the end all the years older than Madison. He had, that which the British had tried to original thirteen states except however, arrived from his native establish in the years before 1776. Rhode Island would participate in 73 12 this Constitution tI/ .. v/Yieta M7/3,1 Int-t4e/v2 / .4'444"AA_ If) ,7fer-a44, Silhouette of James Madison by Joseph Sansom. Historical Society of Pennsylvania. ,..

....,, 74 13 the convention.) Moreover, the con- James Madison, who was perhaps was derived from the people," vention's proceedings were to be the most knowledgeable student of James Wilson argued, "equal num- secret: the "yeas" and "nays,m government among the delegates at bers of people ought to have an specific proposals would not be re- Philadelphia. Madison had pre- e .;ual number] of representatives, co-ded so delegates could more pared carefully for the convention and different numbers of people freely change their opinions, and by studying the history of all previ- different numbers of representa- nothing said in the convention was ous confederations in history, their tives... Are not the Citizens of to be communicated to the outside strengths and defects, and by exam- Pen[nsylvaniaj equal to those of world "without leave." Finally the ining with equal care the "vices" of N[ewj Jersey? does it require 150 of convention turned to its main busi- American government in the 1780s. the former to balance 50 of the ness. From those studies Madison sought latter?" The delegates from Dela- Gov. Edmund Randolph of Vir- ground, rules for the revision ofware, however, said they were ginia took the floor. He spoke of the American institutions. His conclu- bound by their instructions to con crisis that led to the calling of the sions shaped the Virginia Plan. sent to no change in the system of convention and "the necessity of The convention immediately re- equal state representation, and "in preventing the fulfilment of the solved itself into a committee of the case such a change should be fixed prophecies of the American down- whole "to consider of the state of on, it might be their duty to retire fall"; he summarized what was es- the American Union," and in that from the Convention." New Jersey sential in any revised governmental role it discussed rigorously the Vir- was equally insistent: under a sys- system, and why the Articles ofginia Plan from May 30 through tem of proportional representation, Confederation, though the best that June 13, revising and expanding the Paterson argued, the small states could be achieved eleven years ear- original Randolph proposals. Mean- would be "swallowed up" by large lier, "in the then infancy of the while, more delegates arrived, states. If the small states would not science, of constitutions, & of con- many of whom were uncomfortable confederate on a plan of propor- federacies," were no longer ade- with the direction of change in tional representation, Wilson re- quate. Finally, Randolph proposed which the convention had appar- plied, Pennsylvania "& he pre- to replace the Confc deration with a ently committnd itself. Finally, on sumed some other States" would new plan of governmentthe Vir- June 15, William Paterson of New confederate on no other. Disagree- ginia Plan. It consisted of fifteen Jersey presented to the convention ment over the system of representa- resolves outlining a new national an alternative plan, one that better tion was, in short, profound, and government that would include a represented the views of several explains in part why the "small bicameral legislature with power to "small state" delegates. It became state" delegates developed the New "legislate in all cases to which the known as the New jersey Plan. Jersey Plan. separate States are incompetent, or The Virginia and New Jersey The supporters of the New Jersey in which the harmony of the United plans differed in their provisions for Plan were, however, no less deter- States may be interrupts by sepa- representation. According to the mined than those of the Virginia rate state laws. The new legislature Virginia Plan, representation in Plan to enhance significantly the would, moreover, be able to "nega- both houses of the national legisla- powers of the central government, tive," or veto, state laws that in its ture would be proportional to popu- and so to give it, as David Brearly of opinion violated the articles of lation or contributions to the na- New Jersey said, "..:nergy and stabil- Union, and to use force against tional treasury. Under the New ity." Like the Virginia Plan, the New states that failed to fulfill their du- Jersey Plan, each state would con- Jersey Plan granted the central gov- ties under those articles. The Vir- tinue to be represented equally, as ernment power to raiseits own ginia Plan also provided for a sepa- was true in the Confederation's revenue and to regulate commerce, rate "National Executive"nd a Congress. To delegates from states powers that had been denied the "National Judiciary." The new like Virginia that had relatively Confederation Congress. Altho'..gh scheme of government was to be large populations, or that expected it would have continued the uni- ratified by special conventions, their populations to grow substan- cameral legislature c.sf the Confeder- electe;' by the people of the various tially in the Lture, the principle of ation, the New Jersey Plan autho- s.ates for that purpose. proportional representation hadrized the establishment of a Both Randolph's remarks and his been "imp overly violated" in the separate Executive branch and of a proposal showed the influence of Confederation.'`Asall authoriq?"federal Judiciary" whose members 5 14 this Constitution '; 44-

The signing of the Constitution by J. P.Rosner. Library of Congress.

would hold office "during good be- des of Confederation "torender havior," such that, in the end,the reduced the states to administrative the federal Constitutionadequate units of that new-formed institutions it proposed wouldhave to the exigencies of Government, & sovereign resembled those of the nation. For him, the NewJersey Virginia the preservation of the Union."The Plan. Moreover, all acts ofCongress Plan would not work: "noamend- made under the government proposed under the ment of the Confederation, leaving powers vested in it New Jersey Plan wouldtherefore and all treaties ratifiedunder the the States in possessionof their have remained "federal" in thelan- Sovereignty," could possibly authority of the UnitedStates guage of the day. That is, it would satisfy would be "the supreme lawof the the country's needs. Nor didRan- have remained a Confederationof dolph's proposalsgo far enough: respective States," and thefederal sovereign states (though the New Executive would havepower "to "What even is the VirginiaPlan, but Jersey Plan violated the "federal" pork still, with a little change call forth [thejdower of the Con- nature of tin Confedc-ation by of the federate States... to enforce and pro- sauce?" viding that tie centralgovernment Hamilton's plan, however, compel an obldience to suchActs, could enforce its authority went or an observance of such Treaties" on indi- too far: it was never seriouslycon- viduals directly). In proposingthe sidered by the convention, on the part of states or bodies of Virginia Plan, Randolph had argued no doubt men within any state who inter- because, as he admitted, ithad no that a union "merely federal"in that fered with the ex 'utionof such chance of being acceptedat that sense was insufficient to provide time by a people whose laws and treaties. for the "common defence, attach- According to the supporters security ments to the states remained of of liberty, & gen[era]l welfare."A the New Jersey Platt, theproposals strong. But did the New Jersey Plan "national Government"was neces- have any better prospect? of the Virginia Plan hadlittle sary, he said, one that would be All previ- chance of being ratified. "Ourob "supreme." ous attempts to increase the Con- federation's power by amendments ject," Paterson said, "isrot such a On the same assumption, Alexan to the Articles of Confederationhad Government as may be bestin it- der Hamilton proposed, duringdis- self, but such a oneas our Constitu- failed to get thenecessary unani- cussir -is of the New JerseyPlan, mous state support, and therefore ents have authorizedus to prepare, the establishment of and as they will approve." a still more Paterson's plan, George Masonar- As a clearly "consolidated" nationalgov- result, the New Jersey Planwas gued, "never could beexpected to ernment. "Two Sovereigntiescan succeed." drafted in a way that madeit seem not co-exist within the more in keeping with the same limits," The convention's decisionon an- he said, repeating theestablished June 19, by a vote of 7 noulced purposes of theconven- wisdom of his time. So he would to 3, to tion it proposed to "revise" proceed on the basis of theVirginia as well have placed "compleat sovereignty Plan was a critical as to correct and enlarge the Arti- in the general Governm[en]t," one. It meant 04. and that the delegates had agreedto cut this Constitution 76 15 [The framers of the Constitution] were not onlypracticing political scientists, fascinated with the challenge of constructinginstitutions so the American republic could survive longer than anyrepublic in times past; they were experienced politicians who knew how to getthings done in a democratic system.

loose from the Confederation and like a declaration of war, than an the number of free persons, includ- follow Washington's advice to infliction of punishment." In any ing those bound to service for a case, the Virginia Plan was farbrief- term of years but excluding "Indi- adopt "no temporizing expedients," "of but probe the defects of the current er than a constitution:clearly it ans not taxed," and three-fifths system "to the bottom, and provide would have to be expanded and all other Persons." Direct taxes were to be apportioned in the same a radical cure." They were,howev- organized and written in an appro- er, no more ready than the propo- priate form before the convention's way. Moreover, all money bills were nents of the New Jersey Plan to go work was done. to originate in the lower house, and so far that their proposalwould After its vote of June 19, the a census would be taken every ten have no chance of ratifier `ion. In convention focused itsa+tention years so representation and taxa- revising and developing the Virginia again on the Virginia Plan, which it tion could be allocated appropriate- Plan, they had to find ways to an- had already expanded from the ly. swer accusations that they "meant original fifteen to nineteen resolu- The "other persons" mentioned were, of course, slaves. The"three- to abolish the State Governm[en]ts tions. By July 26 the convention had altogether," to devise a system of agreed upon 23 resolutions, many fifths" ratio was taken from a pro- government, as Madison later put it, of them longer than any of those posed amendment of 1783 to the that would "avo%,1 the inefficacy of originally proposed by Randolph. Articles of Confederation; it was not the result of a separate compro- a mere confede:_cy without pass- The convention then aCourned un- ing into the opposite extreme of a til August 6. Meanwhile, a Commit- mise at the convention. The effect consolidated gov[ernmen]t" In do- tee of Detail expanded Congress's of counting three-fifths If a state's slave population in determining its ing that, they provided the founda- resolutions into a draft constitution, which the convention again representation in the House of Rep- tions for a new definition of the resentatives was, however, to in- word "federal," one that allowed a debated and changed. Finally, on genuine sharing of power between September 8, another committee crease the power of those Southern states who had argued so strongly two levels of government. was appointed "to revise thestyle of and arrange the articles which for proportional representation in Revising the Virginia Plan had been agreed to by the house." both parts of the legislature. They Even after that Committee of Style had done so because they expected completed its work, and on through the population of the South to grow The Virginia Plan was in no way a North. complete plan of government. As September 17, when the convention more rapidly than that of the or:,;inally presented, it included finally disso. -cd, the delegates Ironically, that expectation proved blanks for the convention to fill: made further important revisions. wrong: in the early nineteenth cen- The result was a constitution tury the Northern populaticrand Randolph's proposals, for example, so Northern repn ientation inthe specified only that members of the which, though built on the Virginia first branch of the national legisla- Plan, was strikingly different from House of Representativesrapidly ture "be elected by the people of its parent document. Above all, the outran that of the South. As a result, convention more carefully divided the Senate, with the equal represen- the several States every ______for the tation of states that the Southern term of to be of the age of and balanced power among the years at least...." Moreover, three branches of the central gov- delegates so opposed, proved the plan ernment, and between the states most important branch of the legis- many specific provisions hi the lature for the cause of "Southern were clearly there mainly tofocus and the nation. debate. They may have represented The most pressing issues before rights." the best thoughts of the Virginia the convention concerned the legis- How would the legislators be lature, the subject of Article I of the chosen? According to the Virginia delegation before the convention Plan, the people would elect the met, but even members of that dele- constitution. Dangerous divisions gation sometimes changed their over representation werefinally lower house, which would then healed on July 16 with the conven- elect the upper house from candi- minds in the course of the conven- dates nominated by the state legis- tion's debates. Madison, for exam- tion's "Great Compromise," which latures. The convention agreed that ple, decided soon after the Virginia allowed the states equal representa- Plan was presented that the use of tion in the Senate. Representation the House of Representatives in the House of Representatives should 'oe popularly elected: that, force against states would be a mis- Madison argued, would help estab- take because it "would look more would, however, be proportional to this Constitution 16 77 lish a "necessary sympathy" between the people and their government. Representatives' terms were set at two years, but Senators were given six-year terms in the hope that they would bring "due stability and wisdom" to the legislature. The convention gave state legislatures the right to elect Senators, which made the Senate more independent of the House of Representatives than it would have been under the Virginia Plan and so a more effective check upon that body, but tied the Senate more closely to the states. Later, however, the convention decided that senators would vote individually, not as state units. Defining the powers of Congress was a task of enormous impor- William Jackson, secretary of the Convention. Library of Congress. tance, but one that provoked little controversy. After some deliberation, the convention abandoned the Obligation of Contracts," all of the "general authority to execute Virginia Plan's vague statement that which they had done in the 1780s, the National laws" and the other Congress could act where the undermining the rights of property "Executive rights vested in Con- states were "incompetent" ur and provoking fear for the future of gress by the Confederation" that where separate state legislation the republic. In the end, the powers the Virginia Plan mentioned. The would interrupt "the harmony of of the states were so severely cur- president could veto acts of the the United States" for a very specif- tailed and those of Congress so legislature (though that veto could ic summary of Congress's rights. enhanced that, Madison noted, the be over-ridden by a two thirds vote Much of that summary was simply central government would hold in Congress), and he could do so by taken from the Articles of Confed- "powers far beyond those exer- himself, without the "Council of eration. Congress was also given cised by the British Parliament, Revision" specified in the Virginia critical new powers, starting with when the States were part of the Han. He would be "Commander in the all-important "power to lay and British Empire." Chief of the Army and Navy of the collect taxes" and "to regulate com- The convention quickly decided United States, and of the Militia of merce," and the major rlual au- to invest the executive powerAr- the several States." With the advice thority "to make all LaN, s which ticleII of the constitutionin a and consent of the Senate, he could shall be necessary and proper" for single person, despite the objec- make treaties and appoint ambassa- carrying out ... Powers vested tions of Edmund Randolph. Had it dors, judges, and other federal offi- by this Constitution in the Govern- thereby created an "elective Monar- cers. A seven-year term seemed too ment of the United States, or any chy" or, as Wilson argued, a respon- long for so powerful an executive. Department or Officer thereof." It sible public servant who would be a In part for that reason, the conven- was denied certain powersto "safeguard against tyranny"? Un- tion cut it to four years and elimi- pass bills of attainder or ex-post like a king, the president would be nated the ban on re-election. facto laws, for example. But the impeachable, and so removable The Virginia Plan's provision for prohibitions on the states were from office for violations of his letting the legislature elect the pres- even more important. The states trust. The convention also set the ident also seemed increasingly un- were denied the right to "coin Mon- president's term of office at seven satisfactory given the convention's ey; emit Bills of Credit; make any- years, after which he could not be inclination to make the president so thing but gold and silver Coin" legal re-elected. Gradually, however, the powerful. Election by Congress tender, or pass laws "impairing the president was given far more than would lead to "cabal and corrup- this Constitution r 78 17 tion." Moreover, as Madison noted, and "inferior tribunals... chosen ly chosen by the people, to consider experience in the states "had by the National Legislature." In- & decide thereon." The convention proved a tendency in our govern- stead the convention called for a agreed, and provided further that ments to throw all power into the single supreme court and "such in- when nine state conventions had Legislative vortex." State execu- ferior Courts as the Congress may ratified the constitution it would go tives were "in general little more from time to time ordain and estab- into effect over the people of those than Cypiiers; the legislatures om- lish." Judges would, moreover, be states (Article VII). The fate of the nipotent." Clearly "the preservation chosen by the president with the constitution would not therefore be of Republican Gov[ernmen]t... re- Senate's consent, not by the legisla- decided by the state legislatures quired" that the executive provide ture. In the constitution, as in the which, as Rufus King noted, lost an "effectual check ... for restrain- Virginia Plan, the independence of power under its provisions and so ing -.he instability & encroachments judges would be secured by giving would "be most like,y to raise ob- of the legislature." it seemed un- them tenure in office during good jections." Nor would. a single state, likely that the executive could be behavior, and forbidding the reduc- or c, ten four states, have power to adequately independent of the leg- tion of their salaries while they block the constitution's establish- islature to provide such a check if it remained on the bench. ment. When, moreover, nine states were elected by Congress. The convention also adopted a had ratified, the pressure on the But how else could the president critical passage, slightly revised, others (which were expected to in- be elected? By the people, James from the New Jersey Plan, declar- clude New York and Virginia) Wilson argued; but others said the ing that the constitution as well as would be intense: they would have candidates would be unknown to laws and treaties made under its to decide not whether they pre- the people at large. That problem authority were "the supreme Law ferred the Articles of Confederation was, Wilson said, "the most difficult of the Land" and binding state or the constitution, but whether of all on which we have had to !udges to uphold them, "any Thing they would join the new-formed decide."It was resolved, finally, in the Constitution or Laws of any nation or remain apart from it. though not entirely satisfactorily, State to the Contrary notwithstand- Most important, the ratification by entrusting election of the presi- ing." That, in effect, provided an provisions assured that the new dent to a body of electors equal to effective substitute for the Virginia government would be firmly found- the number of senators and repre- Plan's congressional negative on ed upon "the supreme authority of sentatives states were entitled to state laws, which critics had con- the people themseh es." A system send to Congress who would be demned as impractical. There of government ratified by the legis- chosen according to a method de- would, th "y P"gued, be too many latures, Madison argued, could be finea by their state legislatures. The laws for Congress to review, and at best a league or treaty, like the electors would meet in their states the proposal "would disgust all the Articles of Confederation; the au- and vote for two persons; the States." "A law that ought to be thority of "a Constitution" had to lots would be collected and count- negatived will be set aside in the be "founded on the people." Thus ed by Congress. Later, with the de- Judiciary departm[en]t," Gouver- the opening words of the new con- velopment of political parties, neur Morris said, "and if that securi- stitution: "We the people of the presidential electors would be ty should fail, may be repealed by a United States... do ordain and elected by popular vote rather than Nation[a]l law." Madison remained establish this Constitution for 'he II, the state legislatures and all of a unconvinced; a congressional veto United States of America." state's electoral votes would go to of state laws still seemed to him that candidate who won a majority "essential to the efficacy & security A New Form of Government of popular votes within the state. of the Gen[era]l Gov[ermen]t." Vir- The states then became a much ginia,Massachusetts, and North The convention had accom- more prominent part of presidential Carolina were in the minority when plished much of what it set out to elections than the delegates at Phil- the convention agreed to deny Con- do. ;t had divided power between adelphia had expected. gress that power. the states and the nation, taking Under the Virginia Plan, the judi- Finally, the Virginia Plan pro- from the states those powers they cial powerArticle III of t:. posed that the convention's recom- had abused in the past, and creating stitutionwould have consisted of mendations "be submitted an a central government with power "one or more supreme tribunals" assembly or assemblies... express- sufficient to serve the needs of the 18 7 this Constitution At each step in its proceedings theconvention drew on the les,:ons of history, including that of the Confederationand the American stateconstitutions. "Experience must beour only guide," John Dickinson had said; "Reason may mislead us."

Union. In designing the new central had the Articles of Confederation, it, because in the American Repub- government, the convention also perhaps because its future seemed lic the people alone were sovereign. created independent executive and so troubled. judicial branches to check the And a sovereign people couldpar- pow- On the final day of the conven- cel out responsibility for state and er of the legislate. At each step in tion, Benjamin Franklin, thecon- itsproceedings the convention national government, creating sepa- vention's only octogenarian, offered rate, concurrent jurisdictions over drew on the lessons of history, in- his colleagues counsel. "I confess," cluding that of the Confederation distinct spheres that could "no he said in a speech read for him by more clash than two parallel lines and the American state constitu- James Wilson, "that there are sever- can meet," each with complete au- tions. "Experience must be our only al parts of this constitution that I do thority for the tasks delegated to it. guide," John Dickinson had said; not at present approve, but... the This conception of the state and "Reason may mislead us." older I grow, the more apt I am to But what kind of government had central governments as indepen- doubt my own judgment, and topay dent agencies of the people,sepa- the convention adopted? Nota more respect to the judgment of rate but equal, provided the intel- "federal" government in thesense others." A general government, he of a Confederacy, or a "consolidat- lectual foundation for modern thought, was necesftary for the American federalism, a system of ed" national government. Most del- United States, and he questioned, egates agreed on the need for government which, as Madison un- "whether any other Conventionwe derstood, had no historicalprece- strengthening the central govern- can obtain, may be able to make a ment and believed they could do dent and so was a "new Creation." bk..ter Constitution.... Thus Icon- After 200 years, it is tempting to that safely. The history of all previ- sent ... to this Constitution because ous confederacies had proven, celebrate the Federalists' intellectu- I expect no better, and because I al and political accomplishmentsas Madison claimed, that such govern- am not sure that it is not the best. ments were endangered more by if they were the end of the story. The opinions I have Lad of itser- With justice, it should also bere- "anarchy" than "tyranny," by the rors, I sacrifice to the public good." "disobedience of membered that the conclusions ... members" He urged the other delegates to do Madison and his colleagues drew rather than "usurpations of the fed- the same, to "doubt a little" of their eral head." The convention from past history in the 1780s were was "own infallibility," and work "heart- brought into question by the experi- nonetheless forced repeatedly to ily and unanimously" for the consti- ence of the 1790s: eleven years after negotiate compromises betweer tution's ratification. the convention "the father of the these who thought the states Three of the delegates whore- Constitution" had come to fear tyr- "should be considered as havingno mained in Philadelphia rejected anny from the central government existence" with respect to the gen- Franklin's adviceElbridge Gerry far more than anarchy, and hepro- eral government, and those sho of Massachusetts and two Virgin- posed, in the Virginia Resolutions sought repeated affirmations of the ians, Edmund Randolph and of 1798, a role for the states in states' continued importance. Even George Mason, whose discontent judging the constitutionality of when the delegates agreed to elimi- witnessed how far the convention nate the word "national" from the Congress's laws. In the end, the had moved from the original Virgin- future of the republic was decided constitution, they did so for differ- ia Plan. However, thirty-nine signal ing reasons. The result was not at Philadelphia so much as at a sys- the constitution and campaigned Appomattox, by a war fought for tem of government that conformed for its ratification (as, in the end, much the same reason as that for to no previous model and which did Randolph). which the constitutional conven- satisified no one completely. To In the state ratification debates, tion metto assure that "govern- Madison and Wilson, for example, moreover, thet, t.deralists, under the constitution's provision ment of the people, by the people, for the leadership of James Wilson, de- for the people, shall not perish from equal state representation in the veloped a coherent justification of the earth." Senate constituted a nevi "vice" of the new American governmental the American system, an error of system. Provisions hammered out design that would lead to "disease, as compromises emerged as posi- Pauline Maier is professor of history at convulsions, and finally death it- tive virtues. Neither the statesnor the Massachusetts Institute of Technolo- self." The constitution includedno the central government was "su- gy. She is the author of The Old Revolu- reference to a "perpetual Union," tionaries: Political Lives in the Age of as preme," as the Virginia Plan had put Samuel Adams (1980). this Constitution- 80 19 -"-.14,"" 4.4,'"kw'rir:V 4*.st Society and Republicanism: America in 1787 by JAMES A. HENRETTA

n all times," John Winthrop The republican doctrine of popu- archical society; here, there "are no told the first Puritan mi- lar sovereignty placed ultimate au- aristocratical families, no courts, no 6 6 1grants to the Massachusetts thority in the hands of "the People." kings, no bishops.... " Europeans Bay colony in 1630, "some must be But who were "the People"? Did also pointed out that the American rich, some poor, some high and "the People" include women as Revolution had institutedlegal eminent in power and dignity, oth- well as men? Black slaves as well as equality, further undermining social ers mean and in subjection." A cen- free whites? Did the republican privilege and hierarchical authority. tury and a half later his descendant doctrines of political liberty and "The law is the same for everyone James Winthrop likewise pointed to legal equality imply social equality both as it protects and as it punish- the power of the rich and well-born. as well? es," one visitor noted. "In the "Every society naturally divides it- Betw,en 1776 and 1789 Ameri- course of daily life everyone is on cans passionately debated these the most perfect footing of equali- self into classes," he wrote in 1788, ty:, and men who compose "the natu- questions. The fate of the revolu- ral aristocracy ... will command a tionand the republican experi- Like James W .tthrop, Europeans superior degree of respect." John mentseemed to hang in the bal- were well aware that legal equality Winthrop praised nilby the privi- ance. This extraordinaryintel- not prevented the formation of leged few, but his descendant con- lectualand political ferment social classes in the United States. demned it. In 1788 James Winthrop stemmed in part from the contra- "Wealth, power and higher educa- emerged as a leading Massachu- dictions within republican ideology. tion rule over need and ignorance," setts Anti-Federalist. He opposed Some Americans gave an "aristo- one visitor declared bluntly. Yet ratification of the Philadelphia Con- cratic" definition to republicanism; class divisions in America differed vention because its system of "gov- they championed rt.le by the "natu- from those in Europe. The colonies ernment. is so constituted as to ad- ral aristocracy." Other citizens ar- had lackedand the republican mit but few to exercise to the gued for a "democratic" republic stateconstitutions Fohibiteda powers of it." In his eyes, it did not characterized by greater legal and legally privileged class of nobles. provide 'for a genuine and fair rep- political equality. The harsh eco- The absence of an aristocracy of resentation if the people." nomic conditions of the 1780s in- birth encouraged many Americans This dialogue between the Win- creased social tensicrs and raised to seek upward mobility and to throps underlines the radical nature the stakes of this debate. The recreate class divisions based on of the American Revolution. The sulting political factionalism led to achievement. "In Europe to say of repudiation of British rule ended the writing of Philadelphia Consti- someone that he rose from nothing the traditional colonial social and tution. Theie ideological and eco- is a disgrace and a reproach," an political order. The Declaration of nomic conflicts likewise shaped the aristocratic Polish visitor explained Independence spoke of human debates over ratification. In particu- in 1798. "It is the opposite here. To equality, of the right of all people to lar, they explain Madison's astute be the architect of your own for- enjoy "life, liberty, and the pursuit analysis of social and political fac- tune is honorable. It is the highest of happiness." Ordinary Americans tions in Federalist No. 10. recommendation." quickly used their new-found free- Some Americans disagreed. dom. In 1778 voters in James Win- Republicanism Many Patriot leaders held "aristo- throp's Massachusetts rejected a cratic-republican" values. These state constitution proposed by the Europeans were especially con- men and women preferred a society Assembly. "Said Constitution and scious of the relationship between based on inherited wealth and fam- Form of Government," theresi- the social order and republicanism. ily status. They questioned the wis- dents of the small western town of In his famous Letters from an dom of a social order based on Greenwich explained, American Fanner (1782), the equality of opportunity and finan- Entirely Divests the good People French essayist Hector St. John de cial competition. During the War of this State of Many of the Privi- Crevecoeur explained that Europe many small-; 'ale traders had leges which God and Nature has was ruled by "great lords who pos- reaped windfall profits from mili- Giver them ... and (gives) away sess everything, and a herd of peo- tary supply contracts and sharp that Power to a few Individuals, ple who have nothing." In America, dealing in scarce commodities. which ought forever to remain historical development had eroded "Fellows who would have cleaned with the People.... the foundations of traditional hier- my shoes five years ago, have

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82 21 amassed fortunes, and are riding in the Ladies, and be mc:e generous be the same," seventeen-year old chariots," complained Boston's to them than your ancestors Eliza Southgate of Maine wrote to a James Warren in 1779. Such envi- [were]." "We know better than to male cousin, "each [sex] ought to ous sentiments were echoed by es- repeal our Masculine system," the have a separate sphere of action." tablished families who wished to future president replied with jocu- "Yet to cultivate the qualities with preserve their social and political lar condescension, "in Practice you which we are endowed [she contin- dominance. Many American politi- know we are the subjects. We have ued] can never be called infringing cal leaders likewise lamented the only the name of Masters." the prerogatives of man." "The men demands for political equality gen- In fact, legal rules ensured male say we have no business" with poli- erated by the Re,,olution. "Depend dominance in the new rep,can tics, Eliza Wilkinson of South Caro- upon it, Sir," the aristocratic-repub- family. Sta',...es enacted by state lina complained, "but i won't have lican John Adams declared ia a legislatures perpetuated traditional it thought that because we are the private letter, "it is dangerous... to English common law restrictions weaker sex as to bodily strength we alter the qualifications of voters." If on married women. William Black- are capable of nothing more than property qualifications for voting stone, the famous English jurist, domestic concerns. They won't were lowered, he warned, had pointed out that under com- even allow us liberty of thought, there will be no end to it. New mon law, "the very being or legal and that is all I want." claims will arise; women will de- existence of the woman... during A few American public leaders mand a vote; lads from twelve to marriage is incorporated and con- responded positively to female de- twenty-one will think their rights solidr' ed into that of the husband." mands for greater equality, but usu- not enough attended to; and ev- This legal condition of "coverture" ally with male mats in mind. In his ery man who has not a farthing, limited the rights of married wom- Thoughts on Female Education will demand an equal voice with en to own property, to sue, or to (1787), the Philadelphia physician any other, in all the acts of state. make contracts and wills. These Benjamin Rush advocated the intel- The result would be "to confound common law rules deprived Ameri- lectual training of women, so they and destroy alldistinctions and can women of most legal rights would "be aIl agreeable companion prostrate all ranks to one common until the 1840s, when many state for a sensible man:" Rush and other level." Like John Winthrop, John legislatures passed Married Wom- men of affairs likewise praised "re- Adams still believed that some men en's Property Acts. Even then, less publican mothers" who instructed were high and eminent, while oth- severe forms of legal inferiority re- "their sons in the principles of liber- ers were lowly and should be in stricted women's lives through ty and government." subjection. most of the twentieth century. Ultimately, the concept of "re- Yet "democratic-republican" ide- publican motherhood" altered the Women and the Family ology encouraged demands for the character of the family and of legal emancipation of women even American society. The main impe- Nonetheless, republican ideology as republican practice denied them. tus came from religion. Beginning challenged all social privilege, even In 1779, Judith Sargent Murray of in the 1790s, Christiandnisters the patriarchal relations of power Gloucester, Massachusetts, com- celebrated women's role as moral within the family. Previously, reli- posed an essay "On the Equality of educators. "Preserving virtue and gious writers had accorded preemi- the Sexes" and published it in 1790. instructing the young are not the nent authority to the male head. Murray stressed the importance of fancied, but the real 'Rights of "The Husband IS to rule his Family mutuality in marriage: "Mutual es- Women'," the Reverend Thomas and Wife ... ," Boston minister Ben- teem, mutual friendship, mutual Bernard told the Female Charitable jamin Wadsworth had declared in confidence, begirt about by mutual Society of Salem, Massachusetts. The Well-Ordered Family (1712). forbearance."Similar sentiments "Give me a host of educated pious "Wives submit your selves to your were widespread among young, mothers and sisters," echoed own Husbands, b in subjection to well-educated, upper-class women. Thoiaas Grimke, a South Carolina them." In 1776, Abigail Adams ques. They tried to reconcile the republi- minister, tioned this system of patriarchal can doctrine of equality with the and I will do more to revolution- authority. She urged her husband cultural reality of female subordina- ize a country, in moral and reli- John and the other men in the Con- tion. "I was never of opinion that gious taste, in manners and in tinental Congress to "Remember the pursuits of the sAxes ought to intellectual cultivation than I can

22 this Constitution Republican ideology challenged all social privilege, even the patriarchal relations of power within the family.

possibly do in double or triple the later, all states north of Delaware pation of slaves in the South. Slaves time, with a similar host of men. had adopted similar :egislation. accounted for 30 to 60 percent of Grimke did not exaggerate. Wom- The abolition of slavery in the the southern population and repre- en played a central role in the Sec- North exposed additional contra- sented a huge financial investment. ond Great Awakening (1790-1830), dictions within republican ideology. Most southern political leaders the evangelical revivals that made American patriots had fought the were slaveowners, and they active- Christianity an important part of British riot only for their lives and ly resisted emancipation. In 1776, the emerging American nationalliberty, but also for the rights of the North Carolina legislature con- character. Many married women private property. Indeed, the three demned the actions of Quakers now used their moral position as values were closely linked in repub- who freed their slaves as "highly "guardians of virtue" to achieve a licz theory. The Massachusetts criminal and reprehensible." position of near-equality within the Constitution of 1780 protected ev- Understandably, southern blacks home. Women trained in religious ery citizen "in the enjoyment of his sought freedom on their own. Two academies entered the paid work life, liberty, and property, according white neighbors of Richard Henry force as teachers, while other wom- to the standing laws." The Virginia Lee, a signer of the Declaration of en activey campaigned for social Bill of Rights went further; it assert- Independence, lost "every slave reform and for women's rights. Re- ed that be "means of acquiri4 and they had in the world," as did nearly publican ideology and religious ide- possessing property" was an inher- "all of those who were near the alism had transformed the tradi-ent right. Like John Adams, the enemy." More than five thousand tional cultural rules governing the authors of most state constitutions blacks left Charleston, South Caro- status of women in American sode- believed that only property owners lina, with the departing British r!. could act independently and re- army. Other American slaves bar- stricted voting rights to those with gained wartime loyalty to their pa- Slavery and Property freehold estates. For them, republi- triot masters for a promise of liber- canism was synonymous with prop- ty. Using a Manumission Act passed Democratic-republicanism and erty rights. in 1782, Virginia planters granted Christian idealism also threatened There was the rub. For slaves freedom to more than ten thousand the institution of slavery, a prime were property. The abolition of slaves. feature of the American legal order. slavery in Massachusetts in 1784, Yet black emancipation in the In1787, no fewer than 750,000 James Winthrop pointed out, meant South was doomee yen before the blacks (20 percent of the entire that "a number of citizens have expansion of cotton production population of the United States) been deprived of property formerly gave slavery a new economic ratio- were held in hereditary bondage. acquired under the protection of nale. The rice planters of Georgia But now their servile Status was the law." To protect white property and South Carolina strongly op- subject of political debate. In 1784, rights, the Pennsylvania Emancipa- posed emancipation throughout the Virginia Methodists condemned tion Act of 1780 did not free slaves revolutionary era. Tivair demands at slavery, using both religious and already in bondage. The Act award- the Philadelphia Convention result- republican arguments. They deed freedom only to slaves born af- ed in a clause (Article I, Section 9) clared that slavery was "contrary to ter 1780and then only after they that prevented Congress from pro- the Golden Law of God on which had served their mothers' masters hibiting the transatlantic slave hang all the Law and Prophets, and for twenty-eight years. In fact, trade until 1808. By that tme, the unalienable Rights of Mankind, American republican ideology was southern whites had imported an as well as every Principle of Revo- ultimately derived from ancient additional 250,000 Africansas lution." Greece and Rome and was fu'' many slaves as had been brought These arguments laid the intel- compatible with slavery. "As free into all the mainland colonies ly..- lectual basis for black emancipa- men," the poet Euripedes had writ- tween 1619 and 1776. tion itt the northern states, where ten of his fells w citizens in the Nonetheless, republican ideology there were relatively few slaves. By ancient Greek r.ublics, "we live and evangelical Christianity pro- 1784, Massachusetts, Pennsylvania, off slaves." foundly affected the lives of many Connecticut, and Rhode Island had This aristocratic-republican ide- black Americans. By 1787, thou- either abolished slavery or provid- ology combined with economic sands of blacks in the Chesapeake ed for its gradual end. Two decades self-interest to prevent the ernanci- states had joined Baptist and Meth- this Constitution 84 23 rZt

odist churches. The Christian message promoted spiritual endurance among some blacks and prompted others to resist slavery by force. In 1800, Martin and Gabriel Prosser plotted a slave uprising in Rich- mond, Virginia. They hoped to capture the governor and to seize the arms stored in the state capital. Their "cause was similar to the Israelites'," Martin Prosser told his followers. I have read in my Bible where God says, if we worship him, we should have peace in all our land and five of you shall conquer a hundred, and a hundred of you a hundred-thousand of our enemies. White Virginia-us nipped the insurrection in the bud, but it re- nwed their fears about the democratic implications of republicanism. During the War, slaves had "fought [for] freedom merely as a good," St. George Tucker suggested, but now they "claim it as a right." "Liberty and equality have brought this evil upon us," a letter to VirginiaHeraldargued following Gabriel's Rebellion, for such doc- Judith Sargent Murray by J. S. Copley. Frick Art Reference Library. trines are "dangerous and extremely wicked in this country, where every white man is a master, Inc: 1768, "the common people [now] qualifications for voting gave urban every black man is a slave." claim at, good a right to judge and artisans greater power; and reap- act for themselv'.s in matter o: reli- pointment of the state legislature Artisans and Farmers gion as civil rulers or the learned on the basis of population gave clergy." greater representation to ordinary Democratic-republicanism ap- Political revolution translated western farmers. pealed not only to women and these anti-elitist sentiments into The results were dramatic. Be- black, but also to artisans and yeo- ringing affirmations of popular fore 1776, only 17 percent of north- men farmers. These men formed power. In 1776, the voters of Meck- ern assemblymen were "middling" the vast maiority of the voting pop ienberg County told their delegates farmers and artisans, thos with tax ulation. Prior to Independence, they to the North Carolina Constitution- assessments of less than £2,000; by usually elected leading landowners al Convention to "oppose every- the 1780s these social groups con- or merchants political office and thing that leans to arit.tocracy, of stituted no less than 62 percent of deferred to their superior social sta- power in the hands of the rich and the representatives. The democrat- tus. Religious conflicts during the chief men exercised to the oppres- ic-republican thrust of the Ameri- First Great Awakening (1740 tosion of the poor." Tne new state fan revolution had undermined the 1765) partially undermines theseconstitutions dramaticallyin- hierarchical social order of Tohn deferential attitudes. As Baptistcreased the political influence of Winthrop and had created state leader Isaac Backus explained in ordinary citizens. Lower property governments in which, as James

24 85 this Con:,itution The republican ideology of liberty and equality had raised the expectations of a majority of "the People" while leaving them in an inferior social position.

Winthrop put it, there could be "a reduced American dependence on "We must make these men subject genuine and fair representation of British manufactures. During the to thtiws or they will enslave the the people." Revolution, artisans in the town of whole community." Actually, mer- Democratic-republican demands Lynn, Massachusetts, had likewise chants usually had the law on their for greater equality contributed to raised their output of shoes. By side so, during the 1760s, Husband the intense political and constitu- 1789, the town turned out 175,000 and his followers intimidated t:onal struggles of the 1780s, as did pairs of shoes each year, and by judges, closed courts by force, and an overcrowded agricultural econo- 1800, no fewer than 400,000 pairs. broke into jai's to free their arrest- my. Thousands of white t,_mant The efforts of these women and ed leaders. Anti-merchant senti- timers yearned to escape the hier- men laid the foundation for Ameri- ment during the 1770s rushed for- archical rural society of the Chesa- can self-sufficiency and prosperity. ward the independence movement peake states, while landlords As ...lexander Hamilton noted in Virginia, where Scottish traders sought to keep them at home. proudly in 1792, the countryside had extended credit to more than "Boundless settlements," a letter in was "a vast scene of household 32,000 tobacco planters. And it ap- the Maryland Gazette warned in manufacturing... in many cases to peared yet again in western Nassa- 178fwill open "a door for our an extent not only sufficient for the chusetts in the 1780s. Between 1784 citizens to run off and leave us, supply of the families in which they and 1786, the Hampshire County depreciating all our landed proper- are made, but for sale, and even, in Court heard 2,977 debt cases. Angry ty and disabling us from paying some cases, for exportation." Massachusetts farmers defended taxes." Merchant entrepreneurs such as their property from seizure by clos- A rapidly growing population Ebenezei Breed of Lynn, Massachu- ing the courts. pressed on landed resources in setts, directed many of these rural Farmers like womenand New England as well. In the typical enterprises. They employed farm slavesnow used the democratic- town of Kent, c.,onnecticut, one women and children to sew the soft republican heritage of the Ameri- hundred fathers and 109 adult sons uppers of shoes or to spin jam, and can revolution to justify their ac- lived on the *own's 103 farmsteads. rural males to weave cloth for mar- tions. They met inextra-legal Previous generations of Kent par- ket sale. Their entrepreneurial ac- conventions and spoke of the "Sup- ents had subdivided their lands to tivities helped many Americans to pressing of tyrannical government." provide for their many offspring; maintain their standard of living Led by Revolutionary War veteran now their small farms would sup- during the commercial and agricul- Captain Daniel Shays, these farm- port only a single heir. Yeomen tural recession of the 1780s. ers eventually rose in outright re- families faced declining prospects This new capitalist system of pro- bellion. As the Massachusetts aris- and even the loss of their land. "The duction for market- also increased tocratic-republican Fisher Ames mortgage of our farms, we cannot economic conflicts. Rural workers lamented, "The people have turned think of," the farmers of Conway, and merchant entrepreneurs were against their teachers the doctenes Massachusetts protested, indispensable to each other, but which were inculcated in ti e late to be tenants to landlords, we their interestslike those of mer- revolution." know not who, and pay rent for chantand farmerswere not al- The republicaideology of liber- lands purchased with our mon- ways identical. Many backcountry ty and equality had raised the ex- ey, arid converted from howling carmers went into debt to expand pectations of a majority of "the vilderness, into fruitful fiends, by household production or provide People" while leaving them in an the sweat of our brow, seems... farmsteads for the:children. As inferior social position. In 1787, truly she debts increased, so too did defaults American women were still legally To provide for their families in and law suits. The courts directed subordinate to males, and most these hard times, many rural resi- sheriffs to sell the property of bank- blacks were still legally enslaved. dents turned to household manu- rupt farmers and artisans to pay Legally-mandated taxes and court factures. In the small village of merchant creditors and court costs. proceedings threatened the liveli- Hallowell, Maine, the daughters of Commercial debt had been a fea- hoods of thousands of yeomen Martha Ba. and learned to weave, as ture cf American life since the farmers and artisans. Yet "the Peo- did most of the town's young wom- 1760s. 'Mark any Clerk, Lawyer, or ple" also included lawyers like en. The resulting surge in house- Scotch merchant," warned North Ames and James Winthrop, estab- hold cloth production dramatically Carolina farmer lierman Husband. lished merchants like Bostonian this Constitution 25 ...... i .2'... -- ...F.:11,kirliail q.''',...;ktirktra...'?,..".114,1 uaa ir'.-... 2.-',J;:', II' 7,17,.. '.4V 1., 1 ..,..C.1) ts. .. -ts. ,,...4":).,5. Ce5 -,7..' 4. """"si, _ - I __ loft -.. ,:,,,, 1''''".. r.;4i4 1.6 /r. 71

Black soldier; at the Battle of New Orleans, 1815. Library of Congress.

James Warren, slaveowning plant- York (30 to 2., Yet b: July 4, 1788, constitution. But many remained as ers like Thomas Jefferson, and the Constitution had become the spectators, both of the parade and shoe-industry entrepreneur Eben- supreme law of the land, and thou- of the political process. id those ezer Breed. As .James Madison as- sands of Philadelphians turned out citizens who participatto did so tutely argued in Federalist No. 10, for a celebratory parade. A band with a heightened sense of their A landed interest, a manufac- played 'The Federal March, and a respective social identities and eco- turing interest, a mercantile inter- float carried a oversized framed re- nomic interests. The United States est, a moneyed interest, with production of the Constitution it- began its history with a society, many lesser interests, grow up of self. legally divided by gender and race; necessity in civilized nations, and The parade also demonstrated and with a polity diyided by class, diviie them into different classes, social and political divisions out- position and economic interest. actuated by different sentiments. lined in Madison's Federalist No. Two hundred years later, Ameri- Madison's goal at the Philadelphia 10. Most of the five thousand partic- cans remain sharply divided by race Convention had been to create a ipants marched not as individual and by economic and social in- public arena in which this "variety republicans, but as members of dis- equalities, although united by their of parties and interests" could pur- tinct occupational or social groups. Constitution and their republican sue their own goals without invad- Farmers cast seed before them. ideology. Now, as then, the meaning ing "the rights of other citizens." Weavers operated a loom on their of liberty and equality remains the horse-drawn float, while printers subject of intense debate and of Participants and Spectators ran a press. Behind the floats political struggle. marched grcups of artisans and Like James Winthrop, many James A. Henretta is Priscilla Alden professionalsbarbers, hatters, Burke Profes.ior of History at the Uni- Americans doubted that the Phila- lawyers, clergymen, and political versity of Maryland, College Park. He is delphia Constitutionreprese.lted leaders. Most blacks, women, and the coauthor of a new survey textbook, the correct constitutional formula. white laborers watched from the America's History and the author of The The Constit ition was ratified only sidewalks. Evolution of American Society, 1700- 1815 (1973). The working title of his by narrow majorities in the major All of these Americans joined to- present research is "Law and the Cre- states of Virginia (89 to 79), Massa- gether to cheer their republican ation of the Liberal State in America, chusetts (187 to168), and New revolution and their new national 1770-1860." 87 this Cognition DOCUMENTS

New Documents, NewLight on the Philadelphia Convention by JAMES IL HUTSON

Curiosity and the love of information of Graven now haulling out of the Sewer you know has no bounds. My curiosity in Fourth Street, be laid on Chestnut was highly gratified the other day by Street, in front of the State House. clasping the hand of a woman who (lied many hundred years ago. The ancient The resolution is important in that it confirms the Egyptians had an art, which isnow lost truth of a tradition that the stretAs around the out of the world, of embalming their dead Pennsylvania State House were treated to deaden so as to preserve the bodies from putrifi- the sound that was distracting the Convention, al- cation many of which remain to this day. though it has not been known that thecontents of From one of those an arm has lately been a sewer were used as a baffle. cut off and brought to this city. The hand Equally interesting in illuminating the nature of is in tire. The nails remain upon the fin- the environment in which the delegates worked is gers and the wrapping cloth upon the an entry in the Street Commissioners' minutes im- arm. The flesh which I tried with my mediately following the request for noise abate- knife, cuts and looks much like smoked ment. Numerous citizens, it was reported, had beef kept till it grows hard. complained to t; e commissioners about large pools of water standing stagnant in the streets of So wrote Oliver Ellsworth to his wife on July Philadelphia. That stagnant water bred mosquitos 21, 1787, from Philadelphia where he satas a that spread yellow fever was not understood in the Connecticut delegate to the Constitutional eighteenth century, but the people of Philadelphia Convention. sensed that there was a noxious relationship be- Ellsworth's letter and the others in this article tween standing water and the diseases which will be incluthd in a supplement to Max Farrand'sthreatened the health of the city during therum- The Records of the Federal Convention of 1787 mer months. The sickliness of summers in Phila- which will be published by Yale University Press indelphia was known throughout the colonies andat 1987.* The drafters of the Constitutionwere men 'Past one potential delegate, Erastus Wolcott of of their times. The letters they wrote during their Connecticut, refused to attend the Convention be- stay in Philadelphia, and other contemporary docu-cause he did not want to "hazzard his Life" in the ment, newly discovered, reveal their tastes and at-Pennsylvania capital. Others were also anxious titudes and, in a larger sense, the climate of opin- about their healthDaniel Carroll of Maryland ion in the late eighteenth-century world from stayed in Germantown becau le itwas "high, which the C institution emerged. healthy, and at a suitable distance" from the city. Consider the following entry in the June 22 min-The delegates as a group were remarkal..ly free utes of the Philadelphia Street Commissioners: from illness during the summer of 1787, but notso the children of Philadelphia, who seem to have suf- An order drawn on the Treasurer in fa- fered from an undiagnosed epidemic while the vour of Michael Wartman for the Sum of Convention was in session. A series of letters from fifteen Pounds on Account for Work done Elbridge Geary to his wife provide information with his Teams at the Common Sewer in about the social context of the Convention. On Fourth Street .. August 10, Gerry informed Mrs. Gerry, who hau.*- Upon Complaint to this Board of the treated with the couple's baby daughter to thesup- very great difficulty arising from the Car- posedly more salubrious air of New York, thata riages passing in front of the State House, friend so that the Honbl. Convention now setting there, are much interrupted by the Noise made a particular Enquiry for yourself of the eameResolved, thata Quantity and the baby. She was glad to hearyou were both well and wished to see you, but 'The author would like to acknowledge the assistance of the said you had acted judiciously in notre- National Endowment for the Humanities, which helpedsupport turning this Month, for it had been very the research for thLs volume, and Leonard Rapport, who did sickly since we left the City with young much of the archival investigation. Children, a great N mber of whom had

this Constihdon 8R 27 dys,d. There was scarcely a Day she said in which the framers operated at Philadelphia. The passed without her seeing some carried old and new co-existed in a complex tension The by her Door. constitution the delegates wrote reflected these conditions, for it combined old elements of the Ar- The catastrophe among the city's children may tic'es of Confederation with new elements and have precipitated the most shocking event of Vie conceptions. The complex instrument thus formed summer: the murder of a "witch" by a street mob. troubled some Anti-FederE lists, who implied that The alleged witch, an old woman named "Korb- the delegates must have been bewitch /:d to pro- maCher" (basketmaker), was subjected to the an- duce such an "amphibious monster." cient rituarof forehead slashing--supposealy an If many documents illustrate the milieu in which antidote to her evil powerson May 5, the day the Constitution was framed, numerous other doc- James Madison arrived in Philadclpiiia. In mid-Julyuments add to our knowledge of what happened she was carted through the streets and "pelted as on the Convention floor itself. Gunning Bedford of she passed along," apparently with stones and ref- Delaware played a modest role at the Convention. use, an ordeal from which she died eight days lat- A hot-tempered man, Belford lost his temper on er. Her attackers were whipped up by a woman June 30 and assailed the larger states whose insis- who subsequently testified in court "her belief that tence on proportional representation in both her only child sickened and died under the malig- houses threatened, in his opinion, the "degrada- nant influence of a charm" cast by the "witch." tion" of the smaller states. Rather than succumb to Members of the mob were, perhaps, inflamed by such a fate, Bedford warned (in an intemperate the loss of their children. speech for which he later apologized) that the Edmund S. Morgan, who described the travail ofsmall states would seek assistance abroad: there Korbmacher, asserted that Washington, Madison, are "foreign powers who will lead us by thehand," and the other framers must have been aware of he defiantly asserted. In the document published the "witch" death, for it was reported and de- below, to Bedford's hand and discovered in the nounced in all of the city's newspapers. Remark- collections of the American Antiquarian Society, ably, this outbreak of superstitution took place at we see Bedford in a calmer posture, reflecting on the same moment that the Convention delegates the Virginia Plan, introduced by Edmund Randolph were treated to a display of the latest in"high on May 29. Bedford conducts a dialogue with Ran- tech" engineering. dolph, summarizing the points the Virginian makes On August 22, William Samuel Johnson wrote oeld then responding to them. John Fitch as follows: Gunning Bedford's Notes on Randolph's Speech, Di: Johnson presents his Compliments to May 29, 1787 Mr. Fitch and assures him that the Exhi- bition yesterday gave the Gentlemen pre- Mr. Pandolph sent much satisfaction. He himself, and I. Congress unable to prevent War he doubts z ,t the other Gentlemen, will al- 2. Not able to support war ways be happy to give him every Counte- S. Not able to prevent internal Sedition or nance and encouragement in their Power, rebellion which his Ingenuity and Industry entitles 4. Cant prevent dissentions of one state him to. with another, except as to territory 5. No power to prevent encroachments of The "exhibition" to which Johnson referred was the several states on Confederacy a demonstration on the Delaware River ofFitch's Answer steamboat. According to Fitch, almost all of the 1st To prevent war Congress must pos- delegates watched the steamboat go through its sess wealth and men. Must dispose of paces; two of them, Robert Morris andJames Wil- her wealth in fortifying herself and son, were financial backers. must be able to command money and Slashing the forehead of a witch and seeing a hire men to put herself at all times in steamboat in action define the range of the world a defenceable situation. Cant these 89 Comillution -28 CA-ct.

Filth Street In Philadelphia, 1799. Library of Congress. objects be attained by a compulsory "compulsory power... to command men and mon- power in Congress to command money," provided that the small states were granted a ey and men from the several States? significant voice in deciding how such a govern- 2d To support war. Money and men an- ment operated. What is significant about this Bed- swer this purpose. A compulsory pow- ford document is the degree of power he was will- er in Congress will command ing to grant to the judiciary. Bedford's willingness, 3. Cant prevent sedition or insurrection as expressed in point nine, to permit the judiciary and rebellion. Vest Congress with pow- to be the arbiter between the state and national er to call for troops and to send them governments and his reliance on the power of the into the states where insurrection it judiciary in other articles offers support to those rebellion exists. Who to determine who contend that the framers intended that the ju- which party in the right rebels or ,'he diciary play an active role in our polity. state? Vest Congress with power to de- Two newly-discovered documents illustrate the termine this question on notice given development of the opposition to the Constitution to the parties. within the Convention. The first document, printed 4. Cant prevent dissentions of one state immediately below, is in South Carolina delegate with another save as to territory. Vest Pierce Butler's hand, but must have been copied, them with this power in all cases ei- not composed by Butler, for it contains objections ther immediately or thro their judicia- to clauses in the Constitution, a single executive, ry. for example, which Butler was on record as favor- 5. Congress not able to prevent encroaching. Many of the document's objections appear in ments of the states. Let the boundary expanded form George Mason's indictment of be ascertained with precision and let the Constitution, written on the back of his copy it be determined by the judiciary. of the report of the Committee of Style and, there- 6. Congress cant avail themselves of im- fore, the document may represent a summary of posts. Let the general regulation of Mason's objections as of August 30. trade be vested in them. 7. Congress ought to be enabled to prevent emissions of paper money. Let them be August the 30th vested wi'h such power Objections to the Constitution as far as it 8. No power to erect great works, improve has Advanced navigation promote agriculture etc. 1st.No privilige is given to the House They ought not to have such powers. A of Renresentatives, which by the state has the right to avail herself of all way are too few, in dispositian of natural advantages. To erect great money; by way of counter ballance works would enable them to draw to the permenent condition of the money independent of the states and Senate, in the circumstances of would end in aristc^racy oligarchy duration, power, & smallness of and tyranny. Number. 9. Congress ought to be paramount to 2d.The expulsion of members of the state legislatures. Let Congress be em- Legislature is not sufficiently powered to negative all laws that inter- Checked. fere with confederation and if appeal :id.The inequality of Voices in the by the state, let the question be deter- Senate is too great. mined in the judiciary. 4th.The power of Raising Armies is too unlimited. Bedford's views, as revealed in this document, 5th.The sweeping Clause absorbs every were typical of those of many small state delegates thing almost by Construction. and of his Delaware colleagues, Dickinson and 6th.No Restriction is made on a Navi- Read, in particular. Heand theywere willing to gation Act and certain. Regulatior s see a strong national government created with of Commerce.

91 this Constitution 7th.The Executive is One. 8th.The power of pardon is Unlimited. 9th.Tice appointment to Office will produce too great influence in the Executive. lOth.The Jurisdiction of the Judiciary will swallow up the Jndiciaries of the States. I I th.Duties on Exports are forbiden but with the assent of the General Leg- islature of the U.S.

The second "Anti-Federalist" document is defi- nitely a Mason production. James Madison received a copy of it on March 16, 1788, from James McHenry with a note "that it was given to the Maryland delegates for their considerationwith information that i; the alterations could be obtained the system would be unexceptionable. Their concurrence and assistance ... was requested." Madison copied the document and dated it August 31, apparently as a result of information received Mason: Alterations Proposed, August 31 from McHenry. Madisods copy, in his papers at the Library of Congress, is missing the final two ar- The Council of State, instead of being ticles in the document printed here. Another copy formed out of the Officers of the great De- of the Mason document, missing the last article, partmentsto consist of not le,,s than has been found in the John Dickinson papers at five, nor more than seven Members, to be the 11,storical Society of Pennsylvania. The copy constituted and appointed by law; or by printed below, the fullest of those known to exist, 213ds. of the Senate, with a duration & was found in the Pierce Butler papers at the Li- Rotation of Office, similar to that of the brary of Congress. It contains some of the objec- Senate. tions in the August 30 document, printed above, The Objects of the National Government but introduces others, including a protest against to be expresey defined, instead of indefi- the absence of a council of state, on whicit Mason nite powers, under an arbitrary Con- expanded in his manifesto on the back of the Com- structions of general Clauses. mittee of Style report, September 12, 1787. That Laws disapproved by the Executive, not manifesto began by assailing the Constitution for to be reinacted, but by a Majority of 2/ omitting a "Declaration of Rights," the grievance ads. instead of 3/4ths. of the Legislature. that became the staple of the Anti-Federalist cam- The Duties imposed upon Imports, by paign agaltit ratification. That neither the August adopsh tewathe Nati7nal Government, to 'A the same 30 nor 31 documents complain about the absence in all the States. of a bill of rights illustrates how late concern over The Legislature to be restrained from es- this issue developed at the Convention. During the tablishing perpetual Revenue. ratification debates, the Federalists implied that Laws for raising or apprc wiating Rev- solicitude for a bill of rights was a la ,t- minute in- enue, or fixing the Salleries of Officers, to vention in the Convention which for that reason originate in the House of Representatives. was insincere. Whether the proponents of a bill of The Members of both Houses to bf,neli- rights originally lacked conviction can not now be gible to Offices under the Naliona v- determined. Certainly their concern was, as the ernment; except to Comma.,,ds in tlu- new documents demonstrate, very late in develop- Army or Navy; their seats to be ttacated ing. by accepting such Commadds, and to be

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ineligible during their continuance. of the Officers of Government, shall origi- The President of the united States to be nate in the House of Representatives, & ineligible a second Time. shall not be so altered or amended by the The power of making Treaties, appoint- Senate as to encrease or diminish the ing Ambassadors &c. to be in the Senate, Sum to be raised, or change the Mode of with the Concurrence of the Council of raising, or to Object of its' Appropria- Stateor vice versa. tion." The Appointment to all Offices, established by the Legislature, to be in the Ex- The documents printed here were selected to ecutive, with the Concurrence of the Sen- represent the wide variety of new materials found ate, or vice versa. during the preparation of the supplement to Far- The power of granting .lanlons in the rand's Records. Scores of letters written by Con- Executive not to e.end to Impeachments, vention delegates to friends and family members, or to Treasonnor to preventing or stay- notes on Convention debates by John Dickinson ing process before Conviction & to be sf, and Pierce .1itler, motions introduced at the Con- expressly defined, as not, by any Con- vention by James Wilson and Elbridge Gerry, and struction to apply to persons convicted retrospective accounts of the Cowention by Wil- under the Laws & Authority of the Re- liam Samuel Johnson, Luther Martin, and Abraham spective States. Baldwin have been discovered and will be pub- The fallowing is the Substance of a lished. The result should be a better understanding Clause, which was offered & miscarried of the Philadelphia Convention and the environ- in the Convention; it will come in maw ment in which it was written. properly in the 5th. Section of the IV Arti- cle referred for reconsideration after the James H. Hutson is the chief of the manuscripts division word except"Bills for raising Money for of the Library of Congress. He is the editor of the supple- the purposes of Revenue, or for appropri- ment to Max Farrand's The Records of the Federal anven ating the same, or for fixing the Salleries Lion of 1787, published this year by Yale University Press.

32 93 thisConstitution The Achievement of the Framers by HENRY STEELE COMMAGER

Professor Commager's essay is excerpted from a talk he gave as the keynote address for a conference entitled "Unus Ex Multis. Maryland and the Ratification of the U.S. Constitution," on June 25, 1986 at Washington College, Chestertown, Maryland. The conference was sponsored by Washington College and Celebrate Maryland, Inc.

e now commemorate the two hundredth anniversaryof to the point of seeing government begin as if we had lived WtheConstitution. That Constitution was the product, not in the beginning of time. alone of the debates in the federal convention of 1787, or even Or here is the Scots-born James Wilson, speaking in the in the twelve long years of experience with a loose confedera- Pennsylvania ratifying convention: cy, but of that dazzling complex of science and philosophy fa- The science of government seems yet to be almost in a state iiliar to us as the Enlightenmentan enlightenment which of infancy. Governments in ge.zeral have been the result of embraced the classical world of Greece and Rome as well as fraud, force or accident. After a period of 6000 years have the new world of Leibnitz and Immanuel Kant, and which elapsed since the Creation, the United States exhibit to the stretched from Newton to Napoleon in the Old World and world the first instance of a nation unattacked by a foreign from Roger Williams to Thomas Jefferson in the new. force, unconvulsed by domestic strife, assembling volun- Nowhere was the Enlightenment more pervasive or more tarily on the system of government under which they wish effective than in AnterLa, effective both philosophically and their posterity to live. 'practically. In-the Old World its most proaigious achievements But perhaps it was John Adams, who said it best in a letter to were in the discovery of the new worlds of nature and of man, Hezekian Niles a quarter-century later: in the sciences, philosophy, literature and the fine arts; such The colonies had grown up under circumstances of govern- contributions as it made to economics, politics and social well- nent so different there was so great a variety of religions, being had few consequences. But in America the Enlighten- they were composed of so many different nations, their ment, though it boasted its own galaxy of natural philoso- customs, manners and habits had so little resemblance, phers, found expression largely in the realms of politics, law, and their intercourse had been so rare and their knowledge the economy and all those interests which were designed to of each other so imperfect, that to unite them in the same enhance the g "eral welfare. Franklin was its symbol: He not principles in theory and the same system of action was a only "snatched the lightning from the skies, but the scepter very difficult enterprise. The complete accomplishment of it from the hand of tyrants." If the proudest monuments to the in so short a time and by such simple means was perhaps Old World Enlightenment were such triumphs as Newton's a singular example in the history of mankind. Thirteen Principia and Diderot's Grand Encyclopaedia, or the palace clocks were made to strike together a perfection of mecha- and the gardens of Versailles or Don Giovanni, the most en- nism which no artist had before effected. during mouments to Enlightenment in America were the Con- Today we take unity for grantedunity over that vast terri- stitution and the Bill of Rights, products of both philosophy tory between Atlantic and Pacific, Canada and the Gulf of and of common sense. Mexico. But why do we? The United States hadand contin- In a famous letter to the scientist-theologian Dr. Joseph ues to havea more heterogeneous population, more religious Priestly, written just a few weeks after his own inauguration faiths, andas far as nature wentmore and more different to the presidency, Jefferson put his finger on what was most natural environments than any nation of the old world or of remarkable about the expe-°.ment upon which the American Latin America. Why did the United States not go the way of people were embarked. "We can no longer say there is nothingEurope, of the vast continent to the South, or of Africa once new under the sun. This whole change in the history of man isits European masters had withdrawn? Certainly that is what new. The great extent of our Republic is new. Its sparse habi- most European observers foresaw. "In the general union of the tation is new. The mighty wave of public opinion which has providences" wrote the sagacious Turgot, "I do not see a coali- rolled over it is new." He might have added that the choice of tion ... making but one body. It is only an aggregation of parts the foremost political philosopher by the vote of the majority always too much separated... by the diversity of their man- of the plain people was new too. Where else in history had a ners, their opinions, and still .nore by the inequality of its actu- people vindicated Plato's warning that "until philosophers are al forces." kings, the human race will never have rest from its evils." Well The notion that men could come together and create a na- might Jefferson confess that his election .nd in a hotly dis- tion was all but incomprehensible to the eighteenth century, puted contest"augurs well for the duration of the republic." and even as Americans were launching something new under Jefferson's observation on what was "new" merely touched the sun, ruthless masters of Prussia and of France were ab- the surface of the American scene. Never before in history hadsorbing their weaker neighbors. What they did, again, was one generation presided over so prodigious a profusion of in- nothing newimperialism could be traced back to Alexander ventions and creation in the public arena. and Caesar, and modern imperialism was less innovative than Americans largely have taken this for granted: it was the En- theirs. For new concepts of nationalism, for new philosophies, glish and French observers who saw it most clearly. Listen to institutions, and mechanism, you had to look to the new Unit- the English born Tom Paine: "The American" he wrote, "is a ed States. new Adam in a new Paradise." He elaborated on this in his How sobering to recall that in the thirty or forty years or Rights of Man: sofrom the 1770s to the first decade of the new century, a The case and circumstances of America present themselves people with fewer than a million adult males, spread thin over as in the beginning of the world. We have no occasion to an immense territory, with no city over forty thousand, no hazard ourselves upon conjecture. We are brought ct once great centers of learning or culture, managed to create or in-

this Constitution ;- 94 33 vent every major constitutional institution which we boast to- murmurs, and even outcries, against it, but it has stood the day. Moreover, not one of comparable significance has been test of time. We take that pretty much for granted, but nothing invented since that politically-mature populationroughly the comparable to judicial review is to be found elsewhere: The size of Philadelphia's todayelected in one generation Wash- practice is all the more remarkable when we recall that ington, John Adams, Jefferson, Madison, Monroe and John though democracy assumes majority rule, judges who hold of- Quincy kdams, who in turn chose for its Supreme Court three fice for life can veto the decisions of the two popularly elected giants: John Jay, John Marshall, and Joseph Story. branches, i.e. the majority. In theory this limitation on popular Let me submit briefly that corpus of laws, institutions and rule appears paradoxical. If so, it is merely one of the para- inventions which we owe to the founding fathers, and on doxes of the role of the American judicial; in our federal sys- which we still rely. tem. First is the written constitution. That institution has some Another paradox is that a people with a long tradition of claim to be the oldest in our political history. lawlessness and revolution embraced a government founded Second, the elementary but nevertheless revolutionary prin- on law, and Cat a people irreverent to the authority of a king ciple of democracyI use that world in its original meaning of or a church revere a court above all other secular institutions. government by the people. As Jefferson wrote in the Declara- "Where is the king of America?" Tom Paine asked, and an- tion of Independence, governments derive "their just powers swered: "In America the law is king." from the consent of the governed," and it is "the right of the Judicial review is merely the most ostentatious of the limits people to alter or abolish it and to institute new governments."on the legislature. There are a score of other checks and bal- That concept would have been (and long remained) meaning- ances and limitations. It must suffice to list some of them: the less in any Old World country, but in the new world it was tri-partite division of governments; the bicameral legislature; taken for granted. the executive veto; and the power of the legislature to over- A third historic contribution is the practical realization of ride that veto; staggered, but frequent elections ("where annu- federalism and the creation of the first effective federal al elections end, there tyranny begins" said Sam Adams); and, unionand now the oldest. I shall return to this later. as a further safeguard, short terms, limitations on consecutive A fourth invention isagainso taken for granted it excitesterms, andin the past, at leastlow pay. To these we might no interest and no comment: it is the formal end of colonial- add (both in the states and the nation) provisions for constitu- ism, and the institution of the principle of the co-ordinate tional amendments or for new constitutions, i.e., provision for state. Because Americans revolted against a colonial status, legal revolution! they were not prepared to condemn any part of their own ter- All this was a verification, as it were, of that observation by ritory to colonialism. The framers' decision was politicaland the sagacious John Dickinson of Pennsylvania: even moralan historic promise that the American empire For who are a free people? Not those over whom govern- was not to be a replica of Old World empires, bet something ment is reasonably and equitably exercised tut those who new under the sun, a commonwealth based on the equality of live under a government so constitutionally checked and co-ordinate states. That principle was written into the famous controlled that proper promszon is made against it being Northwest Ordinance of 1787 and has survived to this day. otherwise exercised. A fifth contributionperhap, it cannot be called an inven- I deal briefly with three revolutionary contributions to the tion for there were abundant anticipations, if not anteced- science and the practice of government by a generation of the entswas the creation of effective limits on government. founding fathers. All three are of significance not only to Americans, to be sure, had never really known a government America but to the modern world The iirst of these is the with unlimited power (for they managed to evade or confound effective separation of church and state. freedom of religion. such legislation as they disappr wed, and to bribe or intimate That principle, which had its roots deep in our own .iistory, royal governors) but it could be said that Europeans had never has spread widely throughout the civilized world. But it is not really known one that was limited. yet universally accepted. Religious wars flourish and religious The framers did not include a Bill of Rights in the Constitu- freedom is rejected in many parts of the globe today. Catholics tion of 1787. Their reasons were logical, if not sound. that as and Protestants fight in Northern Ireland; Moslems and Jews the new government had only those powers granted to it, and in the Near East, Hindus and Moslems in India and Pakistan; as no power to infringe on the liberties of men was granted, a Christians and Moslems in the Ph" . But the United bill of rights was superflues. But the people did not reason States has never had a religious war, nor persistent religious that way, and they had the support of Jefferson over in Paris, persecution. That good fortune owes much to an early admix- who saw Hamilton's logic as too abstract for popular con- ture of religious groups which implacably imposed religious sumption. Said Jefferson. "A bill of rights is what the people toleration un Americans. there were some 16 religious denomi- are entitled to against every government on earth and what no nations in colonial New York City alone. It owes much to the just government should refuse or rest NI incerence." good fortune of vast territory: religious dissenterslike Mor- Madison responded to that demal / drawing up, and monscould find refuge (if it were needed) in vacant land. It steering through the Congress, the b.-f Rights which has owes much to the total inability of Britain to impose its Estab- ever since been regarded as an integral part of the Constitu- lished religion, the Anglican, on its American colonies. On the tion itself. Nor were liberties limited to those specified. For eve of the Revolution, ti .P Anglican Church was the Estab- the Bill contained another amendment. the Ninth, long, and lished religion in North Carolina but there were only two An- still, neglected, but with unexplored potential. That "Forgot- glican zhurchmen to minister to the whole of that vast tern ten" amendment reads Quite simply: "The enumeration in the tory! But it owes much, toe, to the far-sighted vision of men Constitution, of certain rights, shall not be construed to deny and women like Roger Williams and Anne Hutchinson who es- or disparage others retained by the people." The door, in tablished the tradition of toleration in New England, and much short, is still wide open for the recognition of other rights not to later statesmen like Jefferson whose Virglia Statute for Re- specified in the Bill of Rights itself. ligious Liberty of 1786 excited greater astonishment in Europe, It early became clear that the implementation of the guaran- and greater misgivings, than had either the Declaration of In- tees in the Bill of Rights was the proper function of the judi- dependence or the Constitution itself. ciary. That was the principle later incorporated into American The second of these is the supremacyJohn Adams wrote constitutional law by Justices Marshall and Story. There are "an exact" supremacyof the civil to the military authority.

.34 95 this Constitution Washington was loyal to that principle throughout the Revolu- is the duty and the right of the people to distribute that au- tion, referring to the Congress for any initiative and disdainingthority among gcvernments as they choos.. Second is a realis- the attempt V betray him into seizing command. His New- tic distribution of powers. with those of a general or national burgh Address is now part of the American heritage. "You character assigned to the central government, and those of a will," he said to his officers, local nature to state or local governments, while those that are give one more distinguished proof of unexampled patrio common to both, such as the power to tax or to provide jus- tism and patient virtue, risking superior to the pressure oftice, are left to both. A third essential is that the division be- the most complicated sufferings. And you will by the digni-tween national and state or local authority must rest on some ty of your conduct afford occasion for posterity to say, legal distinction and be indicated in broad Sut flexible terms, when speaking of the glorious example you have exhibited adapted to the exigencies of an ever-changing society and to mankind, had this day been wanting, the world had nev-economy. A fourth is the establishment of some formal mecha- er seen the last stage of perfection fo which human nature nism or institution for clarifying and endorsing a proper distri- is capable of attaining. bution of the exercise of national and local powers. This, in That tradition was not only reaffirmed, but married to far- turn, called for what proved to be one of the most remarkat!e sighted statesmanship, when Lincoln wiped the slate c:ean, as of modern politiccontrivances: dual citizenshipa notion it were, by rejecting any punishment of any kind for taken for granted in the original Constitution and formalized in through the use of the pardoning power. the opening words of the Fourteenth Amendment: "All persons The third unprecedentt_ contribution is the modern politi- born or naturalize.: in the United States and subject to the ju- cal party, something really new under the sun of poiiicsa risdiction thereof, are citizen:4 *1 the United States and of the party which grew from the bottom up, not the top ii ..v:n as in state wherein they reside." England; which was national, not local or regional; and which But, as the Constitution left the hands of its framers and of found its leaders in the common people, not in those who ex- the framers of the Bill of Rights, there was one omission ploited hereditary claims to leadership, as persisted in tr which, with the passing years, took on a threatening character: into the nineteenth century. There was from the ? that was the assurance that all persons in the nation would be fling, too, a special merit in the political party as it eme ,..d inassured of equal rights. That omission was inevitable, to be America: it avoided (for the most part) those ideologies whichsure in the circumstances of the 1790s; it took the Civil War to afflicted and still afflict politics in the Old World and ad- repair it. It was settled in 1865 b the verdict of Appomattox, dressed itself to practical issues which concerned the mass ofaid in 1868 by the Fourteenth Amendment to the Constitution. people. The single time parties broke apart on ideological fhe Amendment provided, in words which have proved to be grounds-1854 to 1860the Union, too, broke apart. the most important in the history of liberty and equality, that I turn finally to what has some claim to consideration as the No state shall... depritvl any person of life, liberty or prop- most successful and enduri,,g contribution of the Constkution- erty, without due process of law; nor deny to any person al Convention. If Madison is conceded to be the "Father of the within its jurisdiction the equal protection of the laws. Constitution," Benjamin Franklin is the father of Federalism. That settled the principle constitutionally, to be sure, but not As early as 1754, on the eve of the Seven Years' War, he had yet politically, practically, or socially. tried to encourage cooperation between colonies and mother President Reagan asserted in his Inaugural Address that "the country by drawing up the Albany Plan of Union, a plan whichnation did not make the states, the states made the nation." It anticipated in many of its features the federalism worked out is a conclusion that might well astonish citizens of all states in 1787. Again, at the opening of the second Continental Con- west of Pennsylvania, for all of these (except perhaps Texas gress, FYanklin came forward with an elaborate draft of what which annexed the United States) were created by Congress, approached the finished Constitution of 1787. During much of governed by Congress in their territorial stage...aid admitted to the War Franklin was off in Paris; back home by 'eighty:five, the Union by presidential approval after the C, -.Tress passed he was chosen president of Pennsylvania, and then became itson their credentials! But that misunderstanding trivial com- first choice as delegate to the Constitutional Convention. pared to a deeper misunderstanding, one whichisreads both There, like Washington, he was a symbol rather than an active history and law. In our constitutional system it is "We the peo- participant. Though Washirgton said scarcely a word during ple" who made and still make both nation and states, each the debates, and Franklin spoke only rarely,may be said forming part of the "more perfect union." that these two men were the most influential members of that The national federalism of Washington and Madison, Hamil- "assemblage of demigods" merely by their presence. ton and John Marshall, was not a n,ethod of destroying local There is no more difficult problem in the whole of politics self-government, it was a product of the war for independence than that of contriving a viable federal system. Federalism is and of the struggle for national survival. Its character was best not only the basic institution of American constitutionalism. Itdescribed by John Marshall (himself an ardel.:. T'rter of is also the most complex, the most controversial, and perhaps the new Constitution in the Virginia ratifying contention) in a the most vulnerable. decision which challengedis own state of Virginia: There were, in fact, three American experiments in federal. In war we are or people, in all commercial regulations we ism. Two of them failedThe Confederation of 1783, whose are one and the same people. ... The government which inadequacy was speedily remedied by the Federal Convention alone is capable of controlling and managing their inter- of 1787, and the Confederate States of America, created in ests in all respects is the government of the Union. Ameri- 1861, and modelled closely on that of the United States except ca has chosen to be, in many respects and to many pur- in one crucially important matter: it asserted and guaranteed poses, a nation, and for all these purposes her government the sovereignty of the states! States' rights, which broke up is complete: to all these objects, it is competent. (The the Union, killed the Confederacy, but the Union survived and Cohens v. Virginia, 1821) was triumphantly reconstructed. The Bicentennial of the Constitution should inspwe us with Why did the Federal Union of 1787 survive when others a renewed respect for its character and its principles. Our failed? experience with nullification in South Carolina, with the Civil There are four essential ingredients to effective federalism; War and its aftermath, with treat depressions like those of all rise to the dignity of principles. First is a recognition that 1873, 1893, and the 1930s, with two great World Wars, drama- the source of all political authority is in the people and that ittizes the primary role of the national government in preserving this Consfitnion 96 the harmony of the Union and the necessity of national au- our public and private rights, and the natural ally of all thority to achieve the purposes set forth in the preamble, par- the. state governments in the administration of justice and ticularly justice and the general welfare. the promotion of the general prosperity. ,s belayed not Justice Story concluded his classic Commentaries on the for its power, but for us beneficence, not because it con- Constitution (1833) with a tribute to the nation at ulitx logical trols but because it sustains the common inkrests and the and eloquent, and a verdict which is as valid today as it was common liberties and the common rights of the people. 150 years ago: (Commentaries:515) No man will pretend to say that the affection for the state governments has been sensibly diminished by the opera- Henry Steele Commager is Simpson Professor Emeritus tion of the general government. If the latter has become of American history at Amherst College and the author of more deeply an object of regard and reverence, of attach- many books, including The Search for a Usable Past (1967), ment and pride, it is because it is the parental guardian of and the editor of Documents of American Hictory (1963).

"Outcast" Rhode IslandThe Absent State by JOHN P. KAMINSICI

66-rwelvestates sent delegates; Rhode Island did not at- By early 1787, the Country Party's program was well estab- tend." This statement has been and will be repeated lished and a large majority of Rhode Islanders expressed ap- over and over again as we celebrate the Bicentennial of the proval at the spring elections. A vociferous minority, however, United States Constitution. By now it has become a well- denounced the paper-money program. Nationally, Rhode Is- known fact that only Rhode Island refused to appoint dele- land's policies gained notoriety and a wave of verbal abuse as- gates to the Constitutional Convention that met in Philadel- saulted the state. Newspapers in particular were filled with de- phia during the summer of 1787. But few know why Rhode nunciations of "Rogue's Island." Some even demanded the Island remained aloof. abolition of the state as a political entity, proposing to divide The fundamental cause of Rhode Island's behavior lay in its territory between Connecticut and Massachusetts. The economics. As in other states, Rhode Island's economy had more Rhode Island was censured, the more Rhode Islanders as been thrown into turmoil by the Revolutionary War. Postwar a whole supported the Country Party and derided the interfer- depression in Rhode Island had caused the state to polarize ing Congress. politically and in April 1786, the Mercantile Party, which fa- The desire to gig,_ Congress power to control the radical vored strengthening Congress' powers, was thoroughly repudi- economic policies of some of the states served as a central ated at the polls. The Country Party, which promised a pro- reason for calling the Constitutional Convention. Rhode Is- gram of debtor relief, won overwhelming victories in both the land's radicalism stood out above all others. Congress itself legislative and gubernatorial elections. had denounced Rhode Island's paper money in 1786 when it In May 1786 the Country Party began implementing its anti- refused to accept the currency in payment of the ccrigres- depression program, which centered around the issuance of sional requisition. Many Americans agreed with George Wash- ammo in paper money to be loaned by the state primarily ington's description of Rhode Island as "outcasts from the So- on real estate collateral. The enormous amount of money is- ciety." Thus, Rhode Islanders knew that the Constitutional sued, suspicion of paper money brought about by bad wartime Convention was aimed, at part, at them. On the other hand, as experience with continental currency, and the requirement long as the Articles of Confederation remained in operation, that creditors accept the paper in payment combined to guar- Country Party leaders knew that their economic program antee that the currency would decline in value. In fact, depre- would be immune from congressional interference. The una- ciation was exactly what Country Party leaders wanted. With animity required of the states to amend the Articles or to grant depreciated currency, debtorsboth public and private additional powers to Congress meant that Rhode Island could could more easily pay their obligations, contracted originally exercise a veto over any proposed change. in more valuable currency like gold or silver. One dollar in On 14 March 1787, the Rhode Island Assembly met and read gold in 1786 would buy several times more than one dollar in the congressional resolution of 21 February calling the Consti- paper, but as legal tender the paper would be equal to guld in tutional Convention. A motion to appoint delegates to the Con- paying off old debts. The state thus would be able easily to vention was rejected by a substantial majority of those pres- ',ay its huge public debt, which had gravitated into the hands ent. During the first week of May 1787 another legislative ses- of a relatively few merchant-speculators. These few had been sion convened and assemblymen from Providence and New- reaping large profits from interest paid by the state at the export urged a reconsideration of an appointment to the Conven- pense of farmers impoverished by the taxes levied to meet tion. The Assembly approved the appointment by a majority of these obligations. Farm bankruptcies and foreclosures became two, but the Upper Hou.,e voted it down by a two-to-one ma- common. The short-term goal of the Country Party was "To jority. Relieve The Distressed." A long-term goal was to redeem the In response to this second rejection, twelve merchants and entire state debt with almost worthless paper money. This re- tradesmen from Providence who opposed the state's economic demption began in December 1786 and was completed less program took matters into their own hands. With general than three years later. James M. Varnum, a Rhode Island delegate to Congress, as em-

36 97 this Constitution issary, they sent a letter to the Constitutional Convention that and to add strength and permanance thereto, upon Constitu- expressed their distress at Rhode Island's decision. "Deeply af-tional principles." The Assembly deputies from Newport and fected with the evils of the present unhappy times," the mer- Providence entered an official protest to this letter stating that chants wrote, they thought it proper to tell the Convention of "the Legislature have at various times agreed to Conventions the hope "of the well inform'd throughout this State" that Con-with the Sister States," and the appointment of delegates to gress might be given additional powers over commerce ai.d these conventions had never been considered "inconsistent taxation. The group asked that the Convention allow Varnum with or any Innovation upon the Rights and Liberties of the "to take a seat with them; when the Commercial Affairs of the Citizens of this State." On 17 September Governor Collins for- Nation are discuss'd. On 28 May the Constitutional Conven- warded both the letter and the protest to Congress where they tion read the letter but refused the request. were read a week later. In mid-June, the Rhode Island Assembly again turned down Why then did Rhode Island oppose the Constitutional Con- a proposal to send delegates to Philadelphia. In this instance, vention? First and foremost, Rhode Islanders believed that the the Upper House voted "yea" and the Assembly "nay." But theConvention would take some decided action against the radi- apparent reversal was owing to some political chicanery. The cal economic policies of the state legislatures. Country Party Country Party, in control of both houses of the legislature by leaders, unused to federal involvement, did not want to partici- sizable majorities, decided that it was politically opportune forpate in such an inhospitable assembly. Their primary goal was its members in both houses to be able to say to some of their to redeem the state debt with depreciated state currency; little constituents that they had supported sending delegates to the else mattered. Their aloofness, they hoped, might even lessen Convention, but to be able to say to other constituents that the authority of the Convention by denying it an unanimous they had opposed the appointment of delegates. The apparent representation of the states. Country Party leaders worried lit- flip-flop by the houses was in reality a well-orchestrated movetle about the actual implementation of anti-Rhode Island mea- that allowed Country Party legislators to be on both sides of sures. They saw no need to fight these anticipated discrimina- this issue. tory measures in the hostile arena of the Convention when Two days after the last rejection, General Varnum wrote to Rhode Island knew that it could veto any change in the Arti- George Washington, president of the Constitutional Conven cles of Confederation proposed by the Convention. tion, fuming. Varnum wanted Washington to know "that the But the strategy backfired. Rhode Island's failure to appoint measures of our present Legislature do not exhibit the real delegates to the Constitutional Convention proved advanta- character of the State. They are equally reprobated & abhor'd geous to advocates of a new constitution. The obstinne:, of by Gentlemen of the learned professions, by the whole mer- Rhode Island demonstrated clearly that the newly-proposed cantile body, & by most of the respectable farmers and me- Constitution could not be ratified by all of the states as re- chanicks. The majority of the administration is composed of aquired by the Articles of Confederation. Rhode Island's ab- licentious number of men, destitute of education, and many ofsence thus helped persuade the Constitutional Convention to them void of principle. From anarchy and confusion they de- provide that ratification by nine states would be sufficient to rive their temporary consequences, and this they endeavor to establish the Constitution among the ratiting states. prolong by debauching the minds of the common people, Rhode Island's obstreperousness continued. Its legislature whose attention is wholly directed to the Abolition of debts refused on seven occasions to call a state convention to con- both public & private." sider the Constitution. Not until January 1790, after all of the All over the country, people decried Rhode Island's action. state debt had been redeemed, was a ratifying convention On 2 September Francis Dana, a Massachusetts delegate to thecalled. The Convention met during the first week of March Constitutional Convention who was unable to attend because 1790 and proposed a bill of rights and amendments to the of illness, wrote his fellow Convention delegate Elbridge GerryConstitution that were submitted to the people for their con- that Rhode Island's "neglect will give grounds to strike it out sideration in town meetings. The Convention then recessed of the Union & divide [its] Territory between [its] Neigh- until late May. bours.... Therefore a bold politician wou'd seize upon the oc- The continued failure of Rhode Island to ratify the Constitu- casion [of its] abominations and anti-federal conduct presents tion exasperated Congress. On 13 May 1790 the United States for annihilating [it] as a separate Member of the Union. I thinkSenate passed a bill to boycott the wayward state. No Ameri- they are now fully ripe for the measure, and that the other can ship could enter Rhode Island, and no Rhode Island ship Members of the Union, nay all Mankind, must justify it as righ-could enter the United States. The bill also prohibited land teous & necessary." transportation and provided that the recalcitrant state pay In response to the widespread disapproval, Governor John Congress $25,000 by December 1790 in payment of Rhode Is- Collins called the legislature into special session in mid-Sep- land's share of the expens,_-of the old Confederation govern- tember 1787. A joint legislative committee was appointed to ment. draft a letter to Congress explaining why the legislature had Now under seige from Congress, Rhode Islanders began to refused to appoint delegates to the Convention. The letter, press for ratification. On 24 May 1790, the day that the state adopted on 15 September, acknowledged the "many severe Convention reconvened, a Providence town meeting instructed and unjust sarcasmes propagated against us" for failing to ap- its Convention delegates on their course of action should the point Convention delegates, but it asserted that the legislature Constitution be rejected again. The delegates were ordered to could not appoint such a delegation because a state law pro- confer with delegates from Newport and other towns in apply- vided that only the people could elect delegates to Congress. Aing to Congress for protection if and when the towns seceded legislative appointment to the Convention which intended to from he state. Rhode Island had had enoughit could no propose amendments to the Articles of Confederation was felt longei stay out of the Union. On the 29th of May 1790 the Con- to be a violation of the spirit of this law. (The Committee did vention voted 34 to 32 to ratify the Constitution. The foarteen- not explain the discrepancy between this position and the factmonth separation was overRhode Island was again one of that each house of the legislature on dIferent occasions had the United States. believed that it was proper to appoint delegates to the Consti- tutional Convention.) Nevertheless, the legislature, it said, John I'. Kaminiski is the editor of The Documentary History of looked forward to joining "with our Sister States in being in- the Ratification of the Constitution and the Bill of Rights 1787- strumental in what ever may be advantageous to the Union, 1791, at the University of Wisconsin, Madison.

. f) this Constitution 1 Cs 98 37 Who Was Who in the Constitutional Convention: A Pictorial Essay of Its Leading Figures by MARGARET HORSNELL

It all began on May 25, 1787, a rainy Friday morning, as the delegates assembled at the State House in Philadelphia where eleven years earlier the Declaration of Independence had been voted and signed. Noll these delegates were about to participate in another event of major significance: the Constitutional Convention. Of the seventy-four delegates who were selected to attend the Convention, only fifty-five eventually participated and, of those, only thirty-nine signed the completed document. The following are paintings and engravings, made around the tune of the Convention, of eleven of the men who played key roles in shaping and presenting plans of government, and :a hammering out compromises that were crucial to the successful completion of that extraordinary document.

Edmund Randolph Roger Sherman Portrait: Flavius J. Fisher Portrait: Thomas Hicks after Courtesy of Virginia State Ralph Earl Library, Richmond, VA Courtesy of Independence National Historical Park Philadelphia, PA

Roger Sherman, delegate from Connecticut, was one of the pivotal figures in the Con- stitutional Convention. Sher- man introduced a compromise which reconciled the Virginia and the New Jersey plans. A typical product of Yankee New England, Sher- man was hard working and honest, an astute self-educated lawyer. Although he came from modest circumstances, The fir3t serious debate of he had worked his way up the Convention was initiated the social ladder. In general when Edmund Randolph in- he thought the government troduced the Virginia Plan. under the Articles of Confed- Randolph, a member of one eration satisfactory; yet he of the first families of Virgin- also realized that it needed ia, only iihis early thirties, adjustments to remedy specif- had already been elected ic defects. William Pierce de- Governor of Virginia. The in- scribed Sherman as "awk- troduction of the Virginia ward ... and unaccountably Plan changed the course of strange in his manner. But in the Convention because, rath- hi train of thinking there is er than revising the Articles something regular, deep, and of Confederation as the dele- comprehensive." George Washington the Continental Armies. gates had been instructed, the To Sherman, politics was Portrait: Rembrandt Peale Washington spoke only once delegates now began to de- the art of compromise. There- Courtesy of Independence during the Convention and bate the merits of new a fore, not surprisingly, he in- National Historical Park then on a very minor issue. scheme of government. troduced the Great Compro- Philadelphia, PA His most important function Although Randolph played at the Convention was to an active role in the Conven- As the first order of bust serve as a symbol of probity tion's deliberations, he re- ness, George Washington was and legitimacy. William fused to sign the completed unanimously elected as the Pierce, a fellow delegate who document alleging that he presiding officer. He was fif- wrote brief biographical was concerned about the "in- ty-five rai-b old, a striking sketches of all the members definite and dangerous pow- figureover six feet tallele-of the Convention, observed ers given to Congress." These gant, energetic, and graceful. of Washington, "Having con- reservations were apparently s. Among the delegates as well ducted these states to inde- overcome after the Constitu- as among most Americans, pendence and peace, he now tion was ratified because Washington had won an un- appears to assist in framing a Randolph accepted tote posi- paralleled reputation by his Government to make the Peo- tion of Attorney General in I service as the commander of ple happy." Washington's first cabinet.

38 99 this Constitution mise that would break the tion of how to divide sover- deadlock the Convention had eignty between the states and been struggling with for more the national government, than six weeks. The contro- thereby laying the founda- versy centered on the questions for the federal system. tion of whether representation was to be based on population or whether each James Wilson state was to be equally repre- Portrait. Society Portrait sented. Sherman's solution Collection was one he had brought up Courtesy of The Historical eleven years earlier during Society of Pennsylvania the debate on the Articles of Philadelphia, PA Confederation, namely that representation should be James Wilson was one of based on two different princi- the most influential members ples. The lower house should of the Pennsylvania delega- be apportioned according to tion. Along with James Madi- population and in the upper son, Wilson was probably the house the states would be most sophisticated political equally represented. This thinker at the Convention. compromise was accepted by Pierce said of him "Mr. Wil- the delegates on July 16. son ranks among the foremost in legal and political knowledge." John Rutledge As the debate on represen- Portrait: John Truir hull tation in the legislative body Courtesy of Yale Um -city developed, the question of Art Gallery, New Hav( CT how slaves were to fit into the new scheme of government came up. At this point Wilson proposed that apportionment in the lower legisla- Gouverneur Morris The Preamble would thus be- tive body should also include Portrait: Thomas Sully gin: "We the People of the three-fifths of all other per- Courtesy of The Historical United States." Given Morris' sonsnamely slaves. The Society of Pennsylvania conservative predilections, it question of wnether slaves Philadelphia, PA is unlikely that this change in should be counted as people phrasing was motivated by a for the purposes of represen- Governeur Morris spoke desire to increase popular tation was not new. The more than any other delegate participation in the new three-fifths formula had been at the Convention. He was frame of government; it may recommended by the Con- witty, sophisticated, an aristo-however have been intro- Planter, lawyer, business- gress under the Articles of crat to the core. Morris had duced as a means of legiti- man, head of the aristocratic Confederation in 1783 and little faith in the common mizing the activities of the South Carolina delegation, had become known as the man and therefore favored Convention. The opponents John Rutledge served with "federal ratio." Apparently property qualifications on suf-of the Constitution could not particular skill as the Chair- Wilson believed that the frage. Pierce says of him that claim that the new govern- man of the Committee of De- three-fifths compromise on he was "one of those Gen- ment was based upon "aristo- tail. That Committee pieced slavery was the price that ius's in whom every species cratic" principles if the au- together, from various mo- had to be paid for the sup- of talents combine to render thority to originate that tions which had come before port of the Deep South for him conspicuous and flour- government rested with the the Convention, the first draft popular representation in the ishing in public debate, [yet] people. Whether it was inten- of what was to become the legislative bodies. At any rate, with all those powers he is tional or not, by this fortu- Constitution. In the process, the three-fifths compromise fickle and inconstant, never itous shift of phrase another the Committee converted the on slavery set the stage for pursuing one train of think- step was taken in transferring general law-making power of the Great Compromise. ing." the sovereign power from the Congress into eighteen specif- As a member of the Com- states to the people. ic powers beginning with the mittee of Style, it was Morris By Monday, September 17, power to tax and ending with who put the finishing touches1787, the delegates at the the "Necessary and Proper" on the Constitution. Perhaps C ,nvention had completed clause. his most important contribu- their work, and Madison The Committee also placed tion in this area appears in made this closing entry in his a number of restrictions on the Preamble. The original Journal: "The Constitution be- the power the states might Preamble, written by the ing signed by all the Members exercise. By granting some Committee of Detail, after theexcept Mr. Randolph, Mr. Ma- power to the national govern- phrase, "We the People," list- son, and Mr. Gerry who de- ment and withholding some ed each ofle states; Morris clined giving it the sanction power from the state govern- changed t'_ language by de- of their names, the Conven- ments, the Committee had leting the states' names and tion dissolved itself by an Ad- "ome up with a partial solu- substituting "United States." journment sine die."

this Constitution 100 39 Luther Martin sion became known as the (No artist listed) "Supremacy" clause. Al- Courtesy of Museum and Li- though this clause appeared brary of Maryland Hist( ry to grant additional power to Baltimore, MD the national government, the question of what agency of Ornery and brilliant, Luthergovernment would overturn Martin was one of the most state laws that conflicted fascinating personalities at with national laws was left the Convention. An unyield- unresolved. Martin pointed ing advocate of the rights of out that at the time he made the states, Martin confoundedthis motion it was not estab- the delegates by providing lished that there would be an the original language for the inferior national court sys- Supremacy Clause. Born in tem; therefore he assumed the backcountry of New Jer- that the state courts would sey, Martin was from modest settle any disputes that might circumstances. Blessed with arise. an outstanding mind, he On September 4, Martin left made his way to Princeton the Convention in disgust. He where he became one of the refused to sign the document top scholars in his class. declaring that the Constitu- At the Convention Martin tion would create a consoli- ceoke frequently, and to dated "kingly government." many delegates tiresomely, on the issue of states' rights. For Martin, the states were William Paterson sovereign entities. The states (No artist given) and not the people were the Courtesy of Midlantic Na- basic building blocks within tional Bank/North, West Pat- the political system. Since erson, NJ each of the states was an equal independent unit, any plan to diminish the equality of the states was anathema to Martin. George Mason ual without trial or conviction Perhaps his most important Portrait. D. W. Boudet (after in ordinary judicial proceed- contribution was made on a lost painting by John Hes- ings), and prohibiting the useJuly 17. At that time the dele- selcus) of ex post facto laws. On Sep-gates were discussing how Courtesy of Virginia Muse- tember 12, Mason suggested disputes between the national um, Richmond, VA that a general bill of rights beand the state governments added to the Constitution. He were to be resolved. Martin, a Ranked with Washington observed that "it would give fervent advocate of states' and Jefferson, George Mason great quiet to the people." El- rights, made the following as- was an immensely influential bridge Gerry, a delegate from tonishing motion: "that the political figure in the state of Massachusetts, concurred. acts of Congress and treaties On June 15, William Pater- Virginia. A wealthy planter- However, Roger Sherman shall be the supreme law of son introduced the New Jer- aristocrat and slave owner, spoke against the bill of the respectiye states ... and sey Planwhich was the he opposed the extension of rights on the grounds that it the judiciaries of theseveral small states' response to the slavery. He wrote the famous was unnecessary because the states shall be bound thereby Virginia Plan. Paterson, dele- Virginia Declaration of Rights state governments had decla- in their decisions...." gate from New Jersey, was which was an eloquent state- rations of rights which were The language of this mo- educated at Princeton and ment of human freedom and not repealed by the Constitu- tion was subsequently modi- trained as a lawyer. He had a which, after the Constitution tion. The Convention voted fied and eventually this provi-profound respect for property was ratified, served as a basis down the addition of a bill of rights. Paterson believed that for the Bill of Rights. Pierce rights. freedom could flourish only described Mason as "a Gen- The failure of the Conven- in a stable economic environ- tleman of remarkable strong tion to provide any basic list ment. Like other moderate pmers, [who] possesses a of guaranteed rights and the nationalists, Paterson realized clear and copious under- Pxtension of the slave trade that it was necessary to in- standing." for twenty years turned Ma- crease the power of the cen- During the Convention, he son against the Constitution tral government; yet he also actively supported the provi- and he refused to sign the wished to protect the rights sions of the Constitution pro- document. Later in the Virgin- of the states. William Pierce hibiting the suspension of the ia Ratifying Convention, Ma- characterized him as "one of right of habeas corpus by son became one of the princi- those kind of men whose Congress, prohibiting the use pal spokesmen opposing the powers break in upon you, of bills of attainder (legisla- acceptance of the document. , and create wonder and aston- tion that punishes an individ- 1 ishment."

40 101 this Constitution William Samuel Johnson Portrait: Albert Rosenthal after Gilbert Stuart Courtesy of Independence National Historical Park Philadelphia, PA

Sophisticated, dignified, William Samuel Johnson was from one of the most socially prominent and wealthy families of Connecticut. Through- Margaret Horsnell is a profes- out the Convention, Johnson sor of history at American In- had been an active behind- ternational College in Spring- the-scenes participant. As the field, Massachusetts. Convention wound to an end, Johnson offered a proposal which squarely raised for the A Brief Reading List first time the issue of the ju- about the Creation of risdiction of the Supreme the Constitution Court. The question of judicial re- Bernard Bailyn, The Ideologi- viewthe right of the Su- cal Origins of the Ameri- preme Court to overturn laws can Revolution (1967). that are not constitutional Catherine Drinker Bowen, was never really resolved Miracle at Philadelphia during she Convention. The (1966). closest the delegates came to Christopher Collier and deciding the issue occurred James Collier, Decision in during a debate on the orga- Philadelphia: The Consti- nization of the Court. At that tutional Convention of time, Johnson offered an 1787 (1986). amendment which stated that John Hope Franklin. From "the jurisdiction of the Su- Slavery to Freedom (1979). preme Court shall extend to Linda K. Kerber, Women of all cases arising under this the Republic: Intellect and Constitution and the laws Ideology in Revolutionary passed by the Congress of America (1980). the United States." According Forrest McDonald, Noma to Madison, the delegates ac- Oi do Seclorum: The Intel- cepted this provision with the lectual Origins of the Con- understanding that the juris- stitution (1985). diction of the Supreme Court Richard B. Morris, Witnesses extended to only those cases at the Creation: Hamilton, involving the judiciary and James Madison and positioned himself in Madison, Jay, and the not to cases involving the Portrait: Charles Willson front of Washington so that Constitution (1985). President or the Congress. Peale he could more easily follow Jack N. Rakove, The Begin- Courtesy of Thomas Gil- the proceedings. As a result nings of National Politics: crease Institute of American of his prodigious labors, Mad- An Interpretive History of Histors, and Art, Tulsa, OK ison's "notes" have become the Continental Congress the principal source of infor- (1979). At the. Convention, the mation of these extraordinaryClinton Rossiter, 1787: The modest but gifted James Mad-and secret meetings. Grand Convention (1966). ison played dual roles: as the Not only did Madison re- David P. Szatmary, Shays' Re- reporter of the proceedings cord . that happened but he bellion: The Making of An and as one of the principal shaped the substantive issues Agrarian Insurrection authors of the document. Be- of the Convention. Madison (1980). cause the delegates took an enthusiastically supported a Carl Van Doren, The Great oath of secrecy, there were strong national government Rehearsal: The Story of the no official records of the de- and the abandonment of the Making and Ratifying of bates of one of the most im- Articles of Confederation. It the Constitution of the portant events of American was his philosophy of govern- United States (1986). history. William Jackson, the ment, embodied in the Virgin-Gordon S. Wood, The Cre- official secretary, seems to ia Plan, which set the tone ation of the American Re- have kept only a simple re- for the Convention. Pierce public, 1776-1787 (1969). cord of motions and votes. said of him, "Every person Alfred E. Young, ed. The But James Madison became seems to acknowledge his American Revolution: Ex- the Convention's most assidu-greatness. He blends together plorations in :ne History ous chronicler. Madison at- the profound politician, with of Amertcan Radicalism tended all of the meetings the scholar." (1976). 102 this Constitution j 41 A Daybook for 1787 Philadelphia July 9, 1787 to July 13, 1787

The following pages are =opted from A Daybook for 1787, a collection of essays by the historians at Independence Nation- al Historical Park. The complete two-volume work, which cov- ers the entire year, is available either in book form or on floppy disks. For further information, write to Independence National Historical Park, Attn: Eastern National Park and Monument Association, 313 Walnut Street, Philadelphia, PA 19106; telephone: (215) 597-2569.

Philadelphia

Monday, July 9, 1787

PHILADELPHIA TODAY -= "'-" =_1 After a night of heavy thunder but little rain, the day - dawned sunny and hot (mean of 81° at Springmill). Tobacco, snuff, chocolate, mustard, and the best pickled sturgeon were some of the items advertised on the front page of the Pennsyl- vania Gazette during the week. Despite a post Revolutionary War depression, Philadelphia remained a thriving center of commerce where the stores were stocked with fine teas, lin- ens, wines, and other goods from all over the world. tory to many delegates. After a brief discussion, the matter CONFEDERATION TODAY was referred to a Committee of Eleven (made up of a member from each state present) for resolution. NEW YORKCongress did not convene today, lacking a quorum. But that didn't stop Manasseh Cutler, lobbyist from DELEGATES TODAY Massachusetts, from doing business. Cutler, who wanted to buy over a million acres of Ohio land for the Ohio Company In the morning, Washington posed for the popular local art he represented, met with the Congressional committee ap- ist, Charles Willson Peale. In the evening, he dined at the pointed to decide the fate of the No.thwest Territory. No home of Pennsylvania delegate Robert Morris, his host and a agreement was reached. leading Philadelphia merchant. Later he accompanied Mrs. His business plans in limbo, Cutler took time to describe the Morris to the home of Dr. John Redman, a prominent physi- impressive chambers of Congress on the second floor of New cian, for tea. He also wrote a letter to Hector St. John De York's Congress Hall. The quarters boasted a silk canopy over Crevecoeur, a Frenchman who had just arrived in this country. the President's chair, red damask curtains, mahogany desks, He thanked him for his offer to transmit letters to the Marquis and morroco leather chairs for the delegates. Portraits of Gen-de Lafayette, whom Washington called his "good and much es- eral Washington, other continental generals, and life-size like- teemed friend." nesses of the King and Queen of France hung on the walls. Daniel Carroll of Maryland took his seat in the convention today. CONVENTION TODAY LOOKING BACK Today, and for the rest of the week, the convention wrestles the thorny issue of how to choose representatives for Con- Wealth or Population? gress. Pennsylvanian Gouverneur Morris, as the chairman of During the zonvention, the delegates struggled with c arious the Committee of Five, presented a report recommending that methods to decide representation. Now the issue had nar- the first house should consist of 56 members. In the commit rowed down to wealth and population. Every member agreed tee's formula, Virginia, the largest state, would have 9 repre- that both wealth and population should be the qualifications sentatives, and Rhode Island and Delaware, the smallest for representation. Population was fairly simple to measure, states, would have 1. The legislature would regulate future rep- but wealth was difficult to quantify. The slave and plantation resentation based on wealth and population. One repre- economy of the South represented greaterealth than the sentative would be elected for every 40,000 inhabitants. small farm and commercial society of the North. Should The delegates accepted the portion giving the legislature theslaves, then, be counted as wealth or population? William Pat- power to regulate the number of representatives. But the sec- erson of New Jersey suggested that slaws be counted as prop- tion specifying the number of representatives from each state erty rather than as part of the population. In a similar view, and limiting the total membership to only 56 was not satisfac- Rufus King of Massachussctts wanted the slave population

42 103 this Constitution counted in the apportionment for taxation. Witha combination ing a favourable issue to the proceedings of both proposals, slaves could be counted of our Convention, as wealth and pop- and do therefore repent having hadany agency in the busi- ulation. Yet, while population and taxation might be linked,the ness." delegates could not decide a meaningful way to tie other types Later that day he dined with his host Robert Morris.That of wealth to representation. In other words, thedelegates wereevening went to the Southwark Opera House just not so much opposed to wealth as a determining factor; they south of the city limits to attend a James Townley play, HighLife Below simply could not devise a method to quantify it. the Stairs.

Tuesday, July 10, 1787 LOOKING BACK State Sumptuary Laws PHILADELPHIA TODAY Pennsylvania's sumptuary laws reflected the prevailingbe- lief of the era that the conduct of the individualin his community directly influenced the public welfare. After theWar for On this warm, sunny day, the Supreme Court ofPennsylva- Independence, the theater was banned in Pennsylvania nia summoned two Quakers to serve as jurors. Since the as "un- becoming republican virtue and frugality." Nevertheless,until Quaker faith prohibited taking oaths, the twomen disqualified the state repealed its sumptuary law in 1789, plays themselves from service. The Chief Justice refused oftea were to accept disguised as lectures or moral dialogues. Hamlet,for instance, their position and fined them 61 pounds each andsent them to was advertised as "a Moral and Instructive Tale called Filial jail until they paid the penalty. The two Quakers challenged Piety: Exemplified in the History of the Prince of the decision with a writ of habeus corpus, questioning Denmark." whether The play George Washington attendedon this day was adver- the judge had the authority to impose the fine and commit tised as a "concert" with the title "The Servants Hall them to jail for non-payment. in an Up- roar." Incidentally, the Southwark Opera House-tually was a theater. CONFEDERATION TODAY NEW YORKAgain Congress did not have enoughstates to Wednesday, July 11, 1787 make a quorum. Massachusetts lobbyist, Manasseh Cutler,met with the committee of Congress continuing his negotiationsto purchase land for the Ohio Company. At thesame time the PHILADELPHIA TODAY committee was drafting the Northwest Ordinance, which would establish a system of government for thearea north- On this hot, partly cloudy day, the Mutual west of the Ohio River. During his stay in New York, Cutler Assurance Com- pany completed its survey and issued a policyon Benjamin had developed a strong rapport with the committeemembers, Franklin's two new three-story rental houses and he reported that he had looked at a draft of the ordinance on Market Street. The ingenious Dr. Franklin "fireproofed" hishouses by plaster- and submitted his remarks and proposed amendmentsto the ing the floors between the joists, under the committee. steps and risers of the stairs, and the walls and ceilingsas well. Since the insur- Cutler would leave for Philadelphia the next day, but before ance surveyor, Mr. I. Jones, made special reference to theex- his departure, he described his final dinner with severalmem- tensive plaster work in his report, he obviously bers of Congress. In addition to a tasty meal, he sampled was impressed not with the extra fire suppression details made by theinventive less than ten varieties of wine, as well as "bottles of cyder, doctor. porter, and several other kinds of strong beer." CONFEDERATION TODAY CONVENTION TODAY NEW YORKAn ordinance to establisha government in the The delegates continued their discussion of representation vast area north and west of the Ohio River in the House, focusing on the number of was read before congressmen that Congress for the first time today. Itwas assigned for a second would be elected from each state. The Committeeof Eleven, reading the next day. appointed the previous day, recommended increasing thenum- Secretary of War Henry Knox reported that hostile ber of representatives from 56 to 65. Several counter-proposals Indians were plundering villages and murdering the inhabitantson Vir- suggested different numbers, but each motionwas defeated. ginia's frontiers. Although a 1500-man During the course of the debate, James Madison army could protect the of Virginia frontier, he noted that the government couldnot support such moved that the number of representatives should bedoubled. a large force. The Secretary recommended that Colonel Josiah He argu.d that the majority of a simple quorum of 65 mem- Harmar, commander and chief of the armedforces, should try bers was too small to represent and vote for all the inhabit- to make a peace treaty. If he failed, Harmar could ants of the United States. Althouga several members agreed call out the Kentucky and Pennsylvania frontier militiato attack the Indi- with Madison, the body voted 9 a) 2 to leave thenumber of ans. congressmen at 65 members. CONVENTION TODAY DELEGATES TODAY The delegates agreed that acensus would be taken every In a letter to Alexander Hamilton, who had returnedto Newten years to measure the population and York, George Washington expressed his frustration determine representa- with the tion in the House. But just how thecensus would be counted convention's lack of progress and with those whohesitated to was not clear and the debate on the issue was lively. Many create a strong national government. "I almost despair of see- delegates had balked at a proposal to count slavesat a three- this Constitution 104 43 fifths ratio of the actual population. South Carolinians Pierce With the promise and later fulfillment of a new more effective Butler and General Charles Pinckney believed blacks should system of government, however, and an improved economy be counted equally with whites, which was voted dovo. North- other companies formedstocks as well as mutuals. erners such as James Wilson of Pennsylvania wonderedif Only two of these early companies survive: The Philadelphia blacks should be considered as citizenseach would be Contributionship and the Mutual Assurance Company Both counted in the censusor as property, which would mean thathave prospered over the centuries and expanded their geo- rime were included. The convention recessed withoutreach- graphic areas of operation as well as their products. They re- ing a decision on how the census was to be implemented. main today, as in the past, friendly competitors. DELEGATES TODAY CONVENTION TODAY John Langdon of Portsmouth, N.H. was in such a hurry to The delegates continued their discussion on the method for leave for Philadelphia his friend, Richard Champney, did not determining represer!ation in the House, gradually moving to- have an opportunity to ask him to purchase a flax cleaning ward a spirit of compromise. Gouvernour Morris of Pennsylva- machine. Champney hoped Langdon could buy the equipment nia argued that states and people should be taxed in propor- for about 30 pounds and have it delivered by September for tion to the number of representatives in Congress. During the the flax harvest. With the new machine, Portsmouth would notdebate, Morris was convinced to change his motion to read need to rely on Boston for processing flax seed. Langdon pur- that states and people should be taxed "directly." The amend- chased the machine and shipped it home. ed motion was adopted. William Paterson of New Jersey noted in a letter to his wife At the conclusion of today's discussion, the Convention vot- that during this week of intense debate Philadelphia was un- ed to give the legislature the power to vary representation ac- bearably hot. In fact, he wrote that it was "the warmest place I cording to wealth and numbers of inhabitants. William Samuel have been in." Johnson probably expressed the feelings of many delegates when he stated that population could actually be one of the LOOKING BACK best measures of wealth. He also stated that the number of blacks should be included in any computation for representa- Fire Insurance Companies tion, which would marry wealth and population together. A Fire insurance companies formed in England shortly after census would be taken six years after the adoptionof the Con- the Great Fire of London in 1666 and were well established bystitution and, thereafter, each ten years. All free inhabitants the early eighteenth century. Not until 1752 when Benjamin and 3/5 of the slaves would be counted. Franklin and other prominent Philadelphians formed The Phil- adelphia Contributionship for the Insurance of Houses from DELEGATES TODAY Loss by Fire, however, was fire insurance successfully launched in the New World. An earlier attempt in Charleston, George Washington dined at the Morris house and drank tea South Carolina had failed after only four years when a large with Mrs. Anne Livingston. Mrs. Livingston was the daughter fire swept the city and bankrupted the company. of Dr. William Shippen and the estranged wife of Henry Beek- Franklin and his colleagues planned their new venture care- man Livingston, son of Judge Robert R. Livingston. The gener- fully, presumably patterning the company after the mutual sys-al had tea with Mrs. Livingston several times during the contem of insurance of the Amicable Contributionship of London. vention. They drafted articles of agreement, which hung in the courthouse, and obtained favorable responses from 75 individuals. Within a few months the Philadelphia Contributionship began Thursday, July 12, 1787 operation, its directors examining surveys, issuing policies and ordering fire marks - four clasped hands on wood - to be PRILADELPHIA TODAY placed on insured structures. The company's success paved the way for other insurance ventures, but it wasn't until 1784 The weather continued hot (mean of 770), despite the that its first competitor - The Mutual Assurance Company for clouds. The front page of the Pennsylvania Gazette contained Insuring Houses from Loss by Fire - formed. A decision by the ads for five books and pamphlets, ranging from "An Oration membership of the Contributionship to ban trees in front of in-Commemorating the Independence of the U.S." to "Dr. Young's sured properties (no doubt fearing it hampered the efforts of Night Thoughts" to "An EssayOn the Causes of the Variety fire fighters) caused a number of policyholders to break away of Complexion and Figure in the Human Species." The pub- and, together with other Philadelphians, form a new company lishing industry flourished in Philadelphia as did the newspa- which would accept trees in front of such properties as an ad-per business. At this time, there were ten newspaperspub- ditional risk. Not surprisingly they chose as their symbol a lished in the city. green tree which appeared on policies, the company'sseal and its fire marksresulting in the company's nickname, The CONFEDERATION TODAY Green Tree. This too was a mutual company where no one individual achieved personal gain; it provided protection for all. NEW YORKSecretary of War Henry Knox reported a letter Residents of other states were, no doubt, aware of these from Colonel Harmar, which stated that the illegal settlers he ventures, and eventually followed suit, the earliest being the had been sent to evict from Vincennes, a settlement on the Mutual Assurance Company for Insuring Houses from Loss by Wabash River, were gone. Knox noted that the expedition was Fire in New York in April of 1787. a complete loss, because Harmar was in a position todeal These appeared to be the only fire insurance companies op with the Wabash Indians if they should attack the settlements. erating in this country prior to the Constitutional Convention. The Board of Treasury recommended that a Pennsylvania 10 I; this Constitution 44 Continental Officer should not be paid for his unsettled ac- CONVENTION TODAY counts until it received a certificate from the Commissioner of Army Accounts stating that the claimant did not owe any mon- The delegates continued debating the report of the July 2 ey to the government. The bureaucracy was alive and well in committee recommending the Connecticut compromisepro- the 1780s. portional representation in the House and equal representation by state in the Senate. Old issues were rehashed and progress LOOKING BACK seemed slow. Edmund Randolph of Virginia moved to drop wealth as a The Indian Situation factor in fixing each state's representatives in Congress and At the conclusion of the Revolutionary War, Congress was use free population plus 3/5 of the slave population as a basis faced with the problems of governing and disposing of the for representation. Gouverneur Morris of Pennsylvania op- lands west of the Appalachians. By 1787 several states had posed it saying that if slaves were people they should be fully abandoned their claims to various areas and the Land Ordi- represented and if -they were property they should not be rep- nance of 1785 provided an orderly system to partition and sell resented at all. Randolph's motion passed, 9-0-1. the land. Another problem was what to do with the Indians. In 1783 Congress appointed a five-man commission to meet the DELEGATES TODAY natives and establish a boundary between white and Indian settlements to the Falls of the Ohio River. The Iroquois were Massachusetts delegate Caleb Strong and Manasseh Butler bullied into giving up their clahns in the Northwest with a few breakfasted at Massachusetts delegate Elbridge Gerry's rented paltry presents in 1784. Several months later the Chippewa, Ot- house on Spruce Street. Later that afternoon Gerry accompa- tawa, Delaware, and Wyandot tribes were intimidated into sur-nied Cutler to Franklin Court. Cutler was enthralled' ofith rendering their lands and in turn were forced on toreserva- Franklin the man, his library, and practical inventions. These tions. inventions included: a large rocking chair equipped with a fan These accommodations were unsatisfactory both to the na- operated with a sink foot pedal, a long artificial arm and tives and the white settlers. Between 1785 and 1787 frontiers- hand that took books irom his library shelves, and a letter men invaded Indian lands and the natives attacked whites. copying press designed to make a facsimile of written or print- Colonel Harmar was appointed to command the federal mili- ed documents. tary force in the area and lands. Harmar attempted to keep the During the conversation, Franklin produced a pickled two- frontier under control, but his limited resources in money and headed snake in a vial. The doctor ",,gas then going to mention manpower made the job difficult Throughout 1787 the many a humorous matter that had that day taken place in the Con- references to Indians suggests that the government was fearful vention in consequence of his comparing the snake to Ameri- of potential wide-scale violence on the frontierwithout ade- ca," Cutler wrote, "[but] he seemed to forget that everything in quate power to deal with the situation. Convention matters was (to be held in strict confidence) which stopped him, and deprived me of the story he was going to tell." Friday, July 13, 1787 Jonathan Dayton of New Jersey wrote William Livingston, governor of his state and the leader of his delegation, to vent PHILADELPHIA TODAY his frustration at the lack of progress in the convention. Yet he added that it would be improper to relate any specific infor- The heat spell broke, giving Philadelphians a pleasant sunny mation. day (mean 71°), "but very dusty." John Mason, a Philadelphia upholsterer, advertised price LOOKING BACK cuts of one-third in the Pennsylvania Chronicle: venetian blinds for 7 shillings 6 pence; handmade easy chairs for 15 With little discussion and virtually no :,pposition, the United shillings; and rooms papered at 2 pence per yard. States in Congress Assembled passed the Northwest Ordi- Renaissance man Manasseh Cutler, a Massachusetts minis- nance today. By this action, Congress made a fundamental ter, lobbyist, doctor, schoolmaster, lawyer, botanist, astrono- break with traditional European practices. Instead of acquiring mer and colonizer, spent the day sightseeing. He visited the new territories as colonies subject tt. the rule of a parent State House and its yard (Independence Square), the Universi- state, the United States decided that newly acquired areas ty of Pernsylvania (he was not impressed), Peale's Museum could become full-fledged states with all privileges and re- (he was very impressed) and several houses of worship. He sponsibilities of the original thirteen. also called on five important persons, including Bishop Wil- Each would go through three phases of government. First, it liam White of Christ Church, Massachusetts delegate Elbridge would be ruled by a governor appointed by Congress; second, Gerry and Dr. Franklinwith whom he had tea. when the male population reached 5,000, the citizens could elect a legislature and send a delegate to Congress; and third, CONFEDERATION TODAY when there were 60,000 people, the territory could enter the Union as a statecompletely equal to the original thirteen. A NEW YORKThe Congress had a quorum and could act. bill of rights guaranteed each citizen freedom of speech, wor- And act it did, giving a third reading to and passing the North- ship, and other basic liberties. As a final and important provi- west Ordinance, one of the most significant pieces of legisla- sion, the ordinance prohibited slavery. tion in the country's history. By providing a new system of Although the population requirements have changed, the government for the area northwest of the Ohio River, the law process of admission established by the Northwest Ordinance further opened the frontier to settlement and paved the way continues today. Alaska and Hawaii were admitted as statesin for the admittance of new states into the union. 1959. .'cl 106 this Constitution 45 THE FABRICATION OF THE AMERICAN REPUBLIC, 1776-1800: A SYLLABUS by JACK P. GREENE

77us syllabus has been designed under the auspices of Pruject 87 to provide a common. group of readings for a series of seven discussion seminars to be z:rganized by libraries or community groups for tlw Amencan Constitutional Bicentennial. These seminars are intended to help people obtain a deeper understanding of the historical process that led to the creation of the American republic and the Federal Constitution. Primary reading materials are all from documents of the period published ii paperback volumes. They havebeen selected so that no more than four hours of reading time will be required for each s ?lima. To help people put these materials into a broade, historical perspective, the syllabus suggests oief supplementary readings, also available in paperback editions, from some of the better secondani works on the constitutional era.

SOURCE BOOKS THAT THE SYLLABUS WILL CITE BY SHORT TITLE: J. Hector St. Jean de Crevecoeur,Letters from an American Fanner(ed. Albert E. Stone, New York. Penguin Books, 1981). $4.95. Cited asLetters from an American Farmer. Jack P. Greene, ed.,Colonies to Nation, 1763-1789. A Documentary History qf Um American Revolution(New York. W. W. Norton, 1975). $11.95. Cited asColonies to Nation. Cecilia M. Kenyon, ed.,The Antffederalists(Boston. Northeastern Univ. Press, 1986), $9.95. Cited asAntffederalists. Adrienne Koch, ed.,Notes of Debates in the Federal Convention of 1787 Reported by James Madison(Athens, Ohio. Ohio University Press, 1966). $16.00. Cited asNotes of Debates. Marvin Meyers, ed.The Mind of, Founder. Sources of the Political Thought of James Madison(New York. Irvington, 1981). $7.75. Cited asMadison. Ridiard B. Morris, ed.,Alexander Hamilton and the Founding of the Nation(New York...iarper &I Row, 1969). Out of Print. Citedas Hamilton. Merrell Peterson, ed.,The Portable Thomas Jefferson(New York: Penguin Books, 1977). $7.95. Cited asJefferson. Clinton Rossiter, ed.,The Federalist(New York: New American Library, 1961). $2.95. Citedas Federalist. Gordon S. Wood, ed.,The Rising Glory of America, 1760-1820(New York. Geor;,e Braziller, 1971). $4.95. CitedRising as Glory.

Seminars

1. EXPERIMENTS IN REPUBLICAN GOVERNMENT Readings: The Road to Independence Thomas Paine,Common Sense,1776,in Colonies to Nation,pp. 270-83. William Smith, Jr., "Thoughts as a Rule for my own Conduct," June 9, 1776,in Colonies to Nation,pp. 286-91. Landon Carter, Diary, May 1, 29, 1776,in Colonies to Nation,pp. 291-92. John Dickinson, "Arguments Against ... Independence," July 1, 1776,in Colonies to Nation,pp. 292-96. John Adams to Abigail Adams, July 3, 1776,in Colonies to Nation,pp. 296-97. The Declaration of Independence, July 4, 1776,in Colonies to Nation,pp. 297-301. Prescriptions for Independent Government John Adams, Thoughts on Government,1776, inColonies to Nation,pp. 306-11. Four Letters on Interesting Subjects,1776, inColonies to Nation,pp. 311-15. "The Interest of America," 1776,in Colonies to Nation,pp. 315-18. Carter Braxton,Address to the Convention of ... ViTinia,1776,in Colonies to Nation,pp. 318-25. The People the Best Governors,1776,in Colonies to Nation,pp. 325-332. Two Early Constitutions The Virginia Bill of Rights, June 12, 1776,in Colonies to NatIon, pp.332-34. The Virginia Consftition, June 29, 1776,in Colonies to Nation, pp.336-39. The Pennsylvania Constitution, Sept. 28, 1776,in Colonies to Nation,pp. 339-45. The People as Constituent Power: ConstitutionMaking in Massachusetts The Concord Resolutions, Oct. 21, 1776,in Colonies to Nation,pp. 347-48. Theophilus Parsons,Result o f the Convention o f Delegates .. at ... Ipswich,May 12, 1778, in Colonies toNation,pp. 348-52. An Address of the Convention ... to their Constituents,1780,in Colonies to Nation,pp. 352-57. Problems with the EarlyConstitutions Benjamin Rush,Observations Upon the Present Government of Pennsylvania,1777,in Colonies to Nation,pp. 359-69. Thomas Jefferson,Notes on the State of Virginia,1781-82, inColonies to Nation,pp. 369-74. Supplementary Background Reading: Gordon S. Wood,The Creation of the American Republic, 1776-1787(New York. W. W. Norton, 1969). $10.95. pp. 125-255. 2. THE DEMANDS AND PROMISES OF A REPUBLICAN SOCIETY IN AMERICA Readings: The New World and the Old John Adams, On the Feudal and the Canon Law,1765,in Rising Glory,pp. 25-39. Crevecoeur,Letters from An American Farmer,pp. 66-105.

107 this Constitution Samuel Williams, A Discourse on the Love of Country,1774, inColonies to Nation,pp. 376-86. Richard Trice,Observation on the Importance of the American Revolution,1784,in Colonies to Natior,pp. 422-25. The Need for Virtue John Warren, An Oration, Delivered July 4th, 1783,inRising Glory,pp. 55-69. Samuel Adams, et. al., "The Sans SouciClub," 1785,in Rising Glory,pp. 137-53. Education foraRepublic Benjamin Rush,Thoughts upon the Mode of Education Proper iu a Republic,1786, inColonies to Nation, Noah Webster,A Collection of Essays and Fugitive pp. 399-404. Writings,1790, inlasing Glory,pp. 154-72. God's Kingdom in America Jonathan Parsons,Freedom from Civil and Ecclesiastical Isaac Backus, Slavery,1774,in Colonies to Nation,pp. 388-90. A Door Opened for Equal ChristianLiberty,1783,in Rising Glom,pp. 71-77. The Virginia Statute Ivr ReligiousFreedom, January 16, 1785, Samuel Hoplins, in Colonies to Nation,pp. 390-92. A Treatise on the Millennium,1793,in Rising Glory,pp. 41-51. Republicanism and Chattel Shivery Richard Wells, A Few Milieu( Reflections,1774, inColonies to Nation,pp. 392-396. Henry-Laurens to John Laurens, Aug.14, 1776,in Colonies. to Nation,pp. 396-97. Thomas Jefferson,Notes on the State of Virginia, 17r,1-82, inColonies to Nation,pp. 397-1/8. Supplementary Background Reading: Wood, Creation of the AmericanRepublic,46-124.

3. A LESS THAN PERFECTUNION Readings: The First National Constitution The Articles of Confederation, Mar. 1, 1781,in Colonies to Nation,pp. 428-36. The Problematic Character of National Survival George Washington's Circular Letter to the States, June 8, 1783,in Colonies to Nation,pp. 436-43. Tensions and Problems Alexander Hamilton,A Letter from Phocion,and A Second Letter fromPhocion, 1784,in Colonies to Nation,pp. 445-53. George Mason to Patrick Henry, May6, 1783,in Colonies to Nation,pp. 453-55. Aedanus Burke, Considerations on the Order of Cincinnati,Oct.10, ,'"q2, Charles Pinckney, in Colonies to Nation,pp. 455-66. Speech .. on the Question of a Treaty with Spaintug. 16, 1786, "Curtius" vs. "Willing to Learn" in Colonies to Nation,pp. 474-80. on the "Honesty" of Paper Money,The Political In telligencer, And New-Josey 1786, inColonies to Nation,pp. 481-95. Advertiser,Jan.4,25, Debates and Proceedings of the GeneralAssembly of Pennsylvania on Colonies to Nation,pp. 495-505. ... the Charter of the Bank /of North America f, 1786, in Discontent in Massachusetts: The Votesof the Hampshire County Convention, Aug. 22, 1786,in Colonies to Nation,pp. 506-07. George Washington to Henry Knox,Dec. 26, 1786,in Colonies to Nation,pp. 507-08. Successes of the Articles The Land Ordinance of 1785, inColonies to Nation,pp. 466-69. The Northwest Ordinance, July 13,1787, inColonies to Nation,pp. 469-74. Movement for Constitutional Reform Address of the Annap..:Is Convention, Sept. 14, 1786,in Colonies to Nation,pp. 509-11. James Madison, "Vices of the Political System of the United States," Apr. 1787,in Colonies to Nation, Supplementary Background Reading: pp. 514-19. Wood,Creation of the American Republic, 393-467,or Jack N. Rakove, His ..ity of the Continental Congress The Beginnings of National Politics:An Interpretive (Baltimore: The Johns Hopkins Press, 1983).$8.95. pp. 243-399. 4. FRAMING THE CONSTITUTION:CONSENSUS AND COMPROMISE Readings:

The Virginia Plan and the Debate over theStructure of National Government Convention Debates, May 29-June 4, June 7, 13,1787, inNotes on Debates,pp. 26-27, 81-87, 115-17. Alternative Proposals Conve..Zion Debates, Junto 16, 18, 1787,in Notes on Debates,pp. 118-21, 129-31. Deadlock and Compromise Convention Debates, June 19, 25-26, 29, 30,July 2, 5, 13, 16, 1787, inNotes on Debates, 297-302. pp. 140-48, 151-54, 181-201, 211-19, 226-42, Clzah of Interests convention Debates, July 16, Aug. 21-22, 25, 19, 1787, inNotes an Debates,pp. 266-276, 458-59, 530-31, 547-52. The Definition and Role of the People Commie-. 3 ebates, July 23, Aug. 7, 9, 1787,inNotesonDebates,pp. 348-53, 396-405, 418-22. Appraisals of the Convention's Work wention Debates, Sept. 12, 15, 17, 1737,inNotes on Debates,pp. 630, 650-59. The Finished Constitution !onstitution of the United Sates, September 17, 1787,in Colonies to Nation,pp. 547-56. ,ementary Background Farrand,The Framing of the Constitution (New Haven: Yale Univ. Press, 1962). $8.95.pp. C4-123, or ClintonRossi*er, 1787: The Grand Convention(New Yoe:: Macmillan, 1966). Out ofPrint. pp. 79-256. this ConsMullon 108 5. NEW LIGHT ON THE SCIENCEOF GOVERNMENT: ATTACK ONTHE CONSTITUTION Readings: Objections to the Constitution 1787, in An Ofederalists, pp. 191-95. . to the Proposed Constitution, Oct. George Mason, Objections . 197-208. Richard Henry Lee[ ?], Letters from. the FederalFanner, Oct. 1, 1787, in Antiftderalistz, pp. Fear of Consolidation 1787, in Antifederalists, pp. 208-14. Lee[ ?], Letters from a Federal Farmer, Oct. 9, 392-405. Thomas Tredwell, Speech in the New York RatifyingConvention, June 1788, in Antifederalists, pp. Impossibility of Republican Government in a LargeTerritory James Winthrop[ ?], "Letters of Agrippa," Dec.3, 1787, in Antifederalists, pp. 131-34. Inadequacy of Representation 369-89. Melancton Smith, Speech in the New York RatifyingConvention, June 1787, in Antifederalists, pp. Artistocratic Tendencies Samuel Bryan, "The Letters of Centinel," Oct. 5,1787, in Antifederalists, pp. 2-14. Insufficiency ofChecks andBalances "The Letters of John De Witt," Nov. 5, 1787, inAntifederalists, pp. 105-09. George Clinton, "The Letters of Cato," Jan. 3, 1788, inAntifederalists, pp. 318-22. Defective Institutions Antifederalists, pp. 389-92. Jilbert Livingston, Speech in the New YorkRatifying Convention, June 24, 1788, in Clinton, "Letters of Cato, Nov. 8, 1787, in Antifederalists, pp.302-07. Robert Yates, "The Letters of Brutus," Jan. 31-Mar.20, 1788, in Antifederalists, pp. 334-57. Fears of Sectional Oppression Winthrop[ ?], "Letters of Agrippa," Feb. 5, 1788, inKenyon, ed., Antifederalist, pp. 152-60. Rawlins Lowndes, "Ifeech in the South Carolina RatifyingConvention, in Kenyon, ed., Antifederalist, pp. 178-83. Price of Ratification ed., Antifederalists, pp. Massachusetts and Virginia Ratifying Conventions,Proposed Bill of Rights Amendments, 1788, in Kenyon, 423-39 Supplementary Background Reading: Constitution (Chicago: Univ. Herbert J. Storing, What the Anti-Federalists were For:The Political nought of the Opponents of the of Chicago Press, 1981). $4.95, or Wood, Creationof the American Republic, 471-564.

6. NEW LIGHT ON THE SCIENCEOF GOVERNMENT: THE FEDERALISTEXPLANATION Readings: The Advantages of Union and the Virtues of theConstitution Alexander Hamilton, Federalist #1, #15, pp.33-37, 105-13. John Jay, Federalist #2, pp. 37-41. James Madison, Federalist #37, pp. 224-31. Fear of Disunion Hamilton, Federalist #6, #9, pp. 53-60, 71-77. The Promise of Repuhlican Government in an ExtensiveTerritory Madison, Federalist #10, #14, pp. 77-84, 99-105. Adequacy of Representation Madison, Federalist #55, 56, pp. 341-50. A Republican Government Madison, Federalist #39, 46, pp. 240-55, 294-300. Sufficiency of Checks and Balances Madison, Federalist #47, 51, 300-08, 320-25. Defending the Construct Madison, Fedendist, #62, 376-82. Hamilton, Federalist #67, 69, pp. 407-11, 415-23. Hamilton, Federalist #78, 82, pp. 464-72, 491-95. A Device for Sectional Accommodation Madison, Federalist #54, pp. 336-41. The Redundancy of a Bill ofRights Hamilton, Federalist #84, pp. 510-20. Supplementary Background Reading: Federation and Free Wood, Creation of the American Republic, 471-564, orGottfried Dietze, Tile Federalist: A Classic on Government (Baltimore: Johns Hopkins Univ. Press, 1960).$7.95.

7. THE NEW REPUBLIC: ALTERNATIVEVISIONS Readings: The People and Their Government Thomas Jefferson to Edward Carrington, Jan. 16,1787, in Jefferson, pp. 414-15. Jefferson to James Madison, Jan. 30, 1787, in Jefferson, pp.415-18. Jefferson to Joseph Priestley, Mar. 21, 1801, in Jefferson,483-85. Hamilton, "Americanus," II, Feb. 8, 1794, in Hamilton, pp.24-25. Hamilton, Federalist #26, in Hamilton, pp. 25-26.

109 this Constitution IS Hamilton to Edward Carrington, May 26, 1792, in Hamilton, pp. 124-25. Hamilton to Washington) Aug. 18, 1792, in Hamilton, pp. 125-27. Hamilton, "Milieus," Sept. 11, 1792, in Hamilton, pp. 127-28. "Catullus[Hamiltonj to Aristides," in Hami'ton, pp. 128-29. Bill of Rights Jefferson to Madison, Mar. 13, 1789, in Jefferson, 438-40. Madison to Jefferson, Oct. 17, 1788, in Madison, 205-09. Political Principles Jefferson to Francis Hopkinson, Mar. 13, 1789, in Jefferson, 435-37. Jefferson to Elbridge Gerry, Jan. 26, 1799, ir. Jefferson, 477 -79. Past, Present, and Future Jefferson to Madison, Sept. 6, 1789, in Jefferson, 444-51. Madison to Jefferson, Feb. 4, 1790, in Madison, 230-34. The Drift of Government Hamilton, Report on Manufactures, Dec. 5, 1791, in Hamilton, pp. 360-74. Jefferson to George Washington, Sept. 9, 1792, in Jefferson, 455-64. Jefferson to William Short, Jan. 3, 1793, in Jefferson, 464-66. Jefferson to Madison, Dec. 28, 1794, in Jefferson, 467-70. Jefferson to Phillip Mazzei, Apr. 24, 1796, in Jefferson, 470-71. Hamilton to Washington, Aug. 18, 1792, in Hamilton, pp. 317-19. Hamilton to Washington, Sept. 1, 1792, Aug. 2, 5, 1794, in Hamilton, pp. 485-87. Hamilton, "Fact," Sept. 15, 1792, in Hamilton, pp. 319-20. Madison, "Report on the Virginia Resolutions," 1799-1800, in Madison, 299-349. Power and Parties Madison, Essays for the Party Press, 1791-92, in Madison, pp. 235-48. Jefferson to John Taylor, June 1, 1798, in Jefferson, 474-77. Supplementary Background Reading: Joyce Oldham Appleby, Capitalism and a New Social Order: The Republic Vision of the 1790s (New York. New York Univ. Press, 1984). $10.00. pp. 1-105.

Subscription Information 1987-1988

Subscriptions received by June 1, 1988 will include five issues, beginning with issueno. 14 (Spring, 1987) and ending with issue no. 18 (Spring, 1988). Publication of this Constitution will conclude with issueno. 18. Individual copies of issue no. 13 (Winter, 1986) through issue no. 17 (Winter, 1987)can be purchased for $4.00 each. Tssue no. 18 (Spring, 1988) an expanded issue can be purchased for $6.00. Issue nos. 1-12 are out of print. Contact Project '87 for information on ordering 10 or more copies ofone issue. Orders must be prepaid; purchase orders cannot be accepted. All orders should besent and made payable to: Project '87, 1527 New Hampshire Avenue, N.W., Washington, D.C. 20036, ATTN: Publications.

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Directory of Bicentennial Organizations

This directory of Bicentennial organizations, drawn from information available to Project '87and to the Commission on the Bicentennial of the United States Constitution, is designed to provide brief information about groupsplanning national programs. The list is not comprehensive and many ()wan izat ions nonplanning programs may not be included. The list also does not 'include local or state groups, colleges oi universities, media ()manizations or most federal agencies. More information on those institutions can be obtained from the Commission on the Bicentennial, at the addressbelow, and from the state Bicentennial commissions (listed in this Constitution, Spring 1987). The programs are described by the following hey. AV-audio-visual, C-con petit ions, ED-educational programs;EX-exhibits; M- meetings, conferences or lectures, P-publications, TM-teaching materials.V-Organizations identified by the letter "V" are those planning major Bicentennial programs that include, an array of events and publications. These organizations creatematerials for a wider audience. Action for Children's American Council of theAmerican Library Center for Civic Television Blind Association Education 46 Austin Street 1010 Vermont Ave., N.W. 50 E. Huron St. 5115 Douglas Fir Road Newtonville, MA 02160 Suite 1100 Chicago, IL 60611 Calabasas, California 91302 (617) 527-7870 Washington, D.C. 20005 (312) 944-6780 (818) 340-9320 (AV) (202) 393-3666 (V) (ED, M) Agency for (M,P) American Management Center for the Study of Instructional American Enterprise Association the American Technology Institute 135 W. 50th St. Constitution Box A 1150 Seventeenth Street, N.W. New York, NY 10020 University of Wisconsin Bloomington, IN 47402 Washington, D.C. 20036 (212) 586-8100 Humanities Bldg., Rm. 5218 (812)339-2203 (202) 862-5920 (EX) Madison, WI 57306 (AV) (19 American Newspaper (608) 263-1865 American Association ofAFL-CIO Publishers Association (P) Community and Junior 815 Sixteenth Street, N.W. The Newspaper Center Center for the Study of Colleges Washington, D.C. 20006 Box 17407 the Constitution National Center for Higher (202) 637-5000 Dulles International Airport P.O. Box 987 Education (ED) Washington, D.C. 20041 Carlisle, PA 17013 One Dupont Circle, No. 410 American Federation of (703) 648-1000 (717) 245-1280 Washington, D.C. 20036 Teachers (ED, TM) (M, (202) 293-7050 555 New Jersey Ave., N.W. American Philatelic Chamber of Commerce (M) Washington, D.C. 20001 Society of the United States American Bankers (2C2) 879-4400 P.O. Box 8000 1615 H St., N.W. Association (ED & TM) State College, PA 16803 Washington, D.C. 20062 1120 Connecticut Ave., N.W. American Historical (814) 237-3803 (202) 659-6000 Washington, D.C. 20036 Association (EX) (V) (202) 467 -4000 400 A Street, S.E. American Philosophical Chicago Historical (ED&C) Washington, D.C. 20003 Society Society American Bar (202) 544-2422 104 South Fifth St. Clark St. at North Ave. Association (See Project '87) Philadelphia, PA 19106 Chicago, Illinois 60614 750 North Lakeshore Drive American Hotel and (215) 627-0706 (312) 642-4600 Chicago, IL 60611 Motel Association (EX, M) (EX) (312) 988-5728 888 Seventh Ave. American Political The Claremont Institute New York, NY 10106 (V) Science Association for the Study of American Civil (212) 265-4506 1527 New Hampshire Avenue,Statesmanship Liberties Union (AV, EX) N.W. 4650 Arrow Highway 132 West 43rd Street American Judicature Washington, D.C. 20036 Suite D-6 New York, NY 10036 Society (202) 483-2512 Montclair, CA 91763 (212) 944-9800 25 East Washington St. (See Project '87) (714) 621-6825 (ED) Chicago, IL 60602 Camp Fire, Inc. (M) American Conservative (312) 558.6900 4601 Madison Ave. Close Up Foundation Union (AV) Kansas City, MO 64112 1235 Jefferson Davis Hwy. (816) 756-1950 38 Ivy St., S.E. American Legion Arlington, VA 22202 Washington, D.C. 20003 P.O. Box 1055 (V) (703) 892-5400 (202) 546-6555 700 N. Pennsylvania St. (V) (M,P) Indianapolis, IN 46204 (317) 635-8411 (V) 111

this Constitution 50 Commission on the Girls Clubs of America Masons- Bicentennial of the 205 Lexington Avenue National History Day United States New York, NY 10016 Supreme Council, 11201 Euclid Ave. Constitution (212) 689-3700 Ancient Accepted Cleveland, OH 44106 736 Jackson Place, N.W. (V) Scottish Rite of Free- (216) 421-8803 Washington, D.C. 20503 Historical Society of Masonry (Northern (C) (202) 872-1787 Pennsylvania Masonic Jurisdiction) National Trust for (V) 1300 Locust Street (Joint effort with Southern Historic l'reservation Committee on the Philadelphia, PA 19107 Jurisdiction) 1785 MassachusettsAve., Conl,Z.itutional System (215) 732-6200 P.O. Box 519 N.W. 1755 Massachusetts Avenue, (EX, AV) 33 Marrett Rd. Washington, D.C. 20036 N.W., Suite 410 History Teaching Lexington, MA 02173 (202) 673-4000 Washington, D.C. 20036 Alliance (617) 862-4410 (EX) (202) 387-8787 400 A Street, S.E. (19 New-York Historical P) Washington, D.C. 20003 The Mentor Group Society Communications (202) 544-2422 160 CommonwealthAve. 170 Central Park West Workers of America (ED) Boston, MA 02116 New York, NY 10024-5194 1925 K St., N.W. Institute of Early (617) 262-4555 (212) 873-3400 Washington, D.C. 20006 American History and (M) (EX, M, P) (202) 728-2382 Culture National Archives New York Public (P) National Archives and Library The College of William Records Administration Congressional Youth Mary and Colonial Fifth Avenue and 42ndSt. Washington, D.C. 20408 New York, NY 10018 Leadership Council Williamsburg (202) 523-3099 1511 K St., N.W. P.O. Box 220 (212) 930-0679 (1') Washington, DC 20005 Williamsburg, VA 23187 (V) (202) 638-0008 (804)253-5117 National Associationof Organization of (ED) (M, P) Secondary American Historians Council for the Jefferson Foundation School Principals 112 N. Bryan St. Advancement of 1529 18th St., N.W. 1904 Association Dr. Bloomington, IN 47401 Reston, VA 22091 Citizenship Washington, D.C. 20036 (812) 335-7311 (703) 860-0200 (1') One Dupont Circle (202) 234-3688 (C, ED) Washington, DC 20036 (TM) Philadelphia Center for (202) e61-2583 Joint Center for National Association of Early American Studies (M) Political Studies Student Councils University of Pennsylvania Daughters of the 1301 Pennsylvania Avenue, 1904 Association Dr. 3810 Walnut Street American Revolution N.W., Suite 400 Reston, VA 22091 Philadelphia, PA 19104 (703) 860-0200 (215) 898-3487 1776 D St., N.W. Washington, D.C. 20004 (C, ED) Washington, D.C. 20006 (202) 626-3500 (M & P) (202) 628-1776 (P) National Center for Project '87 (V) League of Women Constitutional Studies (Joint effort of American Disabled American Voters of the United P.o. Box 37110 Historical Association and Washington, D.C. 20013 American Political Science Veterans States (202) 371-0008 3725 Alexander Pike 1730 M St., N.W. Association) Cold Spring, KY 41076 (V) 1527 New HampshireAve., Washington, D.C. 20036 N.W. (606) 441-7300 (202) 429-1965 National Conference of (P) (A V, M) Christians and Jews Washington, D.C. 20036 Federation of State Library of Congress 71 Fifth Ave. (202) 483-2512 New York, NY 10003 (V) Humanities Councils Washington, D.C. 20540 (202) 287-5108 (212) 206-0006 Public Research, 1012 14th St., N.W., Suite1207 (ED, TM) Washington, D.C. 20005 (EX, P) Syndicated (202) 393-5400 National Council forthe 4650 Arrow Highway The Lilly Library Suite D-7 (P) Indiana University Social Studies Montclair, CA 91763 Bloomington, IN 47405-3301 3501 Newark Street, N.W. Independence National (714) 621.5831 (812) 335-2452 Washington, D.C. 20016 Historical Park (202) 966-7840 313 Walnut Street (EX) (P) Lions Clubs (ED, TM) Rotary International Philadelphia, PA 19106 1600 Ridge Ave. (215) 597-7127 National Endowment International Evanston, IL 60201 300 22nd St. for the Humanities (V) , (312) 328-0100 Girl Scouts of the Oak Brook, IL 60570 Bicentennial U.S.A. (312) 986-1700 InitiativeDivision of (P) (ED, EX) General Programs Smithsonian Institution 830 Third Ave. and 51st St. Office of the Assistant 1100 Pennsylvania Avenue, New York, NY 10022 Secretary for History and (212) 940-7500 N.W. Art Washington, D.C. 20560 (ED, M) Washington, D.C. 20506 (202) 786.0271 (202) 357-1776 (EX & M) (V) 112 this Constitution

51 U.S. Department of the United States Capitol U.S. Department of Supreme Court Education Army Historical Society Historical Society Office of the Secretary of the 200 Maryland Avenue, N.E. Office of the Deputy Under 111 Second Street, N.E. Secretary Army Washington, D.C. 20002 Washington, D.C. 20002 Washington, D.C. 20310.0101 (202) 543-8921 Room 3073 (202) 543-0400 400 Maryland Avenue, S.W. (EX,P) (V) (9 Washington, D.C. 20202 (202) 732-4610 (C)

The United States Constitutioncontinued from inside front cover

fin

Convention by Junius Brutus Steams. Virginia Museum,Richmond, VA. Washington Addressing the Constitutional

SECTION 4. prescribed in each of holding Elections for Senatorsand Representatives, shall be The Times, Places and Manner Law make or alter such Regulations,except as to State by the Legislature thereof: butthe Congress may at any time by the Places of chusing Senators. such Meeting shall [be on thefirst Monday in The Congress shall assemble atleast once in every Year, and December.3 unless they shall by Law appoint adifferent Day.

SECTION 5. Qualifications of its own Members, and aMajority of Each House shall be the Judgeof the Elections, Returns and be do Business: but a smaller Number mayadjourn from day to day, and may each shall constitute a Quorum to Manner, and inder such Penalties aseach House may authorized to compel the Attendanceof absent Members, in such provide. Members for disorderly Behaviour,and, with the Each House may determine the Rulesof its Proceedings, punish its Member. Concurrence of two thirds, expel a time publish the same, exceptingsuch Parts as Each House shall keep a Journal ofits Proceedings, and from time to and Nays of the Members of eitherHouse on any question shall, at may in their Judgmentrequire Secrecy; and the Yeas Present, be entered on the Journal. the Desire of one fifth of those of the other, a.'journ for morethan three Neither House, during the Session ofCongress, shall, without the Consent be sitting. days, nor to any other Place thanthat in which the two Houses shall

3. This clause has been changed bythe 20th Amendment.

1 1 3 this Constitution 52 SECTION 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their Respective Houses, and in goingto and returning from the same: and for any Speech or Debate in either House, they shall not be questioned inany other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed toany civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall havebeen :ncreased during such time: and no Person holding any Office under the United States, shall bea Member of either House during his Continuance in Office.

SECTION 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senatemay propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomea Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objec- tions to that House in which it shall have originated, who shall enter the Objections at largeon their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree topass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the senate and House of Representativesmay be necessary (except on a question of Adjournment) shall be presented to the President of the United States: and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed bytwo thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case ofa Bill.

SECTION 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, topay the Debts and provide for the common Defence and general Welfare of the United States: but all Duties, Imposts and Excises shall beuniform throughout the United States: To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coiii, and fix the Standards of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States, To establish Post Offices and post Roads; . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventorsthe exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captureson Land and Water; To raise and support Armies, bt.t no Appropriation of Money to that Use shall be fora longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of themas may be employed in the Service of the United States, reserving to the States respectively, the Appointment of Officers, andthe Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square)as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the Statein which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings:And 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 inany Department or Officer thereof.

SECTION 9. The Migration or Importation of such Persons as any of the States now existing shall thinkproper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, buta Tax or duty may be this Constitution 114 53 imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. [No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.4 No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law: and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

SECTION 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No state shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the revision and Controul of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

ARTICLE II SECTIGii 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. [The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, ana of the Number of Votes for each: which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Sen- ate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed: and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President: and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote: A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.5 The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes: which Day shall be the. same throughout the United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. [In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and,the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected :6

4. This clause has been affected by the 16th Amendment. 5. This clause has been superseded by the 12th Amendment. 6. This clause has been affected by the 25th Amendment. 115 this Constitution The Pres:dent shall, at stated Times, receive for his Services,a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected,and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the followingOath or Affirmation:"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and willto the best of my Ability, preserve, protect and defend the Constitution of the United States." SECTION 2. The President shall be Commander in Chief of the Army and Navy of the UnitedStates, and of the Militia of the several States, when called into the actual Service of the United States:he may require the Opinion, in writing, of the principal Officer in each of the executive Departments,upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardonsfor Offences against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate,to make Treaties, provided two thirds of the Senators present concur: and he shall nominate, and by and with the Adviceand Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls. Judges of thesupreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise providedfor, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers,as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies thatmay happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. SECTION 3. He shall from time to time give to the Congress Information ofthe State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient: hemay, on extraordinary Oc "asions, convene both Houses, or either of them, and in Case of Dig agreement between them,with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall thinkproper: he shall receive Ambassadors and other public Ministers: he shall take Care that the Laws be faithfully executed, and shall Commission allthe Officers of the United States. SECTION 4. The President, Vice President and all civil Officers of the United States,shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery,or other high Crimes and Misdemeanors.

ARTICLE III SECTION 1. The judicial Power of the United States, shall be vested inone supreme Court, and in such inferior Courts as the Con- gress may from time to time ordain and establish. The Judges, both of thesupreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for theirServices a Compensation, which shall not be diminished during their Continuance in Office. SECTION 2. The judicial Power shall extend to all Cases, in Law and Equity, arisingunder this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;toall Cases affecting Ambassadors, other public Ministers and Consuls;to all Cases of admiralty and maritimeJurisdiction;to Controversies to which the United States shall be a Party;to Controversies betweentwo or more States:[between a State and Citizens of another State;between Citizens of different States;between Citizensof the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreignStates, Citizens or Subjects? In all Cases affecting Ambassadors, other public Ministers and Consuls, andthose in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, thesupreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, andunder such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment,shall be by Jury: and such Trial shall be held in the State where the said Crimes shall have been committed: but whennot committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. SECTION 3. Treason against the United States, shall consist only in levying War against them,or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unlesson the Testimony cf two Witnesses to the

7. This clause has been changed by the 11th Amendment.. ; 116 this Constitution 55 same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

ARTICLE IV SECTION 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and juuicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, records and Proceedings shall be proved, and the Effect thereof.

SECTION 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. [No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.8

SECTION 3. New States may be admitted by the Congress into this Union: but no new State shall be formed or erected within the Jurisdiction of any other State: nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States: and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

SECTION 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion: and on Application of the Legislature or of the Executive (when the Legislature cannot be convened) against domestic Violence.

ARTICLE V The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress: Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article: and that no State without its Consent, shall be deprived of its equal Suffrage in the Senate.

ARTICLE VI All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the laws of the United States which shall be made in Pursuance thereof: and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land. and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution. but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

ARTICLE VII The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

8. This clause has been superseded by the 13th Amendment. 117 sa this Constitution DONE in nonvention by the Unanimous Consent of the Statespresent the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eightyseven and of the Independance of the United States of America the Twelfth IN WITNESS whereof We have hereunto subscribedour Names. G°. Washing tonPresidt. and deputy from Virginia

New Hampshire John Langdon Nicholas Gilman Massachusetts Maryland Nathaniel Gorham James McHenry Rufus King Dan of St Thos. Jenifer Connecticut Dan'. Carroll Wm: Sam!. Johnson Virginia Roger Sherman John Blair New York James Madison Jr. Alexander Hamilton North Carolina New Jersey Wn. Blow Wil: Livingston Richd. DGabs Spaight David Brearley Hu Williamson Wm. Paterson South Carolina Jona: Dayton J. Rutledge Pennsylvania Charles Cotesworth Pinckney B Franklin Charles Pinckney Thomas Muffin Pierce Butler Robt. Morris Georgia Geo. Clymer William Few TiwS. Fitz Simons Abr Baldwin Jared Ingersoll James Wilson Gouv Morris Delaware Geo: Read Gunning Bedford jun John Dickinson Richard Bassett Jaco: Broom Attest William Jackson Secretary

During the ratification contest, several states emphaticallyexpressed their desire that a bill of rights be added to the Constitution adopted by the Federal Conventionin Philadelphia September 17, 1787. Tice First Congress complied and submitted twelve amendmentsto the states, following the procedures laid out in Article V. Ten of these amendments, now referred to as the Bill of Rights,were ratified by December 15, 1791. this Constitution 118 57 ...do ordain andestablisb t is Constitution for the UnitedStates ofAmerica.

Fplwtpoisme p Fall 1987. No. 16 Upon the whole,I doubt whether theopposition to the

Constitution willnot ultimately -- be productiveofmore good than evil;it has called forth,in its defence, abilitieswhich wouldnot perhaps have been otherwise exerted,that have thrownnew light upon the science of Government;they have given therights ofman a full and fairdiscussion, and explained theminsoclear and forciblea manner as cannot failto make a lasting impression. George Washington

119 The Federalist Number 51 (Published originally in the New York Packet,Friday, February 8, 1788) James Madison

To what expedient, then, shall we finally resort, formaintaining in practice the necessary partition of power among I the several departments as laid down in the Constitution?The only answer that can be given is that asall these exte- rior provisions are found to be inadequate the defect mustbe supplied, by so contriving the interior structure ofthe other in government as that its several constituent parts may,by their mutual relations, be the means of keeping each their proper places. Without presuming to undertake afull development of this important idea I will hazard afew general observations which may perhaps place it in aclearer light, and enable us to form a more correct judgmentof the principles and structure of the government plannedby the convention. which In order to lay a due foundation for that separate anddistinct exercis of the different powers of government, to a certain extent is admitted on all hands tobe essential to the preservation of liberty, it isevident that each department should have a will of its own; and consequentlyshould be so constituted that the members of eachshould have as little agency as possible in the appointment ofthe members of the others. Were this principlerigorously adhered to, it would require that all the appointments for the supremeexecutive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, thepeople, through channels having no communication whatever with one another. Perhaps such a plan of constructingthe several departments would be less difficult in attend practice than it may in contemplation appear. Somedifficulties, however, and some additional expense would the judiciary the execution of it. Some deviations, therefore, from theprinciple must be admitted. In the constitution of department in particular, it might be inexpedient toinsist rigorously on the principle: first, becausepeculiar qualifications being essential in the members, the primaryconsideration ought to be to select that mode of choice which best secures these qualifications; second, because the permanenttenure by which the appointments are held in that department must soon destroy all sense of dependence onthe authority conferring them. It is equally evident that the members of each departmentshould be as little dependent as possible on those of the others for the emoluments annexed to their offices.Were the executive magistrate, or the judges, notindependent of the legislature in this particular, their independencein every other would be merely nominal. But the great security against a gradual concentration ofthe several powers in the same department consistsin giving to those who administer each department the necessaryconstitutional means and personal motives to resist encroachments of the others. The provision for defense mustin this, as in all other cases, be made commensurate to with the danger of attack. Ambition must be made to counteractambition. The interest of the man must be connected the constitutional rights of the place. It may be areflection on human nature that such devices should be necessaryto nature? If control the abuses of government. But what is government itselfbut the greatest of all reflections on human men were angels, no governmentwould be necessary. If angels were to govern men,neither external nor internal controls on government would be necessary. In framing agovernment which is to be administered by men over men, the great difficulty lies in this: you must first enablethe government to control the governed; and in the nextplace oblige it to control itself. A dependence on the peopleis, no doubt, the primary control on the government;but experience has taught mankind the necessity of auxiliaryprecautions. This policy of supplring, by opposite and rival interests, thedefect of better motives, might be traced through the whole system of human affairs, private as well as public.We see it particularly displayed in all thesubordinate distributions of power, where the constant aim is to divide and arrangethe several offices in such a manner as that each may be a check on the otherthat the private interest of everyindividual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in thedistribution of the supreme powers of the State. But it is not possible to give to each department an equal powerof self-defense. In republican government, the legislative authority necessarily predominates. The remedyfor this inconveniency is to divide the legislatureinto dllerent branches; and to render them, by different modesof election and different principles of action, aslittle connected with each other as the nature of their commonfunctions and their common dependence on the societywill admit. It may even be necessary to guard against dangerousencroachments by still further precautions. As theweight of the legislative authority requires that it shouldbe thus divided, the weakness of the executive mayrequire, on the natural de- other hand, that it should be fortified. An absolutenegative on the legislature appears, at first view, to be the fense with which the executive magistrate should be armed.But perhaps it would be neither altogether safe noralone sufficient. On ordinary occasions it might not be exertedwith the requisite firmness, and on extraordinaryoccasions it might be perfidiously abused. May not this defect of anabsolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the strongerdepartment, by which the latter may be led to support the constitutional rights of the former,without being too much detached from therights of its own department? continued on page 53

1°4., 0 f ...do ordain and estahlis6 thisisConstitution fortbe UnitedStates ofAmerica.

A Bicentennial Chronicle No. 16 Fall 1987 4

Special Issue on the PublicDebate over the Constitution The Federalist by Jean, Yarbrough 4

The Constitutional Thoughtof the Anti-Federalists by Murray Dry 10

The Constitutionas Myth and Symbol by Milton M. Klein 15

10Documents The Federal Constitution,Boys, and Liberty Forever: Music and the Constitution 22 by Jannelle Warren-Findley

The Federalist, Number 51 inside front cover From the Editor 2 For the Classroom: Teaching With The Federalist 32 o'eparation of Powers with Checksand Balances in The Federalist 15by John J. Patrick and ClairW. Keller Bicentennial Gazette 37 Recently Published Books Aboutthe Constitution Educational Resources Exhibits Organizations and Institutions Scholarly Conferences National Endowment for theHumanities Federal Bicentennial Apada

Cover: (from top) Richard Henry Lee,Elbridge Gerry, George Clinton and Patrick to John Armstrong, 25 April 1788, In The Henry. Quotation: George Washington 42 Writings of George Washington, edited by JohnC. Fitzpatrick, vol. 29, pp. 464-67. Courtesy of John R. ChallInor.Cover design by Charles S. Snyder.

this Constitution is publishedwith the assistance ofa grant from the National Endowment for the Humanitiesas part of its special initiative nial of the United States on the Bicenten- Constitution. Editorial officesare located at 1527 New Hampshire Avenue, N.W.,Washington, D.C., 20036. All materialin this publication may be photocopied ifattributed as follows: "Reprinted tion: A Bicentennial Chronicle, from this Constitu- Fall, 1987, published by Project'87 of the American Historical Associationand the American Political tion." Project '87 would Science Associa- appreciate notification from thosewho photocopy material in this issue foruse in presentations to other the American Historical groups. © Copyright '987 by Association and the AmericanPolitical Science Associa- tion. Printed by Byrd Press,Richmond, Va. thls CosItutlon 121 IMMIYIN

From the Editor

G'. n September 17, 1787, the FederalConvention in Philadelphia formal- this Constitution ly adopted :he Constitution. The delegates hadworked for the better part of four months, arguing vehemently,then crafting delicate compromises. Their discussions had been completely secret.Only now would the rest of the American people get a look at,and have a say about, the character of the new frame of government. published by Project '87 of the In order to persuaie their compatriots toratify the work of the Con- American Historical Association vention, three of the Constitution's supporters %MAC aseries of newspa- and the American Political Science per articles published in NewYork City from October 1787 to May 1788. Association Writing anonymously under the name Publics, theauthors, Alexander Hamilton, James Madison and John Jay, were driven bytheir sense of ur- James MacGregor Burns and gency about the need for the newConstitution. We cannot know whether Richard B. Morris, co-chairs their arguments, incorporated in The Federalist,convinced anyone, but The Federaast has endured as the best statementof what these propo- Executive Editor nents of the Constitution warad thepeople to understand about the way Sheilah Mann, Director, Project '87 the new government was expected to work. Managing Editor In the first article in this issue, JeanYarbrough lays out the chief argu- Cynthia Harrison, Deputy Director, ments of The Federalist essays.Madison's Federalist No. 51 begins on the Project '87 inside front cover. John J. Patrick and Clair W.Keller have adapted selections from The Federalist for students; oneof the lessons, addressing sep- Editorial Assistant aration of powers and checks and balances, appea'sin the "For the Class- Jean Walen room" section. The Constitution's supporters had no easytask in winning approval of Administrative Assistant ratification included powerful Sally Hoffman the new plan of government. Opponents of and influential political figures. Although the"Anti-Federalists," as they Design Director were labeled, had no comparableplan to offer in place of the Constitu- Charles S. Snyder tion, their protests voiced a concern aboutthe possibility of exces::::.2 au- Ciority exercised by a centralized government, a concernAmericans hav Photographic Research continued to share. Murray Dry explains theobjections of the Anti-Feder- Rebecca Hirsh alists in his article on their constitutionalphilosophy. Circulation Manager Despite the energetic debates 'about the Constitution, itsratification Judy Caruthers Editorial Board I,tr,,IL.L6 Milton Klein (Chair), Department of History, University of Tennessee Milton C. Cummings, Jr., Department of Political Science, Johns Hopkins University Margaret Horsnell, Department of History, Cy American International College James 0. Horton, Department of History, The George Washington University, and Afro-American Communities Project, Smithsonian Institution Frank J. Sorauf, Department of Political Science, I University of Minnesota 4 Richard H. Wilson, c A K,' IN Secondary Social Studies `tir Coordinator, Montgomery C. County (MD) Public Schools

this Constitution 2 1 22 Joint Committee

was the occasion for great celebrations in each state. MiltonM. Klein de- James MacGregor Burns, Co-Chair, scribes how quickly the Constitution becamean emblem If national unity Department of Political Science, in his article, "The Constitutionas Myth and Symbol." The public's re- Williams College sponse to the new document came out in songas well as in essays, and in Richard B. Morris, Co-Chair, The the "Documents" section- Janne lle Warren-Findley Papers of John Jay, Columbia reproduces the lyrics University of the eighteenth-century songson the Constitution, giving us a new per- Lucius J. Barker, Department of spective on the debate and the celebration. Political Science, Washington The Bicentennial Gazette in this issue offersa special listing of educa- University, St. Louis tional resources and recent bookson the Constitution. Herman Betz, Department of History, University of Maryland Walter F. Berns, Department of Government, Georgetown University Patricia Bonomi, Department of History, New York University Richard L. Bushman, Department of History, University of Delaware Beverly B. Cook, Department of Political Science, University of Wisconsin, Milwaukee Roger H. Davidson, Congressional Research Service, Library of Congress Don Fehrenbacher, Department of History, Stanford University Joel B. Grossman, Department of Political Science, University of Wisconsin, Madison Harold M. Hyman, Department of History, Rice University Linda K. Kerber, Department of unbunion History, University of Iowa Walter Murphy, Department of Politics, nr 111111;itaf:!411144111::1:11:1LinniZTairaMILIMMILTIlifill Princeton University Mary K. B. Tachau, Department of History, University of Louisville James S. Young, Department of Thirteen Enduring Political Science, University of Virginia Constitutional Issues Samuel R. Gammon, Executive Director, American Historical Association Thomas E. Mann, Executive Director, ii1111111111111111111111111111111111111111111...011... American Political Science Nao Association Advisom Board

National PowerLimits and The Rights of Women Under Warren E. Burger, Honorary Chair- Potential man; Birch Bayh; Griffin B. Bell; Mary the Constitution F. Berry; Richard Bolling; John I3rade- , Federalismthe Balance The Rights of Ethnic and mas; Joan R. Challinor; Robert L. between Nation and State Racial Groups Under the Clare, Jr.; Lawrence A. Cremin; Thom- The JudiciaryInterpreter of Constitution as E. Deacy, Jr.; Wilfred Feinberg; the Constitution or Shaper of Presidential Power in Wartime John T. Fey; Robben W. Fleming; Alan Public Policy Geyer; Ruth Bader Ginsburg; Fred P. and in Foreign Affairs Graham; Orin Hatch; A. E. Dick How- Civil Libertiesthe Balance The Separation of Powers and ard; Shirley M. Hufstedler; John Jay between Government and the the Capacity to Govern Iselin; Harry W. Jones; Amalya Lyle Individual Avenues of Representation Kearse; Edward M. Kennedy; Francis Criminal PenaltiesRights of It. Kirkham; Edward H. Levi; A. Leo Property Rights and Economic Levin; Frank J. Macchiarola; Robert the Accused and Protection of Policy McClory; Bruce K. MacLaury; Charles the Community Constitutional Change and McC. Mathias, Jr.; Paul J. Mishkin; Jo- Equalityits Definition asa Flexibility seph A. Pechntan; J. W. Peltason; Wil- Constitutional Value son Riles; Peter W. Rodino, Jr.; Paul Simon; Strom Thurmond; Laurence IL Tribe; Patricia M. Wald; Charles Alan Wright this Constitution 123 3 The Federalist by JEAN YARBROUGH

n September 17, 1787, after er possibilities had fallen through, the natural rights of man. Moreover, four months of deliberation Hamilton invited James Madison to their work is circumscribed by the and compromise, the Federal join them. Madison, a leading force knowledge that a republican gov- Convention0 concluded its business at the Convention, was now in New ernment, organized on federal prin- York as Virginia's representative to ciples, is the only form of govern- in Philadelphia and forwarded a ment Americans will accept. The copy of the proposed Constitution the Confederation Congress. Be- to Congress for further action. Ac- tween October 1787 and May 1788, purpose of The Federalist, then, is cording to the new plan of govern- the three produced eighty-five es- to persuade the people, by reason ment, nine states would have to says under the title, The Federalist. when possible and by appeals to ratify the Constitution beforeit Itis now generally agreed that passion and prejudice when neces- Hamilton wrote fifty-one papers, sary, that the Constitution estab- could go into effect. Immediately lishes a republic, and that this re- after adjournment, Alexander Ham- Madison twenty-six and Jay (owing ilton, New York delegate to the to illness) five. The remaining three public is "sufficiently federal" to Convention and one of the Consti- papers, tracing the history of past secure their rights. confederacies, are the joint collabo- But if The Federalist has a practi- tution's chief supporters, launched is by no an ambitious newspapercampaign ration of Madison and Hamilton. cal political agenda, it to secure ratification in his home Following a common eighteenth- means simply a tract for the times. Indeed, it is doubtful that The Fed- state. century practice, the authors did Both supporters and opponents not reveal their identities but eralist had much of an impact upon the ratification drive in New York. of the Constitution recognized the signed the papers under the pseud- pivotal importance of New York. onyms, "Publius." Americans of As the political scientist Clinton Not only did New York provide the that day recognized that the refer- Rossiter has written: "Promises, crucial link between the New En- ence was to Publius Valerius Pub li- threats, bargains and face to face gland states and the rest of the cola, who, according to the account debates, not eloquent words in even country, but it was the seat of gov- in Plutarch's Lives, had saved the the most widely circulated newspa- ernment under the Articles of Con- Roman Republic. The choice of pers, won hard-euned victories for federation. A negative vote in New "Publius" suggested that, like their the Constitutionin the crucial York would surely affect the out- ancient namesake, the authors of states of Massachusetts, Virginia come in other states. Yet, important The Federalist papers would save and New York." Ultimately The as New York was, it would notbe republicanism in America by recon- Federalist's claim to greatness lies an easy state to carry. BothRobert stituting it on sounder principles. in its authoritative exposition of the Lansing and Robert Yates, New Although The Federalist is the new Constitution and of the princi- York's other two delegates at Phila- most important writing in American ples underlying it. delphia, had walked out of the Con- political thought, it is, more precise- vention in protest, while Governor ly, an exercise in political rhetoric The Federalist's View of George Clinton organized the oppo- than political philosophy. Unlike Human Nature: sition at home. Unanimously elect- the great treatises of political phi- "If Men Were Angels ..." ed president of the New York Rati- losophy by, say, Aristotle or fying Convention, Clinton would 'Hobbes, Publius is not engaged in a At the bottom of The Federalist's defense of the proposed Constitu- use his considerable influencein- disinterested pursuit of the truth. side the Convention and "out of The authors of The Federalist do tion is a view of human nature doors" in an effort to defeat the not explore such questions as which may best be described as realistic. The authors of The Feder- proposed Constitution. "What are the proper ends of politi- Because time was short, Hamil- cal life?" or "What form of govern- alist rejected the popular Enlight- ton enlisted the aid of fellow New ment best promotes these ends?" enment view that man was basical- Yorker, John Jay, in preparing the Rather, they take as their starting ly good, and corrupted only from point the principles set forth in the without by faulty institutions such essays. Jay, though not a delegate Over- to the Federal Convention, was a Declarationof Independence as monarchy or mercantilism. prominent New York statesman (which are themselves derived throw theseinstitutions,itwas who had served as Secretary for from Locke, the Scottish moral phi- widely believed, and men can live losophers and others), that the pur- together in harmony with little or Foreign Affairs under the Articles Publius of Confederation. After several oth- pose of government is to protect no government. Although

this Constitution 4 124 As there is a degree ofdepravity in mankind which requiresa certain degree ofcircumspection and distrust: So thereare other qualities in human nature,which justify a portion ofesteem and confidence. Republicangovern- ment presupposes theexistence of these qualities ina higher degree than any other form. Were the pictures whichhave been drawn by the politicaljealousy of some among us, faithfullike- nesses of the human character, the inference would bethat there is not sufficient virtueamong men for self-government, and that nothing less thanthe chains of despotism can restrainthem from destroying anddevouring one another (No. 55). Yet although republicangovernment "presupposes"a certain capacity for virtue, elsewherein The Federalist Publius makesit clear that republican The first Seal of the United States,1782. Library of Congress. government cannot rely on morality forits preservation. All too often, these"better agreed that these institutionswere dente with the most motives" fail just whenthey be- flawed, the authors of The favorable ex- come most necessary. Moreover, Federal- ternal conditions (No.2), must ist* held that thecauses of human learn that man is the promotion of virtueby the na- no better in the tional government would quarrelling could not beblamed New World than in the require a simply on external conditions. Old. Publius degree of politicalinterference in The is one of the first to deny"the myth roots of discord and factionare of American private matters inconsistentwith exceptionalism." republican liberty. "sown in the nature ofman" (No. Americans, he warns, have 10). Thus, in answerto the question, no claim Instead, The Federalistseeks to "Why has government to "an exemption from theimper- ground republican been institut- fections, weaknesses, and government on ed at all?" Publius evils inci- the most reliableaspect of human replied: "Be- dent to society inevery shape" (No. cause the passions of man willnot 6). To believe otherwise nature: self-interest. By self-inter- conform to the dictates is to in- est, Publius means thatmost men, if of reason dulge in "the deceitfuldream of a and justice without restraint"(No. golden age." left alone, will naturallyseek to 15). Since no satisfy their ovtn interests arrangement of the But if men are not good, and de- social order could neither sires, rather than lookto the well ever make men does Publius regard themas simply good, government, withits ultimate evil. In one of the being of the whole. Ina society threat of coercion, would longest state- such as the always be ments on human nature in The one Publius hopes to necessary. Fed- s, ipe, this means that mostmen eralist, Publius suggeststhat human Americans, blessed by Provi- will seek a comfortablematerial nature partakes of both theadmira- ble and the base and existence. Althoughsome men will that repub- continue to pursue themore aristo- The Federalist essays will bereferred lican govenunent wouldbe inde- to by their numbers in parentheses cratic desires for gloryand power, after fensible if menwere simply degen- quotations. erate. Publius understands thatthe desire for material well-beingis the mod- this Constitution 0 t 125 s `cei A Alexander Hamilton. Library of Congress. John Jay. Library of Congress. James Madison. Library of Congress.

tween majority faction andmajority em democratic passion parexcel- Federalist No. 51 to turn the small republic argument on its head. In rule. lence. Publius does not condemn But for social pluralism to work any of these selfishimpulses, or that paper, he argues that "the larg- is not er the society, providedit lie within to maximum advantage, it even try to moderatethem. For The enough simply to extend the sphere Federalist isconfident that im- a practicable sphere,the more duly capable it will be of self-govern- of republican government; theCon- provements and discoveries in"the stitution must encourage a large new science of politics"(No. 9) will ment." For The Federalist the chief danger to republican government commercial republic. By com- enable them to channel thesede- merce, Publius does not mean unre- sires toward the public good. comes not from thedecline m civic virtue but, on the contrary, fromthe stricted laissez faire, for he regards the "the regulation of these variousand The Classical Republican all too active involvement of majority in schemes of oppression interfering (economic] interests" as Tradition and "the Extended "the principal tool of modern legis- Republic" against the minority. According to Publius, the great advantage of the lation." (No. 10). What The Federal- extended republic is that it permits ist has in mind, very loosely, is a Chief among these discoveries is system of free enterprise, inwhich "the enlargement of the orbit"of majority rule while discouraging of government policy and social mo- republican government. Opponents majority faction, or the tyranny the many over the few. The minor- res encourage thepeople to ac- of the Constitution, citingthe au- quire, possess, and most iii.portant, thority of the French politicalphi- ity Publius had in mind wasprinci- pally the propertied few, but it ap- increase their property and wealth. losopher Montesquieu, had insisted In its defense of a commercial that republican governmentcould plies with equal force to religious, size of racial and ethnic minorities. republic, The Federalist challenges not be expanded beyond the still another tenet of the republican the states. Smallness wasessential The Extended Republic creed. For the classical tradition because it preserved a senseof eschewed commerce and insisted community and made it possiblefor and "The Multiplicity of Sects that and Interests" that its citizens remain poor so citizens to discern the common nothing could distract them from good. In an extended republic,the This proposition, that a large re- their singleminded devotion tothe people would be too remote from common good. the centers of power to participate public is better able to protect liberty and hence to govern itself,rests Having substituted self-interest in public affairs, and government for virtue as the ground or"spring" would fall into the hands of private on two premises. First,by extending the size of the country,the of republican government, Publius interests. is more sanguine about the pros- Publius responds in Fenralist number of religious sects, political parties and economic interests pect of a commercial republic.As No. 9 by arguing that the states are he explains in Federalist No. 10,the far too large to meet therequire- would be so multiplied that no one group could force an unjustmajor- cure for the evils of majorityfaction ments of classical republicanism. lies in the division of societyinto Strict adherence to this principle ity to oppress others. AsPublius explains, in a large, pluralistic soci- different kinds as well as amounts would require that the states, too, of property. Rich and poor must be broken up into city-sizedrepub- ety, a coalition of themajority "could seldom take place on any view each other not simply as op- lics. Having demonstrated the inap- the posing classes, but as membersof plicability of the small republic ar- other principles but justice and general good." (No. 51). Here again, different economic interests and gument to the Anti-Federalist occupations:creditors,debtors, cause, Publius thenproceeds in we note the crucialdistinction he- this Constitution 6 126 In one of the longest statementson human nature in The Federalist, Publius suggests that humannature partakes of both the admirable and the base and that republicangovernment would be indefensible if men were simply degenerate.

farmers, merchants, manufacturers, the large republic encourages, self etc. Since only commerce can give branch of governmentand not government becomes good govern- just the lower house of the legisla- this "variety and complexity to the ment. It is for this reason that Pub- affairs of a nation" (No. 56), Publius turerepresents the people. Within lius makes representation the sine this wholly democratic framework, seeks to encourage a commercial qua non of republican government. republic. Publius hopes to secure the advan- Republican government is nothing tages of a mixed regime. As he moreand nothing lessthana "Inventions of Prudence": explains in No. 37, by creating a government in which "a scheme of single executive, independent of Representation and the representation takes place" (No. Separation of Powers the legislature, the Constitutionen- 10). courages energy and dispatch in If the extended republic makes that branch. Similarly, by reducing The second reason that a large possible a certain kind ofrepresen- the size of the Senate and extending republic is more capable of self tation, representation in turn makes its term of office, the Constitution government is that it attracts more possible the principle of separation qualified representatives. In small promotes certain other aristocrat- of powers. In a pure democracy, ic qualitiesstablity, wisdom, dig- republics, such as the states,repre- where the people exercise all politi- nityso often lacking in popular sentatives were drawn from small- cal power directly, no such division er, more homogeneous constituen- governments. In this way, the sepa- of legislative, executive and judicial ration of powers by itself approxi- cies and frequently did nothing powers is possible. Publius, citing more than mirror the "local and mates the virtues of a mixed regime Thomas Jefferson, regards thecon- while remaining true to its republi- particular" views of the majority. centration of political power in the can form. By contrast, in the extended repub- same hands as the very "definition lic, electoral districts would Still, the main purpose of the neces- of despotic government" (No. 48). separation of powers is to prevent sarily be larger, increasing the like- Publius does not claim to have one branch from encroaching upon lihood that only the most "fit discovered the separation ofpow- the powers of the others. According characters" would be elected. And ers, but the Constitution does modi- to Publius, the greatest dangerto once in office, these representatives fy the principle significantly. Prior liberty in a "representative repub- would "refine and enlarge" rather to 1787, the separation ofpowers lic" comes not from the executive, than merely "reflect" their constitu- was part of the theory of the mixed ents' views. On the political level but from the legislature. Because its regime. According to this older constitutional powersare broader, then, the advantage of the large view, which was given its fullest republic consists in "the substitu- and because it controls theraising practical embodiment in the Roman and spending of money, the legislation of representatives whoseen- Republic and later the British Con- lightened views and virtuous senti- ture stands in need of the greatest stitution, political power waspar- checks. "The provision for defense ments render them superior to local celled out to diff-rent hereditary must ... be made commensurate to prejudices and schemes of injus- classes in society. For example, in tice" (No. 10). Nevertheless, Pub- the danger of attack" (No. 51).Ac- England, the monarch exercisedex- cordingly, the Constitution divides lius does not believe the largere- ecutive power while the aristocracy public guarantees the election of legislative power between thetwo and democracy shared legislative houses of Congress, each elected "enlightened statesmen." He recog- powers. By distributing political nizes full well that such leaders independently of the other andre- powers among these hereditary sponsible to different (though dem- "will not always be at the helm." classes, the theorists of the mixed Thus an additional advantage of the ocratic) constituencies. Asa further regime hoped to secure the benefits precaution, the Constitution equips large electoral district is thateven if of monarchy, aristocracy and de- less qualified men are chosen, the the executive with one-sixth of the mocracy while avoiding their de- legislative power through the veto. sheer diversity of interests and fects. Finally, the Constitutionencour- opinions which they represent,as What makes the American Con- well as the necessity to ages an independent judiciary to compro- stitution unique is that it severs the insure the impartial administration mise in order to obtain a legislative separation of powers from the sep- majority, will compel them to of the laws. By giving to each en- aration of classes or orders. Instead branch "the necessary constitution- large their views. So, by virtue of the Constitution establishesa demal means, and personal motives the "refined" representation which to ocratic republicin which every resist the encroachments of the this Constitution 127 7 l{VtiCA'1 1141 CJ. In Norfolk, OR. 91 17137 (6w.) 0. Ut In the PRESS, and fpeedily will be publifhed, T I-1 E FEDERALIS7, others" (No. 51), the Constitutio;s puts teeth into the principle of sep- A Collekr,tion of Eflays writtcn in fa. aration of powers. Here again Pub- lius reiterates his view that the Con- vor of the New Conflitution. stitution cannot rely primarily upon the "better motives" of moral and of 'By a Citizen of New-lark. patriotic leaders to maintain the Jl eorrctlat by the Author, with Additions proper separation of powers, but must appeal instead to each individ- arid AlteratAons.' ual's self interest. In perhaps the ig This (work twill be printed cn a fine Paper most famous passage of The Feder- and good 13,pe, in one handfinse Velum( duo- alist, Publius connects the separation of powers with his realistic ilecimo, and delivered to frbfrribers at the view of man: moderate trice of Dne dollar.A few copies Ambition must be made to coun- quill be ruled On freprfine royal (writingta- teract ambition. The interest of the man must be connected with ter,price ten Pilling:. the constitutional rights of the al No money required till deli vet place. It may be a reflection on To render this (work more complete, human nature that such devices to should be necessary to control added, (without any additional alma, the abuses of government. But what is government itself but the greatest of all reflections on hu- PHILO-PUBLIUS) man nature? If men were angels, no government would be neces- -A N D TR E sary. If angels were to govern 1 (4.., . men, neither external nor inter- ArticlesI of Me onvention, nal controls on government would be necessary (No. 51). it- As agreed upon at Philadelphia,&plan. bey 1 qtly 1787. The Compound Republic: "Partly Federal, Partly id 6-4tA As vet y few more copies twill be pub, National" lifted than firbicribed fur, thrfe twho are deft- The Constitution not only divides reus qt. poliffug the Federaiitt through all its power horizontally among the three in numbers,twill be as expeditious as poffibk in different branches of government, it ns tcurfinittin atir names to ohn Lean, also divides power vertically be- is printer,Norfolk, and to A. Davis, (winter, tween the federal government and rls the states. This vertical distribu- Richmond, the qvork being already far in pro tionor federalismin which '11 grefir,and may be e.vpeaed out in a very power is constitutionally distribut- 1Y jinni time. ed between two levels of govern- t. ment, each of which is supreme in Norfolk, January 16, 17M its own sphere, is the most novel of the Framers' inventions. Prior to 1787, federalism was synonymous with confederalism. Federalism in P Allerr e11m01/71^fir this more traditional sense referred to a league of small republics, unit- Advertisement for The Federalist in book form, published in The Virginia Independent Chronicle, 13 February ed for limited security purposes. 1788. Library of Congress. 128 this Constitution Though written in haste, underthe pressure of editorial deadlines, The Federalist was from theoutset regarded as the most authoritative explication of the princples underlyingthe Constitution.

The states retained full sovereignty and not the states. On theother between state and federal jurisdic- over their internal affairs and were hand, the Senate, especially represented equally in the federal as orig- tion has been morea political than inally conceived, is the most "feder- a constitutional issue. Nevertheless, alliance. Confederalismwas a vital al" branch, since it component of the small republic represents each modern federalismpreserves, how- state equally regardless of itssize ever loosely, the division of tradition, according to which only or population. Because the presi- power the state governments couldpre- necessary for republican liberty. In dent is chosen by the ElectoralCol- this way, it accords with the serve republican liberty. lege, rather than by direct popular central But in 1787, a new generationof theme of The Federalist, thatliber- vote, Publius regards thesource of ty is best preserved not by limiting Americans, having witnessed first- executive powers as essentially fed- hand the defects of statesovereign- political power, but by properlydis- eral. Indeed, it is worth notingthat, tributing it. ty under the Articles of Confedera- even today, there is no federal of- tionbecame convinceda fice which is elected bya simple Conclusion modification of the traditional fed- majority of the peopleas a whole. eral principle wasnecessary if lib- Turning next to the operation erty was to be secure. Accordingly, of Although the immediate aimof the new government, Publiuscon- the new federal principleinvented The Federalist was tosecure the cedes it is unambiguously national. ratification of the Constitution at the Constitutional Convention The federal government will have in forms a mean between confedera- New York, it remains unclearhow the power to legislate directlyover tion based on state sovereigntyand successful the paperswere in individuals.Publius regardsthis achieving this goal. On June a consolidated central government provision as essential, for the 21, based on national sovereignty. gov- 1788, while the New YorkRatifying The ernment would not be agovern- Constitution, Publius concedes,is Convention was just beginningits ment if it lacked the power to legis- deliberations, New Hampshire be- "partly federal, partly national" late and enforce its decisions. (No. 39). came the ninth state to ratify the The amending power Publius Constitution. Shortly thereafter, But is it "sufficiently federal"to considers partly federal and preserve the republican liberty? In partly Virginia voted to join theUnion, national. Although the states have and on July 26, 1788, with Federalist No. 39, Publiusexamines the power to alter the Constitution, the new the new government fromfive dif- Constitution already a certainty, the amendment process doesnot, New York followed suit. ferent perspectivesitsfounda- as traditional federal theory would tion, sources ofpower, operation But the enduring claim ofThe have it, require the unanimouscon- Federalist does not rest primarily and' extent ofpowers, and the sent of the states By contrast with amendment processto on its role in securing ratification. convince the ratification process, thesover- his critics that itis "sufficiently Though written in haste, underthe eignty of the dissentingstates is pressure of editorial deadlines, The federal." His discussion makesit here breached. clear the extent to which Federalist was from the outsetre- federal- Finally, "perhaps mostimpor- ismin its contemporarymean- garded as the mostauthoritative tantly, federalism providessome explication of the principles under- ingsuffuses the political order. check" upon the extent of Starting with the amendment national lying the Constitution. Andtwo powers. Since the federalgovern- hundred years later, there process, Publius argues that the ment is "an incomplete" national is no foundation of government is reason to revise this view. a fed- government, the states areneces- eral act since the Constitutionrests sary to perform those tasks which it on the unanimous consent of the is inconvenient or undesirable Suggested additional reading: people in the states. No for state can be the federal governmentto perform. David F. Epstein, The Political 77teoryof compelled to join theUnion with- The federal principle holds that "The Federalist" (1986). out its consent. the Clinton Rossiter, ed. Federalist Papers absorption of these powers bythe (1986). Considering next thesources federal government would from which the ordinary danger- branches ously concentratc politicalpower. of governmentare derived, Publius Jean Yarbrough is associate professor It is true that the Constitution of political science at LoyolaUniversity concludes that theyare mixed. The does not explicitly of Chicago and director of the House of Representatives enumerate honors is nation- which powers are reservedto the program. She is now at work on a manual because it representsthe people script entitled "Moral Foundationsof states. For this reason, the division the American Republic." this Constitution .129 9 The ConstitutionalThought of the Anti- Federalists by MURRAY DRY

Yates, respectively. Although au- such a vote, it depended on state Although they claimed to be the requisitions, which meant that the true federalists and the true thorship remains uncertain, these writers covered all major constitu- federal government depended on republicans, the men who op- the good will of the states to exe- posed the Constitution's unconditional questions in a manner that required, and received, the atten- cute the law. tional ratification in1787-1788 In stark contrast, the Constitu- were called Anti-Federalists.The tion of "Publius," the penname adopted by Alexander Hamilton, tion proposed by the FederalCon- leading opponents from the major vention in 1787 provided the basis states included PatrickHenry, James Madison, and John Jay, authors of the famous Federalist pa- for a strong national government. George Mason, and Richard Henry Elections to the House of Represen- Lee from Virginia, George Clinton, pers. This essay will discuss Anti-Fed- tatives were by the people directly, Robert Yates, and Melanchton not the states, and the federal pow- Smith from New York, John Win- eral constitutionalism in three of ers over taxes and theraising of throp and Elbridge Gerry from Mas- parts: federalism; the separation powers; and the bill ofrights. armies were completely indepen- sachusetts and Robert Whitchill, dent of the state governments. This William Findley, and John Smilie new form of federalismnecessarily from Pennsylvania. They all agreed Republican Government and Federalism produced a new form of republican- that the document produced by the ism, the "large republic." Further- Convention in Philadelphia was un- more, Publius did not shrinkfrom acceptable without some amend- The Anti-Federalists claimed to they providing a positive argument in ments. Since most stateconstitu- be the true federalists because justi- were the true republicans.Conse- support of it." Federalist 10 tions contained bills of rights, the fied the new form of republicanism, need for a similar feature for the quently, we begin with their account of republican government not only as the price of unionbut as national constitution formed the the republican remedy to the dis- Anti-Federalists' most effective ar- and its relation to federalism. The Anti-Federalists believed ease of majority faction, ormajority gument against unconditional ratifi- tyranny. cation. The national Bill of Rightsis that to maintain the spirit of republican government, which was the Because the Federalists saw a the result of that dialogue. major danger not from the aggran- Nevertheless, the Anti-Federal- best defense against tyranny, individuals needed to know one anoth- dizing of the ruling few, but from ists' major contribution tothe they er, be familiar withtheir govern- the tyranny of the majority, American founding lay more in sought to restrain the influence of their critical examination of the ments, and have somedirect experience in government.Only that majority in order to secure new form of federalismand the new individual rights and the permanent form of republican government then would the citizenry possess a genuine love of country, whichis and aggregate interests of the com- than in their successful campaign be the essence of republican, orcivic, munity. Such restraint was to for a bill of rights. The Anti-Federal- achieved through a large extended virtue. ists sought substantial restrictions sphere, i.e. the constituencies of the on federal power, which theamend- The Anti-Federaliks espoused the then traditional view ofrepubli- federal government. These would ments subsequently adopteddid be larger and more diverse thanthe not provide. Suspicious of a strong can government, reflectedin the first state constitutions, which em- constituencies of the states, and so national government, these oppo- would make majority tyranny more nents nevertheless failed to agree phasized the legislative branch of federal difficult,since more negotiation on an alternativeconstitutional ar- government. With the first constitution, the Articles of Confed- and compromise would beneeded rangement. Still, the legacy of the for any single faction tobecome Anti-Federalists persists in our con- eration, the states, through their legislatures, retained effective con- part of a majority. In addition,the stitutional debates over federalism increased competition foroffice and republican government. trol of federal men and federal measures. The delegates toCongress would produce better representa- Anti-Federalconstitutionalism tives and a more effectiveadminis- finds its most thoughtful and com- were chosen by the statelegisla- tures and were subject tobeing tration throughout the government. prehensive expression in the Let- Perhaps because he took republi- ters of the Federal Farmer andthe recalled. The federal power to raise granted, as a taxes and armies not onlyrequired can government for Essays of Brutus, attributedto given in America, Publius under- Richard Henry Lee and Robert a vote of nine states,but, even after this Constitution J.1 10 1 3 0 cc" 74 !legit 4. 4-411 not cot Pv4tts fee CW4b ohc thart 6830u/iv d.ou ° ewerlonma At louttbr ...0 fn- JtOCerati 0 4 4> dxrbiat

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A Peep Into the Antifederal Club, a1793 cartoon ridiculing the Anti-Federalists. The Library Companyof Philadelphia.

stood it to require only that offices class." This latter phrase referredto They understood such a form of of government be filled directlyor the large number of farmersof indirectly by popular vote. Further- government to have a limited pur- modest means. A substantialrepre- pose, primarily common defense. more, the representation of the peo- sentation of this agricultural middle ple was satisfied by the fact of Hence, those who became Anti- class was possible even in thelarge Federalists originally favored limit- election, regardless of the contrast states and necessary for the charac- between the wealth and influence ed amendment?, to the Articles of ter of the governors to reflect the Confederation, rather thanan en- of the elected and the electorate. governed. Under the proposed To the-Anti-Federalists, the con- tirely new constitution. Whena new peo- stitution, argued the Anti-Federal- constitution became inevitable, ple would not be free for long if all ists,this kind of representation they could do was vote for they hoped to limit the transfer of a repre- would be impossible at the federal political power irom the states sentative whom they would not level, where the districts to know and who would be would the national government. They very dif- contain at least 30,000 people. claimed to be the true republicans ferent from them. Likewise, by participating in local Because the Anti-Federalists and the true federalists because em- jury trials, in civil as wellas crimi- they understood republican phasized participation in govern- govern- nal cases, the people in theirstates ment to require a closely knitpeo- ment, they argued that a small terri- acquired a knowledge of the laws ple attached to their government. tory and a basically homogeneous and the operation ofgovernment, population were necessary for They sought to grant onlyso much a and thereby, argued the Anti-Feder- power to the federal government as notion of the "public good" to be alists, they become more responsi- agreed upon. The Anti-Federalists was absolutely necessary to pro- ble citizens. It was feared thatthis vide for defense. In this did not insist that every citizenex- way, the responsibility would be lost when distribution of governmentalpow- ercise legislative power. But they cases were appealed to thepro- did emphasize representation of the er, as between the nation and the posed national supremecourt, states, would correspond to the dis- people in the legislatures andon which had jurisdictionon appeal juries. By "representation" they tributionof representation. And over all questions of law and fact. while the Anti-Federalists did meant that the number of people in Since the Anti-Federalists be- argue a legislative district must be small for an increase in the federalrepre- lieved that republicangovernment sentation, that by itself would not enough and the number of districts was possible in the states but not in large enough so that the citizens have satisfied the requirementof one single government for theen- republican government, as theysaw will know the people they are vot- tire country, only a confederacy, ing for and be able to elect it, since the people would always be one of that is, a federal republic,could more substantially represented in their ownone of the "middling safeguard the nation's freedom. their state governments. According this Constitution 11 `i 4.,I 131 to the Anti-Federalists, the Federal- proach to the separation of powers, ists were not federalists but conso- which will be followed by accounts lidationists; and the ultimate effect of their views on the senate, the of the Constitution would be to presidency, and the judiciary. reduce the states to mere adminis- The Anti-Federalists attacked the trative units, thereby eliminating re- Constitution's separation of powers publican liberty. from two different perspectives. Some, such as Centinel (a Pennsyl- Patrick Henry. Collection of the Architect of tte vania Anti-Federalist), alleged that Federalism and the Constitu- Capitol. Library of Congress. tion: The Legislative Powers there was too much mixing and not enough separation; others, like Pat- Already fearful of the Constitu- eration. rick Henry and the Maryland Farm- tion's threat to republican liberty, Brutus warned, as well, that the er, asserted that there were no gen- the Anti-Federalists vehemently ob- power "to raise and support armies uine "checks" at all. The first jected to the large number of spe- at pleasure ... tend[si not only to a position opposed the special cific powers granted to Congress, consolidation of the government, ers given to the senate and the especially the taxing power and the but the destruction of liberty." The executive. The second argued that a power to raise armies. They found Anti-Federalists generally took the true separation of powers depend- the undefined grants of power in position that there should be no ed upon social divisions not avail- the "necessary and proper" and the standing armies in time of peace. able in the United States, such as an "supremacy" clauses(1,8,18 and Brutus proposed a limited power to hereditary nobility as distinct from VI,2) alarming as well. The govern- raise armies to defend frontier the common people. The English ment, Brutus claimed, "so far as it posts and guard arsenals to re-Constitution drew on such divi- extends, is a complete one, and not spond to threats of attack or invasions; social class checked social a confederation," and "all that is sion. Otherwise, he maintained, class in a bicameral legislature, and reserved to the states must very standing armies should only be each was checked, in turn, by an soon be annihilated, except so far raised on the vote of two-thirds of hereditary monarch. While the Fed- as they are barely necessary to the both houses. eralists celebrated the filling of all organization of the general govern- Publius' rejection of this position offices by election directly or indi- ment." With the power to tax virtu- was complete and uncompromis- rectly, some Anti-Federalists, inally unchecked, Brutus lamented ing. The "radical vice" of the Con- cluding Patrick Henry, argued that that "the idea of confederation is federation had been precisely the such elections would result in the totally lost, and that of one entire dependence of the federal power domination of the natural, or elect- republic is embraced." The Anti- on the states. The universal axiom ed, aristocracy in all branches of Federalists attempted to draw a that the means must be proportion- government, not a true "checks and line between federal and state pow- al to the end required that the na- balances" system. ers, conceding .4-3 the federal gov- tional government's powers be ade- ernment only those powers which quate to the preservation of the The Senate were necessary for security and de- union. (Federalist 15,2') fense. Their most common tax pro- The Anti-Federalists feared that posal would have limited the feder- The Separation of Powers and ai, aristocracy would emerge from al government to a tax on foreign Republican Government the senate, taking more than its imports, leaving internal taxes, both share of power. A small number of on individuals and on commodities, The separation of powers refers individuals, elected by the state leg- to the states. This limitation would primarily to the division of power islatures for six years, and eligible guarantee the states a source of among the legislative, executive, and for reelection, shared in the ap- revenue out of reach of the nationaljudicial branches of government, pointment and treaty-making pow- government. If this federal tax but it also include:, bicameralism, ers with the executive, as well as in source proved insufficient, the Anti- or the division of the legislature the law-making process with the Federalists proposed turning to the into a house of representatives and house of representatives. In order states for requisitions, as was the a senate. In this part, we begin with to prevent senators from becoming case under the Articles of Confed- the Anti-Federalists' generalap- an entrenched aristocracy, the Anti-

this Constitution 12

A 1.32 Federalists favored an amendment judges, who were appointed for life, requiring rotation in office andper- mitting recall votes by the state should leave it to Congress to inter- legislatures. They also favoreda pret the constitutional reach of its powers. That way, if Congress mis- separately elected executivecoun- cil, which would have relieved the interpreted the Constitution by senate of its share in the appoint- overextending its powers, thepeople could repair the damages at the ment power. None of thesepropos- als was adopted. Richard Henry Lee. Independence National next election. Brutus approved of Historical Park. the framers' decision, following the The Executive English Constitution, to make the judges independent by providing George Washington would become them with a lifetime appointment, Anti-Federal opposition to the of- the first president, the Anti-Federal- subject to impeachment, and fixed fice of president was surprisingly ists let their objections go. limited. While Patrick Henry assert- salaries. But he pointed out that the English judges were nonetheless ed that the constitution "squintsThe Judiciary toward monarchy," most of the subject to revision by the House of Anti-Federalists accepted the uni- Lords, on appeal, and to revision, in While many Anti-Federalists their interpretation of the constitu- tary office and the "electoral col- failed to discuss it, Brutus' account lege" mode of election. tion, by Parliament. Extending the of the judicial power anticipated judicial power to the American The eligibility of the presidentto the full development of judicialre- Constitution meant that there run repeatedly for office, however, view as well as the importanceof did provoke substantial opposition, would be no appeal beyond the the judicial branch as a vehicle for independent non-elected judiciary. as did the absence of a special the development of the federalgov- executive council, which would Brutus did not think that impeach- ernment's powers, both of which he ment for high crimes and misde- have shared the appointmentpow- opposed. By extending the judicial er. Whereas Publius had argued meanors would become an effec- power "to all cases, in law and tive check, and while he didnot that re-eligibility providesa con- equity, arising under this Constitu- mention it, he doubtless would structive use for ambition, Federal tion," Article HI permitted the have regarded the amendment Farmer replied that jnce electeda courts "to give the constitution man will spend all his time and a process also as unsatisfactory. legal construction." Moreover,ex- Anti-Federalists including Brutus exercise all his influence to stay in tending the judicial power to equity office. The executive council would objected as well to the extensive as well as law (a division made appellate jurisdiction of thesu- have weakened thepower of the originally in English law)gave the Senate, which concerned the Anti- preme court. Article HI section 2 courts power "to explain the consti- may have guaranteed a jury trial in Federalists even more than the tution according to the reasoning president's power. criminal cases, but on appeal, the spirit of it, without being confined fate of the defendant would beup No Anti-Federalist expressed to the words or letter." Hence, Bru- concern about the general phrase to the judges. The Anti-Federalists tus concluded that "the real effect wanted to have the right of jury "the executive power," perhapsbe- of this system will therefore be trials extended to civilcases and to cause it was unclear whether this brought home to the feelings ofthe was a grant of power or merely the have the results protected against people through the medium of the appellate reconsideration. name of the office. Some ques- judicial power." tionedthe"commander-in-chief' Finally, Brutus objected to the Under the judicial power, the "Madisonian compromise," which clause, the pardoning power, and courts would be able to expand the authority to call either of both authorized, but did not require, powers of the legislature and inter- Congress to "ordain and establish" houses into special session. But in pret laws in a way Congress did not light of the difficulties of governing lower courts. Except for the limited intend. Brutus interpreted the grant grant of original jurisdiction in the without an independent executive, of judicial power to allcases arising which the country experienced supreme court, judicial power, the un- under the Constitutionas a grant of Anti-Federalists argued, should der the Articles of Confederation, "judicial review." He opposed this and the common expectation that have been left to originate in the grant, because he thought the state courts. this Constitution 133 13 The Anti-Federalists are best known for the Bill ofRights, since the Constitution would not have been ratified without the promise toadd it. But the Bill of Rights was as much a Federalist as anAnti-Federalist achievement.

The Bill of Rights understanding of republican gov- stitution. ernment. Such a form of govern- Any strict construction of federal The Anti-Federalists are best ment was mild in its operation and power has much in common with known for the Bill of Rights, since a public proclamation of their Anti - Federalist constitutionalism. the Constitution would not have rights kept the people aware of During the founding debate, oppo- been ratified without the promise them. Consequently, the Bill of nents of a strong national govern- to add it. But the Bill of Rights was Rights, even in. its Federalist form, ment wanted to amend the Consti- as much a Federalist as an Anti- reflects Anti-Federal constitutional- tution;afterratification, Anti- Federalist achievement. The Anti- ism. But the amendments did not Federalists had no choice but to Federalists wanted a bill of rights to restrict the major federal powers, interpret the Constitution to require curb the power of the national gov- over taxes, commerce, and war, or limited federal government. The ernment to intrude upon state pow- in any way limit implied powers. contemporary controversies over er; the Bill of Rights, as adopted, did Furthermore, as Jefferson noted, in abortion, pornography, and sexual not address this question. Instead, it a letter he wrote to Madison in practices among consenting adults, limited the right of government to 1789, by emphasizing individual and the issues surrounding the reli- interfere with individuals, and, as rights, the Bill of Rights put a legal gion clauses of the First Amend- such, included provisions similar to check in the hands of the judiciary. ment reveal disagreements over the those in the bills of rights in many In other words, before he opposed scope of individual rights, on the of the state constitutions. the power of judicial review, Jeffer- one hand, and the legitimacy of When the Federalists denied the son seemed to take its existence for government maintenance of com- necessity of a federal bill of rights, granted. He argued that writing a munity manners and morals on the on the grounds that whatever pow- bill of rights into the Constitution other. These controversies resem- er was not enumerated could notbe would provide judicial protection ble the founding debate over repub- claimed, the Anti-Federalists point- of those rights. Neither Jefferson licanism, where the Federalists fo- ed to the Constitution's supremacy nor the Anti-Federalists seemed to cused on the security of individual and to the extensiveness of the realize how a federal bill of rights, rights and the Anti-Federalists ex- enumerated powers to argue that by strengthening the federal courts, pressed a greater concern for the there were no effective limitations would thus serve to strengthen Fed- character of republican citizenship, on federal authority with respect to eralist constitutionalism. maintained in part through religion. the states. None of the actual Through such debates, Anti-Federal amendments, which were writtenConclusion constitutionalism, as applied to up and guided through theHouse governmental structure and to mor- by Madison, followed the Anti-Fed- The Anti-Federalists lost the rati- al qualities necessary for free gov- eral proposals to restrict federal fication debate because they failed ernment, thus remains an important powers, especially the tax and war to present a clear and convincing part of our constitutional polity. powers. As for what became the account of a constitutional plan tenth amendment, Madison himself that stood between the Articles of said that it simply clarified the ex- Confederation, which they ac- Suggested adiitional reading; isting enumeration of powers but knowledged was unable to provide I lerhert J. Storing, 117rat the Anti Federalists changed nothing. Furthermore, for the requirements of union, and were For (1981). the Constitution proposed by the Herbert J. Storing (with Murray My), The when an Anti-Federalist tried to get AntiFedemlist (1985). the adverb "expressly" inserted be- Federal Convention, which they Murray Dry, "The Case Against Ratification. fore "delegated" in the amend- feared would produce a consolida- AntiFederalist Constitutional Thought," ment"The powers not delegated tion of power. And yet the periodic in Dennis Mahoney, ed. Essays on the and contemporary constitutional Ratification of the Constitution (1987). to the United States by the Consti- Gordon Wood, The Creation of the Ameri. tution, nor prohibited by it to the debates over federalism, over the can Ilepanc, 1776-1787 (1969). States, are reserved to the States extent of legislative and executive respectively, or to:the people"his power, and over individual rights motion failed by a substantial mar- and judicial review reflect the dif- Murray Dry is professor of political sci- gin. ferent conceptions of republican ence at Middlebury College. lie is now The Anti-Federalists' demand for government that were developed in working on a study of the constitutional a bill of rights derived fromtheir the founding dialogue over the Con- evolution of American federalism.

this Constitution 14 1 3 4 The Constitutionas Myth and Symbol by MILTON M. KLEIN

The United States Constitution is others. All political systems require far as to insist that for most ofus, and always has been a political a sense of personal identification "politics is... a passing pare',; of symbol as well as a political between the individual citizen and abstract symbols," and Max Lerner document. Like the American flag the political system and a sense of suggests that unless a government and the national anthem, the Con- identification among individuals is naive enough to rely solelyon stitution expresses ideas of patrio- within the system. In the United rational appeals or brutal enough to tism, nationalism, and freedom. Un- States, the creation of such a sense resort to coercion, it will employ like the flag and the anthem, the of national identity was inhibited by symbols to enlist group loyalty. Constitution also connotes the rule the absence of a long history of Symbols are vehicles for myth- of law and the superiority of higher nationhood or the existence of making, and the myth of the Consti- iaw over legislative and executive bonds like a monarchy, an aristoc- tution early augmented that docu- actions. It thus confers a stamp of racy, an established religion, or a ment'ssymbolicimportance. legitimacy upon public and private common intellectual culture. While Anthropologists define myths as behavior that has few counterparts there is evidence of an emergent tales and traditions which people in other countries. sense of American nationhood even develop to create and reinforce so- As a symbol, the Constitution's before the Revolution, the prevail- cial order. Like symbols, mythspro- appeal has been broad and multi- ing sentiment of Americans was vide societies with coherence and faceted. Historians like John Fiske probably more like that of the New direction, putting new experiences celebrated the document as "(''' Englander who during the Revolu- intofamiliar contexts. Myths wonderful work,this ['dad, or R. .Con declared that his affections strengthen tradition and endow it thenon, or Fifth Symphony, of flowed in what he called their "nat- with greater value and prestige by statesmanship." European states- ural order": "toward Salem,Mas- tracing it back to a higher and bet- men like William Gladstone cele- sachusetts,New England,the ter source. With symbols, they give brated it as "the most wonderful Union at large." a political order a sense of purpose. work ever struck off at a given time While the Constitution did not in Political myths and politicalsym- by the brain and purpose of man"; itself create an American national- bols are mutually supporting and and American statesmen like An- ism, it provided an extraordinarily reinforcing. drew Johnson paid titer homage to influential symbol of national iden- the document in his wish: "When I tity; and symbols are powerful in- "Cult of the Constitution" die, I desire no better winding sheet gredients in the creation of a politi- than the Stars and Stripes, and no cal culture. Symbols supply an The events surrounding the birth softer pillow than the Constitution overarching sense of unity in soci- of the American republic were not of my country." eties that might otherwise be rid- particularly conducive to the cre- There is no necessary correlation dled with conflict. They evoke, as ation of national symbols, but the between the symbolic and the sub- illusion or reality, the implicit prin- new nation shortly created three stantive meaning which the Ameri- ciples by which a society lives; they icons: George Washington, the can public attaches to its objects of are visible signs of an often invisi- Stars and Stripes, and the Declara- civil worship. Thus, while the na- ble belief; they simplify andemo- tion of Independence. None of tion paid near-universal tribute on tionalize loyalties; and they require these provided underpinnings for a July 4,1986, to the Statue of Liberty no formal proof. What they stand particular political order, since the as the symbolic representation of for may be only partly true, or not government of the United States for the "Golden Door" and of America true at all, but for those who accept the first decade of its existence as a land of freedom and opportuni- them, symbols are as real and ob- rested on the tenuous foundation, ty for newcomers to our shores, a jectively verifiable as the Rock of first, of an informal agreement by CBS-New York Times poll, at the Gibraltar. In politics, symbols serve which the Continental Congress same time, disclosed that a plurality to link the individual to the larger served as a limited national govern- of those questioned believed we political order, to synchronize the ment and, then, of the short-lived should be more restrictive in our diverse motivations of different in- Articles of Confederation. The Con- immigration policies. dividuals, and to make possible col- stitution provided a more solid Symbols do, however, play an lective action. They become the foundation, and its framers early important role in American political "currency" of political communica- began to surround it with themy- culture, perhaps more so than in tion. One political scientist goes so thology it required as the symbol of this Constitution i 135 15 nies insisted that the fundamental law governing their relations with the mother country was fixed and immutable, invulnerable to Parlia- mentary legislation and the acts of British sovereigns or their viceroys in the colonies. There were basic legal rights, several New York lawyers argued as early as 1754, that were "interwoven with and part of the Political Frame and Constitu- tion of the Provinc!' and that could not be arbitraril:, abridged or abro- gated. They repeated the claim ten years later, when they charged the province's lieutenant governor with responsibility for tampering with the traditional right to trial by jury: Is a constitution matured by ages, founded as it were on a rock, repeatedly defended against lawless encroachments by oceans of blood, meliorated by the experiences of centuries, alike salutary to princes and people, and guarded by the most awful sanctions: is such a constitution ... now to be altered or abolished, bythe dash of a pen? By the eve of the Revolution, the idea was widespread in the colo- "Liberty," a primitive painting adapted from Edward Savage, liberty In the form of the Goddess of Youth. giving support to the Bald Eagle, 1796. G8tifiset Collection, National Gallery of Art. Washington. D.C. nies that constitutions were not t,lerely descriptions of how governments operated but rather funda- the new political order. supernatural event. The Constitu- mental charters, anterior to statu- The creation of a "cult of the tion itself was compared to Scrip- tory law and the source from which Constitution" began with the Feder- ture, and the Supreme Court, in both legislatures and executives alists who wrote the document And time, became the temple that inc.: drew their authority. Further, con- fought for its ratification. The philo- ,.es the sacred document stitutions were held to possess a sophival basis for the myth was There is also a secular founda- special role in the preservation of both religious and secular. Jeffer- tion for the cult of the Constitution. liberty, since they guaranteed from son described the Framers as The colonists, in their contest with governmental interference those "demi-gods" and the document it- Britain, steadily insisted that Parlia- rights which individuals possessed self as the "ark of our safety." The mentary actions violated a "consti- in nature. Conservative patriots, in words "ark" and "covenant" were tution" which governed relations the end, could justify an act of invoked frequently by those who, ,n between colonies and mother coun- revolution precisely because, they speech and writii,g, worked to entry and which implicitly reserved a insisted, they were the true conser- list emotional suppoet fir he coun- sphere of internal autonomy for vators of both the British and the try's new fundamental charter. The them within the broader imperial colonial corstitutions; the British Olympian gathering of virtuous context. Resorting to their own pro- were the innovators and the real men performing a "miracle" at Phil- vincial manifestations of this impe- revolutionaries! adelphia could only be likened to a rialconstitution, individual colo- For those Americans who accept- r -- 16 this Constitution 3 G Conservative patriots, in the end, couldjustify an act of revolution precisely because, they insisted, theywere the true conservators qf both the British' and the colonial constitutions;the British were the innovators and the real revolutionaries!

ed the Lockean theory of the origin matic symbol of unity given the cession." It began in the morning of government, there was stillan- limited number of persons wl'o and did not end until 5:30p.m. other ground for their respect for were involved in its making ai,d Almost one quarter of the city's constitutions. A constitutionrepre- ratification and the violent debate sented the cis it contract by which population were in the mile-and-a- over its acceptance. Anti-Federal- half parade. Every trade and profes- societies had been formed. The idea ists, of course, denounced itas an sion was represented among the of the inviolability of compactswas instrument of centralization,au- one of the most persistent argu- marchers, and each carried distinc- thoritarianism, aristocracy, and tive banners or mounted special ments employed by colonials in even godlessness, and epigramma- displays: a federal loaf by the their legal confrontation with Par- tized it as a "thirteen-hornedmon- liament before the Revolution. bakers, a 300-gallon ale cask by the ster," a "spurious brat," anda "het- brewers; and a federal ship by the Their relationship with Britain, they erogeneous phantom." Federalists, pilots and mariners. The themewas contended, was founded onan orig- on the other hand, employed the unity and prosperity, and banners inal compact between the firstset- rhetoric of national unity almost tlers and the Crown. The compact carried the words in undistin- from the start to counter the divi- guished but unmistakeableverse. prescribed mutual obligations and siveness aroused by the Constitu- From the pewterers: responsibilities: the settlers agreed tion's critics. In The Federalistpa- The Federalist plan most solid to establish colonies in a wild conti- pers, its authors expressed the nent for England's political and and secure hope that the Constitution would Americans their freedom will economic benefit; the Crown, in draw upon itself "that veneration endure turn, undertook to nurture andpro- which time bestows on everything, All arts will flourish in Colum- tect the colonies and to guarantee and without which perhaps thewis- bia's land the settlers the same personal liber- est and freest of governments" And all her sons join asone ties they had possessed while in would lack stability; but supporters England. Independence social band. was, then, of the new charter of government From the butchers: justified, as a recognition that the were not content to allow time to Skin me well, dress me neat, Crown had broken the compact, do its work unaided. A rhetoric and leaving the colonists legally free And send me aboard the federal to a ritual of national unity were creat- fleet. pursue their own destiny as sover- ed to supply what ordinarycircum- From the chairmakers: eign states. stances might not. Constitutions and compacts The fed'ral states i2 union were While Anti-Federalists in 1788 in- bound, the high ground Gn which the colo- sisted that the nation wantedno O'er all the world our chairsare nists sought to justify their rebel- new constitution, the popular mood found. lion "out: of a decent respectto the was better reflected in the senti- opinions" of an incredulous eigh- And from the joiners: ments of James Sullivan, a Massa- The federal ship will ourcom- teenth-century world, and thesuc- chusetts Anti-Federalist turned merce revive, cess of that rebellion gave constitu- Federalist: he surmised that people tions a hallowed place in And merchants and shipwrights the expected so much from the Phila- and joiners shall thrive. pantheon of American political delphia convention that they would As if to mark Heaven's own dis- icons. The Constitution of 1787 thus be ready to accept almost anything pensation on the new Constitution, began its existence witha venera- it offered. The outpouring ofpopu- tion already engendered by Federalists reported that the weath- a long lar celebrations of the inception of er was fair, there was neither disor- colonial and Revolutionary history. the new government, even before der nor injury, the processionwas ratification was formally secured in Ratification "well conducted," and the crowd some states, seemed to bear out retired after the day's events "with- Sullivan's prediction. New York out v),y instance of rudenessor None of this is to imply thatthe City's festivities were heldthree Constitution did not require careful intemperance." days before the Poughkeepsie Con- There were other processions in cultivation by its earliestsupport- vention approved the new Constitu- Boston, Charleston, Baltimore, An- ers in order for it to assume the tion on behalf of the State of New symbolic power it came to napolis, Hartford, New Haven, New- possess. York. Federalists in New York City port, Trenton, Albany, and Ports- It could hardly have beenan auto- orchestrated a huge "Federal Pro- mouth and Salem, N.H. The theme this Constitution 11 s By 1837, when the Constitu- tion's jubilee was observed, the elements in the canonization of thatdocument were all in place.

of union prevailed everywhere. An float, carrying a copy of the Consti- remarked with pleasure that hun- ode especially composed for the tution and standing inside the fig- dreds were heard to comment that occasion in Albany typified the sen- ure of a giant bald eagle which "Heaven was on the federal side of timent: stood thirteen feet high and sported the question." thirteen stars and stripes. Seven- At the close of the day's events, YORKERS rejoice! Your state is Rush proudly exclaimed: " "ris SAV'D FROM BLOOD! teen thousand peoplehalf the UNION protects her with a population of Philadelphiaassem- done! We have become a nation." guardian's care; bled to meet the procession at its But the Federalists could not rest DISCORD, that threaten'd like a close and to dine on 4,000 pounds on these slim laurels. The Constitu- raging flood, of beef, 2,500 pounds of lamb, and tion was not quite universally ac- 3,500 gallons of beer. The ode cepted. Albany's Ant:-Federalists Has spent the fruitless breath in observed the Fourth of July by pub- empty air. which Hopkinson wrote for the oc- Bostonians held their parade on casion reiterated the now universal licly burning a copy of the new February 8, 1788, as soon as their theme: frame of government; at Carlisle, And let the PEOPLE'S Motto ever Pennsylvania, they prevented a own state had ratified the Constitu- public celebration; and in Provi- tion and before the requisite num- be, ber of nine states had acted, but the UNITED THUS, and THUS dence, R.I., armed Anti-Federalists Bay Staters were confident the new UNITED-FREE. broke up an incipient Federalist charter would go into effect. The Nature cooperated once more. barbecue. If, as Carl van Doren has centerpiece of their procession was The sky was overcast during the declared, the grand federal proces- procession, shielding the partici- sions were "symbolic act[s] of faith a ship, the Federal Constitution, in the future of the United States," drawn by thirteen horses, symboliz- pants from the hot sun. A cool ing the embarkation of the new breeze blew all day, and "in the the symbols would have to be rein- government on the sea of liberty. evening the sky was illuminated by forced over and over again during (The federal ship became the focus a beautiful aurora borealis." Benja- the next half-century to give them of most celebratory parades there- min Rush, observing the parade, permanency. after) Again, observers remarked

on how "Everything was conducted July 29, 1788. with the greatest order," and how Illustration in celebration of New York's ratification, July 25, 1788.Neuvr_wl, Packet, "Candor, Love, Harmony, Friend- American Antiquarian Society. ship, and Benevolence" prevailed. In the rhetoric of the Federalists, the word "federal" connoted everything that was good, honest, dignified, and American. Philadelphia's grand procession topped them all. It was held on July 4, 1788, after the ninth state had ratified, and it linked Washington, Independence, and the new Consti- tution in a near-mystical trinity. Charles Willson Peale, the artist, and Francis Hopkinson, the writer, were the principal organizers. Peale designed a "Grand Federal Edifice" for the march. It had thirteen Corin- thian columns, and around the pedestal were the words "In union the fabric stands firm." The procession also displayed a Federal ship, the Union. Pennsylvania's ChiefJustice Thomas McKean rode on another this Constitution 18 7 - 1 :3 8 battle. The Constitution, likethe rainbow afer the flood,appears to us now just emerging froman overwhelming commotion; and we know the truth of the pledge from the sanction of hisname. The production was worthy of its authors.... you cherish it,... and resolve to transmit it, with the name of Washington, to the latest generation, who shall prove their just claim to suchan illustrious Emblematic eagle preceding two odes to the Constitution printed in the New-York Packet, July25. 1788. descent. Library of Congress. Historians and textbook writers lent their hand in themovement to Reinforcement canonize the Constitution. Withthe mote the glory of God." exception of the Anti-Federalist The judiciary joined in the beati- Mercy Otis Warren, virtually Politicians, editors, historians, fication of the Constitution. Judge all of clergymen, lawyers, and educators the early historianswere ardent Alexander Addison of the Pennsyl- promoters of the new framework of joined in the effort to makethe vania Court of Common Pleas, Constitution an emblem of government. David Ramsay conced- national dubbed by Jeffersonians "thetrans- ed that the Articles served unity and virtue. Religionwas in- montane Goliath of federalism," a pur- voked to demonstrate that the pose in demonstrating the need for Con- demonstrated the depth of hisco- stitution was as much a part of the reform. The Constitution itself,he victions in one of his jury chargesin wrote, was a "triumph of virtue divine plan as the Revolution,al- and 1791: good sense, over the vices reae- sanctified in the publicimagi- The laws and Constitution and fol- nal'. A Connecticut newspaper of our lies of human nature." It combined government ought to be regarded "law with liberty, energy with early sounded the spiritual note in with reverence. Man must have safe- proclaiming that "pious ty, the freedom of a small state with men of all an idol. And our political idolthe strength of a great empire." denominations will thank Godfor ought to be our Constitutionand having provided inour Federal Ratification was the last act in the laws. They, like the ark of thegreat national drama initiated by Constitution an ark, for thepreser- covenant among the Jews, ought vation of the justice and liberties the Revolution. John Marshall,in of to be sacred from all profanehis Life of Washington, the world." Benjamin Franklinin a touch. did not geriatric burst of uncharacteristic devote much attention to theCon- The death of Washington in 1799 stitution because he treated itas religious zeal, expressed hiscer- permitted the myth-makers to link tainty that so momentousan event foreordained, but he took timeto his already widespreadfame with note the "imbecility" of those who as the creation of a newgovern- the Constitution's efficacy. ment under the Constitution could Thus, wrote the Articles, which he called George Minot, historian andsecre- not have occurred "without being tary of the Massachusetts ratifying "absolutely unfit for use"and in some degree influenced,guided praised the Framersas "men of convention, rhapsodized in thiseu- enlarged and liberal minds." and governed" by divineProvi- logy to the fallen hero: The dence. New England preachers Constitution he regardedas the as- The people he has savedfrom only hope of national sured their congregations thatthe government; external tyranny suffer fromthe on its success depended "the union inauguration of the newgovern- agitations of their own unsettled ment in 1789 was "declarative of of the states, and the happinessof powers. The tree of liberty, which America." the superint^,ndence of God,"and a he has planted andso carefully Connecticut magazine challenged By 1837, when the Constitution's guarded... flourishes beyond itsjubilee was observed, the any true Christian to deny that strength.... But he comes! In elements Heaven itself had inspired the in the canonization of thatdocu- new convention he presidesover government, "calculated topro- ment were all in place, and the councils, as in war he had ledto Constitution had begun toweave its this Constitution i.' 1 ti..1 +7.A 139 19 "word-magic" spell over the Ameri- can people. The documentsigned in Philadelphia fifty years earlier was portrayed as the sheet anchor of national stability. It had rescued the nation from post-Revolutionarydi- saster. It fulfilled the ivisis of the signers of the Declaratio'It was the capstone of the War for Inde- pendence. It not only defined the past but shaped the presentand ordained the future. And it wasthe work of heroes viewed in the hazy light of semi-divinity. They were to be honored for their prudence,integrity, and virtue. They were tobe revered as true Fathers ofthe Country. Indeed, their only flaw was that, in doing theirwork so perfectly, they had left so little for future generations to do. At best, later Americans could remainfaith- ful to the "precious memory ofthe sages" who had taught them republican virtue. And the Constitution itself was the symbol of theirhandi- work under Providence's guidance. Perhaps the greatest tribute to the new symbolism andmythology Daniel Webster replying to Robert Mayne in their 1830 debate onthe Constitution, engraving from Our First was the relative speedand ease Century (1876). Collection of the Architect cf theCapitol. Library of Congress. with which former critics ofthe Constitution accepted it and joined Quincy Adams gave a celebratory in paying their homage to it.As his inaugural address; the "palladium of Americanliberty," Story address in New York City linking Charles Pettit, a Pennsylvania Fed- the Declaration of Independence eralist put it in 1800, with some boasted in his Commentaries on of the Constitution; the "nearest ap- with the Constitution "as parts of amazement, despite the intensity one consistent whole." political factionalism and partisan proach to supreme wisdom," Daniel Webster declaimed in the halls of strife, "both parties profess. an at- An Unstable Instrument tachment and reverence for, the Congress; and "the most wonderful Constitution as their guide." When instrument ever drawn by the hand of man," unparalleled in its"com- But there was disturbing evi- they differed, he noted, each dence that the constitutional cult charged the other "with designs to prehension and precision," Justice William Johnson announced from would have to continue to be nur- warp, subvert, and destroythe Con- tured in the years ahead, The date stitution itself." his seat on the Supreme Court bench. In his Farewell Address to the Constitution was signed, Sep- It was left only to describe the tember 17, had never been celebrat- nation's half-century old charter in the nation in 1837, Andrew Jackson assured citizens that the Constitu- ed as a national holiday, and it was terms of perfection: "the most per- not so observed at its jubilee.(It fect social compact the wisdom oftion was "no longer a doubtful experiment" and that under its super- was not to be designatedofficially man has hithertodevised," exulted as a commemorativeday until one Fourth of July orator;the "con- intendency, thecountry had preserved liberty and property and 1952!) The day was a Sunday in summation" of America's history, 1837, and Congress was not in ses- John Quincy Adams announced inpromoted prosperity. And John (iris constitution 20 140 "77w Constitution was intended as an instrumentof great political good; but we sometimesso dispute its meaning, that at all." we cannot use it Daniel lVebster, 1.342

sion, but neither house marked the the Constitution in the event by even so muchas a word public imagi- as testimony to the creationof a the day before nation was the growingfocus on nation was not at all or the day after. the documentas a yet unstable so sure twenty Both houseswere absorbed in de- years later. In the midst of the instrument of government.It could inter- bates over the new bankingsystem nationaldifficulties with Britain and the annexation scarcely evoke unanimityas a sym- and France, Rush of Texas. The bol when the meaning asked bitterly: date was ignoredin the public of the Con- "What shall we fightfor? For our stitution was debatedbitterly on prints, as well. Newspaperscarried the stump and in Congress. Constitution? I cannotmeet with a accounts for September 17of a While man who loves it. It is considered balloon ascent by Webster and Hayne bothavowed as too weak by one half a female astro- their allegiance to the of our naut, a 24-hour horserace, non- Constitution citizens and too strongby the oth- in their historic debatein 1830, the er." And an equally stop, employing 12 horsesover a event was, in Max Lerner's despairing Dan- 788-mile course, and words, iel Webster complained the discovery "the climax of theattempt to solve in 1842 that of the remains ofa mastodon in "The Constitutionwas intended as national problems throughconsti- Rochester, N.Y., but nota line about an instrument of greatpolitical tutional symbols; andthe attempt good; but we sometimes Constitution Day. Anew magazine was a failure." Cynics like so dispute launched in October1837 to pro- Senator its meaning, thatwe cannot use it at William Crawford ofGeorgia de- all" mote democratic politicalprinci- clared himself sick of ples contained eulogies of Resolution of the issue no reference to the the Constitution byadvocates of was not anniversary of the signingof the national power to come until the CivilWar, but Constitution, although it or states' rights. from that bloody did carry a "The gentlemen... still view it as a conflict was to poem dedicated to the emerge a symbolismeven more warship model of perfection. Theyare cer- Constitution. tainly at liberty to powerful than theone first created Why was the national entertain that by the Federalists. The symbol, so opinion. Everyman has a right to new cult of sedulously cultivated byfriends of erect his idol in this land the Constitution madethat docu- the C onstitution Tfor of liberty, ment the hallmark of a half-century and to worship itaccording to the laissez-faire now ignored? For one, July 4thhad dictates of his conscience." conservatism and a bulwarkagainst already become thecenterpiece of radical socialism; butit also came patriotic observances, An innocuous jointresolution in- to signify, in time, the utilized by troduced in Congressin 1837 to promise of temperance and peaceadvocates, opportunity, equality, andexpand- appropriate $30,000 for theacquisi- abolitionists andwar veterans, to tion of certain manuscripts ing democracy forothers. The identify American idealswith their of meanings changed, butthe symbol James Madison dealingwith the remained as the vehicle -causes. Independence andUnion, Constitutional Convention of the na- the Declaration andthe Constitu- pro- tion's life, an idealizationof its best voked a furious debatebetween hopes and aspirations. tion, Washington andthe Founding Webster and Calhoun Walter Bage- Fathers were all merged over whether hot once said that impercep- Congress had thepower to spend every govern- tibly in these observances,leaving ment must cot 'ainsomething of little room for distinctive money, under the "general welfare" the "dignified" or "majestic" recogni- clause, for thispurpose. John Niles princi- tion of Constitution Day.And even ple to give cohesiveforce to its of Connecticut notedwearily: "Who the Glorious Fourth hadlost some existence. For a nationthat had of its old emotional is to decide what is thetrue theory eschewed the monarchie', appeal as it and exposition of the aristoc- became formalizedor deteriorated Constitution? racies, and establishedchurches This has been a subjectof contrk.- that were emblematic from a holy day toa holiday. There versy from the formation of European were editorial complaintsthat the of the societies, perhaps theConstitution, Constitution." Americans mightstill celebrations had degeneratedinto agree that the Constitution signifying the rule of law,was not drinking orgies, "eating,firing of was a such an inappropriatesymbol. guns, dancing, and quarreling." palladium of liberty butthey could not decide whether itsbeneficence Only Americans,one writer com- Milton M. Klein is professorof history stemmed from its characteras the emeritus at the University plained, would blemishthe anniver- supreme last of a nation of Tennessee, sary of their birth asa nation by or as a Knoxville. He is the authorof The Poli- getting wildly inebriated. compact among sovereignstates. tics of Diversity: Essaysin the History of Benjamin Rush, who hadhailed the Colonial New York (1974)and general More important in theblurring of adoption of the Constitution editor of the 13-volumeHistory of the in 1788 American Colonies (1973-1986). this Constitution 141 21 DOCUMENTS

The FederalConstitution, Boys,and Liberty Forever: Musicand theConstitution by JANNELLEWARREN-FINDLEY

other delegates, heard a concert atthe City Tavern. The history of a time is reflectedin its music. context for Alexander Reinagle performed,possibly playing Music serves to provide a cultural written for piano-forte or action, as when the march"Hail to the Chief' one of his own sonatas the President of the Unit-harpsichord. announces the arrival of Other musical occasions undoubtedlyhelped to ed States. Music also serves as adocument of that tune. In thelighteli the tension and oppressiveheat as the dele- culture, like a newspaper story with a gates passed the summer arguing,debating, and case of the making andratifying of the Constitu- used both inshaping fundamental laws bywhich to govern a tion of the United States, songs were activities were, in those activities. free society. Music and musical support of and in dissent from fact, widespread in the America ofthe 1780s. Mu- Published either in local newspapers or asbroad- without sic travelled to the colonies withdeeply devout side ballads sold on the street, with or churches with unac- mention of a melody and, for the mostpart, of- settlers who filled their new allow us to companied song. Early musicalorganizations de- fered anonymously, these early pieces which the clergy hear fragments of the debate whichprogressed asveloped out of singing societies encouraged to improve the congregationalrendi- the document itself was formed,examined, and ul- like the po- tion of psalms. Coming fromthose origins, New timately accepted. These songwriters, 1744. Music- satirists York had a "Musick Club" as early as litically-oriented folksingers and musical in Charleston particular lovers formed the SL. Cecilia Society of our century, frequently promoted a Club appeared in of constitution-shap- in 1762. Philadelphia's Orpheus point of view on the process 1759 and Boston's Music Societyfollowed in 1786. ing and ratification and attempted topersuade the give mod-Groups also formed in Concord,Baltimore, Freder- listener to support that stand. The songs These groups ern listeners the means toexplore some of the icksburg and Newport before 1800. reactions to it. gave only choral concerts. complexities of that process and sacred of voices Early music-making was not limited to They also allow us to hear a mixture brought with them a vast concerned with these importantissues, because song. The newcomers store of traditional secular songswhich were the broaJsides were oftenwritten by citizens who included worksongs directly involved in constitu- mostly British in origin. These were not themselves and music for rituals likecourting, love songs, tion-making. The songs, in that sense,reflect some- also recalled the the more for- dances, and marches. The settlers thing of a vox populi in contrast to past they had left behindthrough the ballads mal written texts of the time. whose story-telling could preserveelements of the history of great events and smalloccasions in ev- from the 1790s in- Philadelphia in the summer of 1787 was ahot, eryday life. A printed collection cluded traditional songs such asSoldier's Joy, The fly-infested place. To escape thediscomfort, the Dear, What Can the Convention ended Irish Washerwoman, and 0 delegates to the Constitutional Matter Be?. work at 3 p.m., though informalstrategy sessions kinds of concer- continued into evening ac- In addition to the more formal and personal politicking tizing, music-making and musicalexpression, the tivities. For some of the delegates,those evenings them a broad- Washington, for ex-British immigrants also carried with included concert-going.'George side tradition with lyrics based onthe news of the ample, attended concerts frequently.On May 29, with the in- heard a Mr. Ju- day. The tradition began concurrently 1877 in Philadelphia, Washington troduction of printing in England inthe 1470s and han perform. The program fromthat evening sur- street singers whose bal- mix of musi- was started by London vived; the audience was treated to a lads were made up of current eventsand gossip. cal types. Two pieces byAlexander Reinagle, an well-known tunes. to America as The lyrics were matched with English composer who had come Originally, the lyrics of the broadside or"broad- the music teacher of Washington'sstepdaughter, of a sheet of violine[sicj newly com- sheet" were printed on one side only Nel ly Custis, and a "solo paper and the singer soldprinted copies of the posed" by Juhan, himself animmigrant composer, broadside used both evening's music was rounded verses to passers-by. The were featured. The journalistic and literary materials.As a literary his- out by flute, violin and"guittar" [sic] numbers and "Journalistically, its prov- On June 12, torian has described it, two overtures from baPad operas. ince was that of the lurid andthe startling. Ac- General Washington, perhaps inthe company of

14 this Constitution 22 )(7iied'ir(43 jar(/

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counts of crimes, disasters, monstrosities,and type of expression concerned withAmerican polit-- other violations of natureso agreeable to a six- cal events began to teenth-century taste, were hastily appear in the colonies in the printed and eighteenth century. Songs, complete hawked about the streets fora penny...." with the borrowing of tunes thatwere widely familiar, could be These techniques of song-makingeventually learned quickly and used passed into theatrical practice. John as propaganda to pro- Gay's Beg- mote various points of view. Thepractice must gar's Opera (produced in Londonin 1728) and other ballad operas of the same period made have developed early; by 1734, theattention of the the proc-authorities had been caught anda New York grand ess even more popular and spread itmore widely jury ruled against two allegedly"Seditious Songs." among the general population. "Every citizen,"one The American Revolution, musicologist claims, "hada means of expressing however, caused the full development of this kindof musical expres- his opinion, while maintaining hisanonymity, by sion. The songs, one historian composing new verses toan old tune and publish- notes, "satisfied a number of needs arising from thewar itself: to ing them in newspapers, magazinesor single bal- convey news of battles and naval engagements,to lad-sheets." While it seems unlikelythat "every cit-celebrate triumphs, to poke fun izen" took advantage of the at the enemy, to practice, many clearly promote an understanding ofwar aims, and to participated in these growing publicforms of expression. arouse the courage of men and women." Topical lyrics set to familiar populartunes, the broadsides The first sheet of printedmatter to appear from could play an important role becausethey in- an American press was a broadside. Stephen formed and/or persuaded Daye's press, setup at Cambridge, Massachusetts even as they entertained. And while occasions forentertainment were rare in 1638, issued the "Freeman'sOath" in 1639. This during the War itself (outsi ie ofBritish-controlled

this Constitution 143 23 cities, at least), postwar theaters and taverns pro- mansion with a decaying roof. Despite the short video exposure for more political comment set to period of use, it needed repair and its owners music. called in architects to recommend how to proceed. Many American ballads written in the eighteenthThey found that thirteen key rafters were uncon- century were found in colonial magazines and nected by the kinds of braces or ties necessary for newspapers. They usually followed the Englishfor- effective union. Some rafters were warped from mat of printing lyrics without music, although the too much weight, some shrunk from too little title of the tune was frequently noted. It was not weight. Other symbolic architectural flaws made a unusual, however, to have no melody noted for a new roof necessary, and the piece closed with the given set of lyrics. family debating the new design. Hopkinson appar- In fact, the best-known song written to support ently adapted the song "The New Roof (A New ratification has a disputed tune. "The New Roof (ASong for Federal Mechanics)" from that prose par- New Song for Federal Mechanics)" by Francis able. Hopkinson, which is also sometimes called "The Raising," had no surviving music manuscript or fa- THE NEW ROOF miliar tune assigned. One music student claims (A NEW SONG FOR FEDERAL MECHANICS) that "To Anacreon in Heaven" (the tune for the "Star-Spangled Banner") was used but the lyrics Come muster; my lads, your mechani- do not fit the music easily, and it thus seems an cal took., unlikely choice. Your saws and your axes, your ham- Francis Hopkinson was accomplished enough as mers and rules; a musician to use music that fit his work.A lawyer Bring your mallets and planes, your and judge, a signer of the Declaration of indepen- level and live, dence in addition to his various artistic avocations, And plenty of pins of American pine; Hopkinson laid claim to being the first composer For our roof we will raise, and our in the United States. In 1759, just four years out of song still shall be, the College of Philadelphia (later the University of Our government firm and our citi- Pennsylvania) he wrote the first of his four secular zens free. songs which make up the bulk of pre-Revolution- ary non-religious composed music in thecolonies. Come, up with the plates, lay them finn This group included My Days Have Been So Won- on the wall, drous Free; The Garland; Oh! Come to Mason Bor- Like the people at large, they're the ough's Grove; and With Pleasures Have I Past My ground-work of all, Days. During the Revolutionary War, Hopkinson Examine them well and see that they're wrote "The Battle of the Kegs," a spoof of an ex- sound, periment with floating mines on the Delaware Riv- Let no rotten parts in our building be er. found; Hopkinson was not a delegate to the Constitu- For our roof we wilt raise, and our tional Convention, so the exact role that he or his song still shall be, broadside played is not known. As one of the lead- Our government finn, and our citi- ing citizens of Philadelphia, however, he must have zens free. had frequent contact with the delegates after the day's meetings ended. The 1901 "History of the Now hand up the girders, lay each in University of Pennsylvania" asserted that "he was his place, an active participator in the debates of he conven Between, them the joists must divide all tion of 1787 which formed the Constitution of the the space. United States, and he produced at this time a hu- Like assembly-men, these should lie lev- morous work, entitled 'The History of a NewRoof,' el along, which seems to have had a great influence upon Like girders, our Senate prove loyal and some of the most distinguished men of thetime." strong. The "New Roof' portrayed the government For our roof we will raise, and our formed under the Articles of Confederation ^s a song still shall be,

this Constitution 24 1 4 A government firm,over citizens free. Up! up with the rafterseachframe is a State! The rafters now frameyour King- How nobly they rise! theirspan, too Posts and braces, how great! And drive your pins home,to keep all in their places; From the north to the south,o'er the whole they extend, Let wisdom and strength inthe fabric combine, And rest on the walls, wuile thewalls they defend. And your pins all be madeof American pine. For our roof we will raise,and our song still shall be, For our roof we will raise, andour song still shall be, United as States, butas citizens free. A government firm,over citizens Come, raise up the turretourglory free. and pride In the centre it standso'crthe whole Our King-Posts are JudgesHowup- to preside; right they stand, The sons of Columbia shall Supporting the Braces, the view with Land Laws of the delight Its and arches and towering The laws of the land, which divideright height. from wrong, Our roof is now raised, and And strengthen the weak byweak'ning our song the strong. still shall be, A Federal Head, o'era people still For our roof we will raise,and our free. song still shall be, Laws equal and just:"a people that's free. Iluzza! my brave boys,our wo7- is complete, this Constitution 145 25 The world shall admire Columbia's fair Front such dismal scenes let us hasten seat; away. Its strength against tempests and time Our Freedom we've won, and the shalt be proof, prize let's maintain And thousands shall come to dwell un- Our hearts are all right der our roof Unite, Boys, Unite, Whilst we drain the deep bowl, our And our EMPIRE in glory shall toast still shall be, ever remain. Our government firm. and our citi- The Muses no longer the cypress shall zens free. Irwin Silber, ed. Songs America Voted By wear (Harrisburg, Pa.: Stackpole Books, 1971), p. For we turn our glad eyes to a prospect 20. more fair: The soldier retuned to his small cut- Hopkinson's architectural imagery Look the coun- tur'd farm, Enjoys the reward of his conquering try by storm and reoccurred inratification parades "plates" like the arm. and political rhetoric. Built on the "Our Freedom we've won," &c. people at large, "girded" by the Senate,with "King- Posts" as judges braced by the vs and rafters as the states both supporting and supporteu oythe Our trade and our commerce shall walls, "Columbia's fair seat" was solid. The new reach far and wide, And riches and honour flow in with roof was topped by the turret which, as"A Federal Head" (otherwise known as the president),stood each side andChinawith wonder guard over the mansion of freedom. Kamschatka Hopkinson's Federalist sympathies were by no shall stare, FederalStripes should wave means the last words pennedin song form, though That the about the gracefully there. the various ways of expressing views "Our Freedom we've won," &c. matter differed dramatically. As VeraBrodshy Law- Music for Patri- rence notes in her brilliantbook, the andPresidents: Harmoniesand With gratitude let us acknowledge ots; Politicians, worth, Discords of the First Hundred Years,"an ava- lanche of songs variously w red,discouraged, con - Of what the CONVENTION has call'd as states ratifi3c1 into birth, gratulated, or wryly c,1nment And the Continent widely confirm what or hung baci....." Thefollowing song, with its mix expression and the is done of classical allusion, vernacular brave Federalist version of recent Americanhistory, ap- By FRANKLIN, the sage, and by The anon- 3HINGTON. peared just after the Conven'Ion ended. "our Freedom we've won," &c. ymous author published it intheMassachusetts Centinelon October 6, 1787. The wise CONSTITUTION let'struly re- THE GRAND COvSTITUTION vere, It points out the course of ourEMPIRE Or, The PALLADIUM of COLUMBIA: A New FEDERAL SONG. to steer, For oceans of bliss do they hoist the Tune"Our Freedom We've Won," &c. broad sail, And peace is the current, and plentythe Front scenes of affliction -- Columbia gale. opprest "Our Freedom we've won," &c. dis- Of credit exp:rinyand commerce With gratitude fill'dlet the greatCom- trest, Of nothing to doand of noting to monweal pay Pass round the full, glass to Republican

this Constitution 26 X46 O

zeal From ruintheir judgment and wisdom well aim'd; Our liberty, laws, and our creditre- Our Freedom we've won, &c.

Here Plenty and Order and Freedom sluzli dwell, And your Shayses and Dayses won't dare to rebel Independence and culture shall gra- ciously smile, And the Husbandman reap the full fruit of his toil "Our Freedom we've won," &c. That these are the blessings, Columbia knows The blessings the Fed'ral CONVENTION bestows. 0! then let the People confirm what is done By FRANKLIN the sage, and by brave WASHINGTON. tion, its progress could be charted by the songs Our Freedom. we've won, and the produced to mirror or to influence the debate. prize will maintain While Pennsylvania had to resort to physical vio- By Jove we'll Unite lence to maintain a quorum for its motion to hold Approve and Unite a ratifying convention, its papers did not reflect And Iruzza for Convention again and the full debate; the Federalists "bought up" all the again. local papers and featured only their own point of Vera Brodsky Lawrence, Music for Patriots, view. Nonetheless, Philadelphia Anti-Federalist Politicians, and Presidents: Harmonies and poet Peter Markoe wrote "The Times" and "The Discords of The First Hundred Years (New Storm" to link the Federalists to religious heresy, York: Macmillan Publishing Co.. 1975), p. 101. (Used with permission.) luxury, and standing armies to enforce the system of checks and balances. Another "anti" described with contempt thepa- "Shayses and Dayses" refers to Shays' rebellion rade held at the conclusion of the ratificationproc- and helps to remind the singer of thereasons for ess in Massachusetts, and by extension, the back- writliig the Constitution. As this song points out, ing and filling of the convention itself. In "The the great ship EMPIRE, guided by the Constitution, Grand Federal Edifice" (no tune noted) the writer will sail away from the lawless uprisings, credit commented, crises, commercial problems and financial distress, the legacy of the Articles of Confederation, justas 7'here they went up, up, up, soon as ratification occurs. The ship, setting off And there they ?vent down, down, downy, "for oceans of bliss" on a current ofpeace and a There they went backwards and forwards,

wind of plenty would have as captains the "sage" And poop for Boston towny!.... Franklin and "brave" Washington. Theirpresence would complete a common triad of symbols: the Lawrence, Music for Patriots , p. 106. Federal ship, with the two hers who steered her In response to this slur, anotheranonymous ver- new course. sifier published a different description et ratifica- As the document went to the states for ratification in the Massachusetts Centinel. The "Yankee

this Constitution 147 27 song," with its symbolic thirteen verses, tells in a The question being outright put, straightforward fashion what happened at the Mas- (Each voter independent) sachusetts convention. Upon assembly, the Anti- The Fed'ralists agreed ('adopt, Federalists seemed to be in the majority. John And then propose amendment. Hancock, who had been chosen to preside, stayed Yankee doodle, etc. away with an attack of gout (or perhaps of indecision since he apparently wanted to come out on The other party seeing then the winning side). Hancock, finally persuaded to The people were against 'cm, appear, indeed made a "woundy (top - notch] fed'ral Agreed like honest, faithful men, speech" in which "The Fed'ralists agreed t'adopt, To mix in peace amongst 'em,. and then propose amendment," the list of amend- Yankee doodle, etc. ments which removed most objections to ratification. The "devilish" (c.eudd) lads then made a fine The Boston folks are deucid lads, parade to celebrate. Rather than going up and up And always full of notions; and down and down, as the first song alleges, the The boys, the girls, their 'mains and dads, ratification parade featured elements common to Were filled with joy's commotions. all such celebrations: workers with their tools, the Yankee doodle, etc. "ship of state" (a float ridden by John Foster Wil- liams, a Revolutionary naval officer from Boston), So straightway they procession made, a feast where toasts were drunk to the past, the fu- Lord! how nation fine, Sir! ture and the constitutional heroes. Although no For ev'ry man of ev'ry trade, music was noted, the tune is certainly "Yankee Went with his toolsto dine. Doodle." Yankee doodle, etc.

YANKEE SONG John Foster Williams in a ship, Join'd in the social band, Si, The 'Vention did in Boston meet, And made the lasses dance and skip, But State-House could not hold 'cm, To see him, sail on land, Sir So then they went to Fed'ral street, Yankee doodle, etc. And there the truth was told 'em Yankee Doodle, keep it up! Oh then a whopping feast begun, Yankee doodle dandy, And all hands went to eating; Mind the musick and the step, They drank their toastsshook hands and And with the gills be handy. sung, Ifuzza! for 'Vention, meeting. They ev'ry morning went to prayer, Yankee doodle, etc. And then began disputing, 'Till opposition silenc'd were, Now Politicians of all kinds, By amuntents refuting. Who are not yet decided; Yankee Doodle, etc. May see how Yankees speak their minds; And yet are not divided. Then 'squire Hancock like a man, l'..nkee doodle, etc. Who dearly loves his nation, By a council'atory plan Then from this sample let 'ent cease, Prevented much noxation. Inflammatory writing, Yankee doodle etc, For FREEDOM, HAPPINESS and PEACE, Is better far than fighting. Ile made a woundy fed'ral speech, Yankee doodle, etc. With sense and elocution; And then the 'million did beseech So here I old my Fed'ral song, T'adopt the Constitution. Composed of thirteen verses, Yankee doodle, etc. May agriculture flourish long,

2$ this Constitution 14S .. .

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And commerce fill our purses. An end to its greatness ere long. Yankee doodle, etc. Lawrence, Music for Patriots. .., p. 107. Ye well approv'd patriots, whose talents and worth To urge the New York convention to vote affir- Our most grateful expressions demand, matively on ratification, a song composed for the On this awful occasion we challengeyou Fourth of July 1788 expressed its sentiments ina forth, stylized, florid form. According to Lawrence, the In defense of the union to stand; authors met at Mr. Dawson's tavern in the town of Those ant's [sic) arrest, in their daring "Brooklyne" to celebrate the holiday. The tune, al- career, though not mentioned, may be "The houndsare all Who for gain would their country undo; out, etc.". In "A Federal Song," excerpted here, From them we have ev'rything evil to they compare the Fourth of July to the national fear, days of England, Scotland and Ireland andurge And all things to hope for from you. that such a "day of delight" deservesa strong federal government. The song continues: Now let the charg'd glasses go cheerfully round, In freedom and blest independence secure, 77tro this little republican band Our prosperity scarce is alloy'd; In such friendship and firm unanimity So vast a profusion offavors, issure bound, More than country has ever enjoy'd. May the thirteen fair pillars e'er stand. But one thing is needfUl; a government In hilarity thus while we spend this blest free, day, Just and fed'ral, efficient and strong, While we raise the bright bumpers on This land must adopt, or alas! we shalt high, sewe (Our hearts full as our glasses) let each of

this Constitution 149 29 vs say held a giant constitutional parade on .July 4, com- Here's again to the FOURTH OF JULY. plete with a copy of the Constitution placed on a Lawrence,Musk for Patriots . ,p. 111. staff and carried aloft through the streets. Elabo- rate floats represented the ship of state, a giant The Anti-Federalists in New York also used American eagle and the federal edifice with three song. In reaction to the actions of the New York unfinished columns. The music included an ode by convention at Poughkeepsie, for example, an anon- 'rancis Hopkinson, who also designed the celebra- ymous dissenter published the following in The tion, and a march written by Alexander Reinagle, New York Journal and Daily Patriotic Register, "The Foederal March." July 28, 1788. No tune was noted. "The F'oederal March" was followed by others. A Mr. Sicard composed the New Constitutional A SONG March and Federal Minuet in fall 1788. Even after ratification was completed, with Rhode Island in What means their wisdoms roving to May 1790, the celebration of the making of the Poughkeepsie, Constitution continued. As time went on, the syn., 77wir heads with politics are surely tip- bols became more generalized. The speciCc politi- sey! cal references from the periodto Dayes and Why to the Druids ancient haants be Shayes, for examplegave way to broader imagery trotting, which represented the union which had been con- Where naught but acorns on the ground structed by an earlier generation. TI.e men and lie rotting? events mentioned reflected the passage of time The oracles long sinco have left their that the Constitution as primary document became oaks, intertwined with more recent developments. And minded vow no more than pigs in In a discussion of a series of "Washington's pAkes, marches," one music historian duplicated an exam- And laughed to scorn by evem John, a ple which was "very popular 'out 100." He cop- Nokes: ied them from the Philadelphia Monthly Magazine Unmask your faces then, and one and for May 1798, where they read: all Sing falderal and anti-falderal. Tut: NEW YORK R4 'MIMIC SONG, CHORUS called Federal, falderal, federalist. THE FEDERAL CONSTITUTION BOYS, Your thumb to your mouth, and your AND LIBERTY FOREVER nose to your fist, Federal, falderal, federal tit. Written by Mr. MiltsSung by Mr. William- Keep fast all behind you or you're sure- eon, the Music adapted by ,11r: Hewitt, from ly b-t Washington's March and Yankee Doodle. Sing falderal, federal, ant's jsicl and I yeomen, Blware of the snare as you're truemen Poets may sing of the Helicon streams, and freemen, Their Gods and their Heroes are fabu- Federal, falderal, fiddle de day, lous dreams; Falderal. tit and tit falderay. They ne'er sang a line Half so grand, so u: nine, Lawrence, Music forPatriots p. 112. As the glor'ous toast, But New York came in on July 25, despite the We Colombians boast warnings of the "ant's" or Anti-Federalists to "be- The Federal Constitution, boys, Al Lib- ware of the snare." Word arrived that Virginia had erty forever.

ratified thus threatening New York with the II "snare" of isoiation despite her Anti-Federalist numbers. Adams the man of our choice guides the To celebrate Virginia's entrance, Philadelphia helm

30 150 IsConstitutka No trt otpet can harm US, no storm Of delight round his head overwhelm; No nation can boast Our sheet anchor's sure Such a namesuch a toast And our bark rides secure, The Federal Constitution, Boys, and So here's to the toast Washington forever. We Columbians boast Oscar Sonneck, Francis Hopkinson, The First The Federal Constitution and the Presi- American Poet-Composer (1737-1791) and dent forever. James Lyon, Patriot, Preacher, Psalmodist (1735-1794) (New York: Da Capo Press, 1967 III 11905)), pp. 102-103.

A free Navigation, Commerce and John Adams was now president. Old heroesstill Trade, "live in our songs" but younger heroes steppedfor- We'll seek for no foe, of no foe be afraid; ward to emulate then and to take their places.An Our frigates shall ride event which may have been the "XYZ Affair" with Our defense find our pride; its suggestions of bribery clearly still smarted. Our tars guard our coast "The Federal Constitution"was linked, in these And huzza to our toast toasts, to general themesliberty, trade andcom- The Federal Constitution, Trade and merce, integrityand to noted patriots, the Presi- Commerce forever. dent, the Federalists, and Washington. But the verses focus on current events which are madese- IV cure by the document, rather than on the docu- Montgomery, Warren, still live in our ment itself. songs, The shifting focus in this final example makes Like diem our young heroes shallspurn clear the distance between the events of the 1780s at our wrongs and the present, and the ascent ofa new genera- The world shall admire tion. The Federal Constitution had been ratified, The zeal, and the fire was in fact the law of the land. But the toasts list- Which blaze in the toast ed here reflect those older voices, raised inopen We Columbians boast debate about the country's futurecourse. The de- The Federal Constitution and its advo- tails and the tone of the constitutional debate cates forever: songs give a tantalizing glimpse of the charges, and the passions of people living througha crucial time V in the development of the government ofthe Unit- ed States. John Hancock had finallycome through, When an enemy threats all party shall the Ant's had lost, the new roofwas in place. With cease the controversy over, the debate at rest, allcould We bribe no intruders to buya mean join the rousing, and finally collective chorus,"The peace Federal Constitution, boys, and Liberty forever." Columbians will scorn Friends or foes to suborn; Suggested Additional Reading: We'll ne'er stain the toast Which as free men we boast Denisoff, R. Serge. Sing a Song of Social Significance(1972). Lawrence, Vera Brodsky. Music for Patriots, Politicians,and The Federal Constitution and integrity Presidents. Harmonies and Discords of the First Hundred forever Years (1075). Lawrence, Vera Brodsky. Themes and Variations for Patriots, Politicians, and Presidents (1975). VI Rabson, Carolyn. Smigbook of the American Rerolution (1974). Fame's trumpet shall swell in Washing- Scott, John Anthony. The Ballad of America. TheHistmw of the United States in Song and Story (1983). ton's praise Silber, Irwin, ed. Songs America Voted By (1971). And Time grant a furlough to lengthen his days; May health weave the thread Jannelle Warren-Findley is senior fellow, Institutefor Resources, History and Policy, George MasonUniversity. this Constitution 151 31 For the Classroom

Teaching With The Federalist

The following lesson is excerpted from LESSONS ON THE FEDERALIST PA- PERS SUPPLEMENTS TO HIGH SCHOOL COURSES IN AMERICAN HIS- TORY, GOVERNMENT AND CIVICS by John J. Patrick and Clair W. Keller; published by_the ERIC Clearinghouse for Social Studies /Social Science Edu- cation at Indiana University, the Social Studies Development Center and the Organization of American Historians. The set of ten lessons is available from Publications Manager, Social Studies Development Center, Indiana University, 2805 East Tenth Street, Bloomington, IN 47405 for $12.00. (THE FEDERALIST No. 51 begins on the inside front cover of this issue.) N.:.

JA3IES MADISON.

Teaching Plan: Separation of Powers with Checks and Balances in The Federalist, Numbers 47, 48, 51

Preview of Main Points The purpose of this lesson is to increase students' knowledge of the conecin of separation of powers and a related concept, checks and balances, as expressed in The Federalist. The lesson features excerpts from three papers ofThe Federalist, 47, 48, and 51. Students are asked to reflect upon the meaning and value of separation of powers and checks and balances as basic principles of government in the Constitution of the United States.

Curriculum Connection This lesson can be used in combination with treatments of separation of powers and checks and balances in civics and government textbooks. It can be used to supplement the standard American history textbook chapter on the writing and ratification of the Constitution.

Objectives Students are expected to: (1) Identify and comprehend ideas on separation of powers in The Federalist 47, 48, 51. (2) Examine and explain ideas on separation of powers in The Federalist 47, 48, 51. (3) Find examples of separation of powers in the Constitution and explain how they fit ideas expres, 2d by Madison in The Federalist. (4) Evaluate ideas on separation of powers in terms of criteria in The Federalist. (5) State and justify a position about the value of separation of powers as a bask. principle of government in the Constitution. Suggestions for Teaching the Lesson Opening the Lesson. Ask students. What is separation of pm% ers in guNcrnmenr What is (heat, and balances in government? Have students read the first part of the lesson to follo%% up on the opening discussion and to reinforce knowledge of separation of powers that they bring to the lesson from other sources. Developing the Lesson. Have students read the excerpts from The Federalist, numbers -17, -18. Check students' comprehension of main ideas in the reading assignment by requiring them to complete the exert ise at the er.d of the two documents. Statements in item 3 that agree with Madison are: b and e. Assign the excerpt from essay 51 as the next reading assignment. Require students to complete the exercises at the end of this document as a check on their comprehension of main ideas in the reading. Have students turn to the five exercises on the final pages of the lesson. Haw students complete items 1-4 in preparation for a classroom discussion. Concluding the Lesson. Conduct a classroom discussion on items 1-4 hi the set of exercises at the end of the lesson. Require students to support or explain their answers by referring to pertinent parts of The Federalist 47, 48, and

32 this Constitution 152 TIIE I United States Magazine,

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, For JANU ARY1779.

The United States Magazine,January 1779. American Antiquarian Society.

51 In general, ask students to give reasons for theiranswers and encourage students to challenge the answers and reasons of their peers whenever they think that insufficient justification has been provided foran answer. Assign item 5 as the final activity of this lesson. Ask students to writea brief (no more than 500 words), cogent essay in response to this activity. Advise students to use thesesources, at least, in writing this essay. The Federalist, the Constitution, and their textbooks in civics, government, and history. Select two or three students to read their essays to the class. Assign other studentsthe responsibility of making a formal response to one of the essays. Use the formalresponses as stimulators of broader class discussion of ideas presented in the essays. Emphasize that the responses to theessays might be affirmative or critical or some combination of the two; or the responses might mainly introduce additionalor alternative ideas into the discussion. Discussions of items 1-5 should emphasize the interrelated civic values oflimited government, the rule of law, and liberty under law as desired ends or goals of separation ofpowers as a basic principle of government in the Constitution.

NOTE: Other essays in The Federalist that include dist ussion of separatioll ofiiters, mt 01111/11141lItillwith other topits, ai-e numbers 9,.37, 49, 60, 75, and 78. Interested students might be referred to one ormore of these essays. 153 this Constitution 33 Lesson: Separation of Powers with Checksand Balances inTHE FEDERALIST, Numbers 47, 48, 51

three branches of of powers, a major principle of theConstitution, is the distribution of power among and (3) the judicial. The legislativebranch (Congress) has power, government: (1) the legislative, (2) the executive, Constitution says that the according to Article 1 of the Constitution, tomake certain kinds of laws. In Article II, the has power to enforce or carry out laws.The judicial branch (headed by the executive branch (headed by the President) the law in federal court cases. Supreme Court) is established in Article III ofthe Constitution to interpret and apply enioree law, and interpret law, amongthree branches of government, is a The separation of power to make law, from having enough power to become means to limited government.It prevents any person or group in the government a tyrant and oppress thepeople. powers of government However, Antifederalists criticized theConstitution, because it does not completely separate takes part in law-making through the veto, among the three branches. Theypointed out, for example, that the president law passed by Congress. Furthermore, thelegislative branch is involved in the the chief executive's power to reject a officials. These exercise of executive power through its power to approvethe president's appointments of executive permits sharing of power among the threebranches, are merely two examples, of many,to show that the Constitution which the critics said was a weakness. James Madison responded to the critics bypointing to another principle of governmentin the Constitution, checks the government has power to limit orcheck the actions of the others. In this and balances, whereby each branch of president can check the power of Congress manner, the primary goal of limitedgovernment is served. For example, the overturned by a subsequent 2/3 vote ofCongress. This is one of several with the veto. But the president's veto can be balanced and limited. In checks exercised by one branch overthe others to keep the power of government and checks and balances provide a governmentof separated combination, the principles of separation of powers the actions of the branches that share power. Thus, each separatebranch of the government has some influence over without some cooperation from the others. others, and no branch can exercise its duties Constitution's provisions for Hamilton and Madison replied in several essaysof The Federalist to criticisms of the in this lesson. What is separation of powers. Excerpts from three essaysby Madison, numbers 47, 48, 51, are presented Madison's definition of separation of powers? Howdoes Madison justify his definition? NUMBER 47: MADISON political maxim that the ...One of the principal objections ... to theConstitution is its supposed violation of the legislative, executive, and judiciary departmentsought to be separate and distinct... intrinsic value.... The accumulation of all powers,legislative, executive, and No political truth is certainly of greater self-appointed, or elective, may judiciary, in the same hands, whether of one, afew, or many, and whether hereditary, of tyranny.... justly be pronounced the very definition Montesquieu.... [He] did not mean The oracle who is always consulted andcited on this subject is the celebrated in, or no control over (checks that these departments [three branches ofgovernment] ought to have no partial agency each other. His meaning ... can amount to no morethan this, that where the of one branch on another] the acts of of another department, whole power to one department is exercisedby the same hand, which possess the whole power subverted.... the funaamental principles of a free constitution are body, there can [Montesquieu says] ... "When the legislative andexecutive powers are united in the same person or monarch or senate ... [might] enact tyrannicallaws to execute them in a tyrannical be no liberty, because ... the same liberty of the subjects would be ex- manner." Again: "Were the power of judgingjoined with the legislative, the life and then be the legislator. Were it joined to theexecutive power, the judge posed to arbitrary control, for the judge would explained in other passages; might behave with all the violence of theoppressor." Some of these reasons are more fully establish the meaning which we have put onthis celebrated maxim of this but briefly stated ... they sufficiently sharing of celebrated author [establish separation of powers amongthree branches of go zernment, but also some the others from having too much power]. powers to enable each branch to stop instance in which the several de- If we look into the constitutions of theseveral States we find ... there is not a single absolutely separate and distinct.... [Stateconstitutions follow the principle of partments of power have been kept duties and powers of the other separation of powers with checks and balances;each branch has some part in the branches]. Constitution of violating the sacred ...What I have wished to evince is that thecharge brought against the proposed neither by the real meaning annexed tothat maxim by its author maxim of free government is warranted exemplified in the [Montesquieu], nor by the sense in which it hashitherto been understood in America [as States]. This interesting subject will beresumed in the ensuing constitutions of the several states of the United Publius paper.

... this Constitution 34 154 NUMBER 48: MADISON

... Unless these departments [three branches of government] be so far connectedand blended as to give to eacha constitutional control over the others[checks and balances], the degree ofseparation government... can never in practice be duly maintained. ... essential to a free It is agreed... that the powers properly belonging to one of the departments ought not administered by either of the other to be directly and completely departments. It is equally evident thatnone of them ought to possess... an overruling influence over the others inthe administration of their respective of an encroaching nature and that powers. It will not be denied that power is it ought to be effectively restrained frompassing the limits assigned to it.... Will it be sufficient to mark, -withprecision, the boundaries of thesedepartments in the constitution of the government, and to trust to the parchmentbarriers against the encroaching spirit of ...A mere demarcation power? on parchment of the constitutional limits of the severaldepartments is not a sufficient guard against those encroachments whichlead to a tyrannical concentration of all hands. the powers of government in thesame Publius Reviewing Ideas in Essays 47 and48

I. What is Madison's definition ofseparation of powers? (How is the related idea separation of powers in Madison's definition?) of checks and balances linked to 2. How is separation ofpowers with checks and balances connected to limited individual rights and liberties? government and protection of 3. Examine the following statements and tiecide which itemsagree or disagree with Madison's ideas. Makea checkmark next to each statement thatagrees with Madison. Refer to essays 47 and 48 to explain swers. and support your an- a Separation of powers in the Constitutionmeans that each branch of government is detached totally other branches in exercise ofpowers and duties. from the b Separation of powers in the Constitutioninvolves sharing of duties and limited government. powers in government as a means to _ c The system of checks and balances in the Constitution interferes with and as a means to limited government. undermines separation ofpowers d Madison disagrees with the ideasof Montesquieu on separation ofpowers. _ e State governments in the United States practiced the principle of separationof powers as defined by Madison. NUMBER 51: MADISON To what expedient, then, shall we finally resort, for maintaining in practice thenecessary partition of power among the several departments [branches of government]as laid down in the Constitution? The only contriving the interior structure of the answer ... is ... by so government [designing a system of checks and balances]as that its several constituent parts may, by their mutualrelations, be the means of keeping each other But the great security against in the proper places.... a gradual concentration of the several powers in thesame department consists in giving to those who administer each departmentthe necessary constitutional personal motives to resist encroachments means [checks and balances] and of the others. The provision for defensemust ... be [suited]... to the danger of attack. Ambition must be madeto counteract ambition. The interest of theman must be connected with the constitutional rights of the place. Itmay be a reflection on human nature that such devices control the abuses of government. But what should be necessary to is government itself but the greatest of allreflections on human nature? If men were angels, no government would benecessary. If angels were to govern men, neither external controls on government would be nor interna. necessary. In framing a government which is to be administeredby men over men, the great difficulty lies in this:you must first enable the government to control the oblige it to control itself. A dependence governed; and in the next place on the people is, no doubt, the primary controlon the government; but experience has taught mankind the necessityof auxiliary precautions [design of balances]. a constitutional system of checks and This policy of supplying by opposite andrival interests, the defect of better motives, whole system of human affairs, private might be traced through the as well as public. We see it particularly displayedin all the subordinate distributions of power, where the constantaim is to divide and arrange the several each may be a check on the otherthat offices in such a manner as that the private interest of every individualmay be a sentinel over the public rights. this Constitution ;.:i 1 55 35 Xr (..s..),_ These inventions of prudence cannot be less requisite in thedistribution of the supreme powers of the State.... But it is not possible to give to each department an equal powerof self-defense. In republican government, the legislative authority necessarily predominates. The remedy forthis ... is to divide the legislature into different branches [Senate and House of Representatives] and to renderthem, by different modes of election and different principles of action, as little connected with each other as[possible]. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weightof the legislative authority requires that it should be thus divided, the weakness of the executive mayrequire ... that it should be fortified. An absolute negative[veto power] on the legislature appears ... to be the natural defensewith which the executive magistrate should be armed. [But this veto power crild be misused if not checked in turn bythe legislature.] ... In asingle republic [unitary government] all the power ... issubmitted to ... a single government; and the usurpations are guarded against by a division of the governmentinto distinct and separate departments. In the compound republic of America [federal system of government],the power ... is first divided between two distinct governments [federal and state], and then the portionallotted to each subdivided among distinct and separate departments [three separate branches of government with checks andbalances]. Hence a double security arises to the rights of the people. The different governments will control eachother, at the same time that each will be controlled by Publius itself.. .. Reviewing Ideas in Essay 51 Would Madison have agreed with the statements below? Refer to essay51 (and ideas in 47, 48) to explain answers. 1. Government officials elected freely by a majority voteof the people should be trusted to have all powers of government, unseparated and unchecked. 2. The main check or control on the power of government isactive and intelligent participation of the people.

Examining Ideas on Separation of Powers Refer to the preceding excerpts from The Federalist47, 48, 51 to find ideas and information on which tobase answers to the following questions. Be prepared tosupport answers with references to specific parts ofthese essays. 1. In The Federalist 47, Madison says: "The accumulationof all powers, legislative, executive, and judiciary, inthe same hands, whether of one, a few, or many,and whether hereditary, self-appointed, or elective, mayjustly be pronounced the very definition of tyranny." What does this statement sayabout the value of separation of powers? Do you agree with this statement? Explain. 2. Refer to Articles I, II, and III of the Constitution of theUnited States. a. Find at least three examples that showhow the powers of government are separated among three distinctbranches of government. b. Find at least three examples of sharing of powers among the three branches of governmentthat show how the powers of the federal government are not completely separated. c. Does thestructure of government in Articles I, II, and III of theConstitution fit Madison's definition of separation of powers? Explain. 3. In 1952 (Youngstown Company v. Sawyer), SupremeCourt Justice Robert Jackson said: "While theConstitution diffuses power the better to secure liberty, it also contemplatesthat the practice will integrate the dispersed powers into a workable. government. It enjoins upon itsbranches separateness but interdependence, autonomybut recipiocity." Does this statement by Justice Jackson agreewith Madison's view of separation of powers expressed in The Federalist? Explain. 4. In 1789, at the first session of Congress, several memberswanted to add the following amendment to the Constitution: "The powers delegated by this constitution areappropriated to the departments to which they are respectively distributed so that the legislative department shall neverexercise the powers vested in the executive or judicial, nor the executive exercise the powers vested in the legislative orjudicial, nor the judicial exercise the powers vested in the legislative or executive departments." Thisproposed amendment to the Constitution was noteddown in Congress. Does this proposed amendment agree with ideas onseparation of powers favored by authors of The Federalist? 5. a. According to authors of The Federalist, what is the valueof separation of powers as a principle of governmentin the Constitution of the United States" (What desirable orvalued ends or goals are likely to be gainedthrough separation of powers in government? What undesirable ornegative ends or consequences are likely to be avoided through separation of powers in government?) b. Do you agreewith the position of Madison in The Federalist about the definition and value of separation of powers as a basicprinciple of government in the Constitution?

this Constitution 36 156 1 "W* Bicentennial Gazette

Recently Published BooksAbout the Constitution A list of books about the Constitutionpublished or reprinted in 1986 or 1987 follows. Adler, 11,,rtimer. WE HOLD THESE TRUTHS:UNDER- Estreicher, Samuel and Sexton, John. REDEFININGTHE STANDING THE IDEAS AND IDEALS OF THECONSTITU- SUPREME COURT'S ROLE: A THEORY OFMANAGING THE TION. Macmillan Publishing Co., 1866 ThirdAve., NY, NY 10022. 1987. $16.95. FEDERAL JUDICIAL PROCESS. Yale UniversityPress, 92 A Yale Station, New Haven, CT 06520. 1986. 224pp. $16.00. Baker, Richard A. THE UNITED STATESSENATE. Krieger Furlong, Patrick J. WE THE PEOPLE: INDIANAAND THE Publishing Co., P. 0. Box 9542, Melbourne, FL32902-9542. UNITED STATES CONSTITUTION. IndianaHistorical Society, 315 W. Ohio St., Indianapolis, IN 46202. Barbash, Fred. THE FOUNDING: A DRAMATICACCOUNT OF THE WRITING OF THE CONSTITUTION. Linden Press/Si- Furtwangler, Albert. AMERICAN SILHOUETTES: mon & Schuster, 1230 6th Ave., NY, NY 10020. 1987. 256pp. RHETORI- $18.95. CAL IDENTITIES OF THE FOUNDERS.Ynle University Press, 92 A Yale Station, New Haven, CT 06520. 1987.192 pp. $17.50. Beeman, Richard, Botein Stephen and Carter,Edward C., II. Gerberg, Mort. THE U.S. CONSTITUTION FOR BEYOND CONFEDERATION: ORIGINS OFTHE CONSTITU- EVERYONE. Perigee Books, 200 Madison Avenue, NY, NY10016. 1987. 64 TION AND AMERICAN NATIONAL IDENTITY.University of pp. $4.95. North Carolina Press, P. 0. Box 2288, ChapelHill, NC 27514. 1987. 366 pp. $25.00 (hc); $8.95 (pb). Goldwin, Robert A. and Kaufman, Art,eds. SEPARATION OF POWERS: DOES IT STILL WORK?American Enterprise In- Berger, Raoul. FEDERALISM: THE FOUNDERS'DESIGN. stitute, 4720-A Boston Way, Lanham, MD 20706.1986. 193 pp. University of Oklahoma Pres., 1005 AspAve., Norman, OK $21.50 (hc); $11.00 (pb). 73019. 1987. 224 pp. $16.95. Greene, Jack P. PERIPHERIES AND CENTER: Berns, Walter. TAKING THE CONSTITUTION CONSTITU- SERIOUSLY. TIONAL DEVELOPMENT IN THE EXTENDED Simon & Schuster, 1230 6th Ave., NY, NY10020. 1987. $19.95. POLITIES OF THE BRITISH EMPIRE AND THE UNITEDSTATES, 1606- 1788. University of Georgia Press, Athens,GA 30602. 1987. 288 Bernstein, Richard B. with Kym S. Rice. AREWE TO BE A pp. $30.00. NATION? THE MAKING OF THE CONSTITUTION.Harvard University Press, 79 Garden St., Cambridge, MA02138. 1987. $35 (hc); $14.95 (pap). Grundman, Adolph H. THE EMBATTLEDCONSTITUTION: VITAL FRAMEWORK OR CONVENIENT SYMBOL?Krieger Publishing Co., P. 0. Box 9542, Melbourne, FL32902-9542. Bickel, Alexander M. THE LEAST DANGEROUSBRANCH: 1986. THE SUPREME COURT AT THE BAR OFPOLITICS. Yale Uni- versity Press, 92 A Yale Station, New Haven,CT 06520. 1986. 320 pp. $26.00 (hc); $10.25 (pb). Kammen, Michael. A MACHINE THAT WOULDGO OF IT- SELF: THE CONSTITUTION IN AMERICANCULTURE. Knopf, 201 E. 50 St., NY, NY 10022. 1986. $29.95. Bloom, Sol. THE STORY OF THE CONSTITUTION.National Archives, Dept. 428, (NEPS), Room G-1-Cashier's Office, Kasson, John A. THE EVOLUTION OF THE Washington, DC 20408. 1986 [1937). 192pp. $8.95. CONSTITUTION JF THE UNITED STATES OF AMERICAAND HISTORY OF Choper, Jesse H, ed. THE SUPREME COURT THE MONROE DOCTRINE. Fred B. Rothman& Co., 10368 W. AND ITS JUS- Centennial Rd., Littleton, CO 80127. TICES. American Bar Association, 750 N.Lake Shore Dr., Chi- cago, IL 60611. Kraus, Laurence C. THE DEMOCRACY ISSUE:REFORM THROUGH THE CONSTITUTION. Rovi. 1987.224 pp. $19.95 Collier, Christopher and Collier, JamesLincoln. DECISION (lv:); $9.95 (pb). IN PHILADELPHIA: THE CONSTITUTIONALCONVENTION OF 1787. Random House, 201 E. 50 St.,NY, NY 10022. 1987. Levy, Leonard. THE ESTABLISHMENTCLAUSE: RELIGION AND THE FIRST AMENDMENT. MacmillanPublishing Co., Curile, David P. THE CONSTITUTIONIN THE SUPREME 1866 Third Ave., NY, NY 10022. 1986. $16.95. COURT: THE FIRST HUNDRED YEARS,1789-1888. University of Chicago Press, 11030 S. LangleyAve., Chicago, IL 60628. Levy, Leonard. ORIGINS OF THE FIFTH AMENDMENT: 1986. 506 pp. $55.00. THE RIGHT AGAINST SELF-INCRIMINATION.Macmillan Publishing Co., 1866 Third Ave., NY, NY 10022.1986. $14.95. Currie, James T. THE UNITED STATESHOUSE OF REPRE- SENTATIVES. Krieger Publishing Co., P. 0.Box 9542, Mel- bourne, FL 32902-9542. Lieberman, Jethro K. THE ENDURINGCONSTITUTION: A BICENTENNIAL PERSPECTIVE. West PublishingCompany, 50 W. Kellogg Blvd., P. 0. Box 64526, St. Paul,MN 55164-0526. Deston, John and Brandt, Nat. HOW FREE AREWE? WHAT 1987. c. 450 pp. $34.00. THE CONSTITUTION SAYS WE CAN ANDCANNOT DO. M. Evans, 216 E. 49 St., NY, NY 10017. 1986. this Constitution 157 37 Lomask, Milton. SPIRIT OF 1787: THE MAKING OF OUR PUBLIC. Rowman and Littlefield, 81 Adams Dr., Totowa, NJ CONSTITUTION. Ballantine/Fawcett, 201 E. 50 St., NY, NY 07512. 1987. 10022. 1987. Wilkinson, Charles F. AMERICAN INDIANS, TIME, AND CONSTITU- Manley, John F. and Kenneth M. Dolbeare. THE CASE THE LAW: NATIVE SOCIETIES IN A MODERN AGAINST THE CONSTITUTION: FROM THE ANTIFEDERAL- TIONAL DEMOCRACY. Yale University Press, 92 A Yale Sta- ISTS TO THE PRESENT. M. E. Sharpe, 80 Busin 3s ParkDr., tion, New Haven, CT 06520. 1986. 256 pp. $14.75. Azmonk, NY 10504. 1987. 199 pp. $25.00 (hc); $12.95 (pap). Wright, Esmond. FRANKLIN OF PHILADELPHIA. Harvard Marshall, Burke, ed. A WORKABLE GOVERNMENT? THE University Press, 79 Garden St., Cambridge, MA 02138. 1986. CONSTITUTION AFTER 200 YEARS. Norton, 500 Fifth Ave., NY, NY 10110. $18.95. REFERENCE BOOKS AND REPRINTS

Mead, Walter B. THE UNITED STATES CONSTITUTION: Barber, Sotirios A. ON WHAT THE CONSTITUTION PERSONALITIES, PRINCIPLES, AND ISSUES. University of MEANS. Johns Hopkins University Press, Baltimore, MD South Carolina Press, Columbia, SC 29208. 1987. $24.95 (he); 21218. 1986 [1983]. 240 pp. $8.95. $11.95 (pb). Benton, Wilbourn E., ed. 1787: DRAFTING THE U.S. CON- Mee, Charles L., Jr. THE GENIUS OF THE PEOPLE. Harper STITUTION. Texas A&M University Press, Drawer Cl, College & Row, 10 E. 53 St., NY, NY 10022. 1987. 348 pp. $19.95 (he). Station, TX 77843-4354. 1986. 1600 pp. $85.00.

Miller, William Lee. THE FIRST LIBERTY: RELIGION AND Bowen, Catherine Drinker. MIRACLE IN PHILADELPHIA: THE AMERICAN REPUBLIC. Knopf, 201 E. 50 St., NY, NY THE STORY OF THE CONSTITUTIONAL CONVENTION, MAY St., 10022. 1986. $24.95. TO SEPTEMBER 1787. Atlantic Monthly Press, 8 Arlington Boston, MA 02716. 1986 [19661. $18.95. Morris, Richard B. THE FORGING OF THE UNION, 1781- 1789. Harper & Row, 10 E. 53 St., NY, NY 1002". 1987. 416 pp. Farrand, Max, ed. THE RECORDS OF THE FEDERAL CON- $22.95 (he). VENTION OF 1787. Supp. vol. ed. by James Hutson. Yale Uni- versity Press, 92 A Yale Station, New Haven, CT 06520. 1987. Orth, John V. THE JUDICIAL POWER OF THE UNITED [1937] 3 vol. pap. $13.95 each. Supp. $45 (hc); $13.95 (pap). STATES: THE ELEVENTH AMENDMENT IN THE CONSTITU- TION. Oxford "'irversity Press, 200 Madison Ave., NY, NY Ferris, Robert G. and James II. Charleton. THE SIGNERS OF Monument 10016. THE CONSTITUTION. Eastern National Park and Association, 313 IT alnut St., Philadelphia, PA 19106. 1986 Peck, Robert S. and Pollock, Ralph S., eds. THE BLESSINGS [1976]. OF LIBERTY: BICENTENNIAL LECTURES AT THE NATION- AL ARCHIVES. American Bar Association, 750 N.Lake Shore Garraty, John A., ed. QUARRELS THAT HAVE SHAPED THE CONSTITUTION. Harper & Row, 10 E. 53 St., NY, NY Dr., Chicago, IL 60611. [1986] 178 pp. $4.95. 10022. 1987 [1962]. $10.95. Peters, William. A MORE PERFECT UNION. CrownPublish- ers, One Park Ave., NY, NY 10016. 1987.294 pp. $22.50 (he). Hall, Kermit, ed. UNITED STATES CONSTITUTIONAL AND LEGAL HISTORY. 20 vol. 450 articles. Garland Publishing, 136 Robinson, Donald L. "TO THE BEST OF MY ABILITY": THE Madison Ave., NY, NY 10016. Each volume priced individually. PRESIDENT AND THE CONSTITUTION. Norton, 500 Fifth Ave., NY, NY 10110. 1987. $22.50. Hyman, Ilarold and Bruchey, Stuart, eds. AMERICAN LE- GAL AND CONSTITUTIONAL HISTORY. 55 vol. (disserta- Smith, David G. THE CONVENTION AND THE CONSTITU- tions). Garland Publishing, 136 Madison Ave., NY, NY 1001( TION: THE POLITICAL IDEAS OF THE FOUNDING FA- Each volume priced individually. THERS. University Press of America, 4720 Boston Way, Lan- ham, MD 20706. 1987. 128 pp. $7.75. Kammen, Michael. THE ORIGINS OF THE AMERICAN CON- STITUTION: A DOCUMENTARY HISTORY. Penguin, 40 W.23 Sundquist, James L. CONSTITUTIONAL REFORM AND St., NY, NY 10010-5201. 1987. 407 pp. $6.95 (pb). EFFECTIVE GOVERNMENT. Brookings Institution, 1775 Mas- sachusetts Ave., Washington, DC 20036. 1986. 250 pp. $29.95 Ketcham, Ralph, ed. THE ANTI-FEDERALIST PAPERS AND (he); $9.95 (pb). TIIE CONSTITUTIONAL CONVENTION DEBATES. New American Library, 1633 Broadway, NY, NY 10019. 1986. THIS CONSTITUTION: OUR ENDURING LEGACY. Project '87 and Congressional Quarterly, Inc., Dept. 411, 1414 22nd Kurland, Philip B. and Ralph Lerner, eds. THE FOUNDERS' Street, N.W., Washington, DC 20037. 1986. 348 pp. $22.00. CONSTITUTION. 5 vol. University of Chicago Press, 11030 S. Langley Ave., Chicago, IL 60628. 1987. $300.00. Vetter li, Richard and Gary Bryner. IN SEARCH OF THERE- Levy, Leonard. THE ENCYCLOPEDIA OF THE AMERICAN

llgs Constitution 38 158 CONSTITUTION. 4 vols. Macmillan Publishing Co.,1866 Third Anderson, Joan. 1787. Harcourt Brace Jovanovich, Ave., NY, NY 10022. $270.00. 1986. 757 Third Ave., NY, NY 10017. 1987. $14.95. THE LITTLE RED, WHITE AND BLUE BOOK. World Alma- Batchelor, John E. STATES' RIGHTS. Franklin nac, 200 Park Ave., NY, NY 10166. 1987. Watts, 387 Park Avenue S., NY, NY 10016. 1986. 72pp. $9.40.

McDonald, Forrest A. A CONSTITUTIONALHISTORY OF Faber, Doris and Faber, Harold. WE THE PEOPLE: THE UNITED STATES. Krieger Publishing Co., THE P. 0. Box 9542, STORY OF THE UNITED STATES CONSTITUTION OF1787. Melbourne. FL 32902-9542. 1986 [1982]. 316pp. Scribners, 597 Fifth Ave., NY, NY 10017. $13.95.

Madison, James. NOTES OF DEBATES IN THEFEDERAL Feinberg, Barbara S. THE CONSTITUTION, YESTERDAY, CONVENTION OF 1787. Norton, 500 Fifth Ave.,NY, NY 10110. 1987 [1840]. TODAY AND TOMORROW. Scholastic, Inc., 2931 E.McCarty St., Jefferson City, Mo. 65101. 1987. 128pp.

Morris, Richard B. THE FRAMING OF THEFEDERAL CON- Fritz, Jean. SHH! WE'RE WRITING THE CONSTITUTION. STITUTION. Eastern National Park andMonument Associa- Putnam, 200 Madison Ave., NY, NY 10016. $12.95 (he); $5.95 tion, 313 Walnut St., Philadelphia, PA 19106.111 pp. 1986. $4.75. (pap). Hauptly, Denis J. A CONVENTION OF DELEGATES: THE Ostrom, Vincent. THE POLITICAL THEORY OF A COM- CREATION OF THE CONSTITUTION. Atheneum,597 Fifth POUND REPUBLIC: DESIGNING THE AMERICANEXPERI- Ave., NY, NY 10017. 1987. 160 pp. $12.95. MENT. University of Nebraska Press, 901 N. 17St., Lincoln, NE 68588. 1987 [1971]. 240 pp. Hoobler, Dorothy & Hoobler, Thomas. THE RIGHT TO PRI- VACY. Franklin Watts, 387 Park Avenue S., NY, NY 10016. Pole, J. R., ed. THE AMERICAN CONSTITUTION:FOR AND 1986. 72 pp. $9.40. AGAINST. Hill & Wang, 19 Union Square W,NY, NY 10003. 1987. $19.95. Kleeberg, Irene C. SEPARATION OF CHURCH ANDSTATE. Franklin Watts, 387 Park Avenue S., NY, NY 10016.1986. 72 pp. Preiss, Byron and Osterlund, David, eds.THE CONSTITU- $9.40. TION OF THE UNITED STATES OFAMERICA. Bantam Books, 666 Fifth Ave., NY, NY 10103. 1987. Levy, Elizabeth. IF YOU WERE THERE WHEN THEY SIGNED THE CONSTITUTION. Scholastic, 730 Broadway,NY, Rodell, Fred. 50 MEN: THE STORY OFTHE CONSTITU- NY 10003. $2.50 (pap). TION. Stackpole Books, Box 1831, Cameron& Kelker Sts., Harrisburg, PA 17105. 1986 [1937]. Lindop, Edmund. BIitfH OF THE CONSTITUTION.Enslow, Box 777, Hillside, NJ 07205. Rossiter, Clinton. 1787: THE GRAND CONVENTION.Norton, 500 Fifth Ave., NY, NY 10110. 1987 [1966]. Mabie, Margot. THE CONSTITUTION: REFLECTIONOF A CHANGING NATION. Holt, Rinehart & Winston, 521 FifthAve., Stansbury, .Arthur J. ELEMENTARY CATECHISMOF THE NY, NY 10175. 1987. $12.95. CONSTITUTION OF THE UNITED STATESFOR USE OF SCHOOLS. American Heritage Press, 4225Croydon, Camarillo McGee, Dorothy. FRAMERS OF THE CONSTITUTION. CA 93010. 1987 [1828]. $4.48. Dodd, Mead, 79 Madison Ave., NY, NY 10016. 1987[1968]. 416 pp. $13.95. Van Doren, Carl. THE GREAT REHEARSAL:THE STORY OF THE MAKING AND RATIFYING OFTHE CONSTITUTION Meltzer, Milton. AMERICAN REVOLUTIONARIES: OF THE UNITED STATES. Penguin, 40 A HIS- W. 23 St., NY, NY TORY IN THEIR OWN WORDS, 1750-1800. ThomasY. Crowell, 10010-5201. 1986. $6.95. 10 E. 53 St., NY, NY 10022. 1987. $12.95.

Yates, Robert. SECRET PROCEEDINGS ANDDEBATES OF Sgroi, Peter. THIS CONSTITUTION. Franklin THE CONVENTION ASSEMBLED AT Watts, 387 PHILADELPHIA IN THE Park Avenue S., NY, NY 10016. 1986. 72pp. $9.40. YEAR 1787 FOR THE PURPOSE OF FORMINGTHE CONSTI- TUTION OF THE UNITED STATES OFAMERICA. 1987 [1921]. Spier, Peter, WE THE PEOPLE: THE STORY OF Introduction by John Charles Armor. THE CON- Birmingham Public Li- STITUTION. Doubleday, 245 Park Ave., NY, NY 10167.1987. brary, 2100 Park Place, Birmingham,AL 35203. 308 pp. $37.50 (he); $17.00 (pb). Williams, Selma R. FIFTY -FIVE FATHERS. Dodd,Mead, 79 Madison Ave., NY, NY 10016. 1987 11970]. 192pp. $11.95 (he); CHILDREN'S /tJOKS $4.95 (pb). Agel, Jerome. YOUR CONSTITUTION-"A DEMOCRACY, IF Woods, Geraldine II. THE RIGHT TO BEARARMS. Franklin WE CAN KEEP IT." Simon & Schuster, 12306th Ave., NY, NY Watts, 387 Park Avenue S., NY, NY 10016. 1986. 10020. 1987. 72 pp. $9.40. this Constitution 159 39 Educational Resources This listing includes selected print educational resources. A listing of media resources will appear in the Winter 1987 issue of this Constitution.

"A CELEBRATION OF CITIZENSHIP." Packet of materials (el- let"The Intellectual Heritage of the Constitutional Era" by emen ary, middle, high school) to support a day-long"teach- Jack P. Greene, a modern newspaper account of April 2, 1987, in" on September 16, 1987. Available from ANPA, Box 17407 a poster of the 55 delegates to the Convention, and a setof 55 Dulles Airport, Washington, DC 20041. $3.00. delegate cards with portraits and biographical information. Teacher's packet with all items and additional material, $19.50. CONSTITUTION, a simulation of a convention called to revise All items available separately. Eastern National Parks and the U.S. Constitution, by Charles L. Kennedy. Includes 35 one- Monuments Bookstore, 313 Walnut Street, Philadelphia, PA page student guides and a 29-page teacher guide.Interact, P. 0. 19106; (800) 821-2903. Box 997E, Lakeside, CA 92040. $16.00. THE NEW FEDERALIST PAPERS. A series of newspaper col- THE CONSTITUTION. Monthly magazine. National Center for umns written by scholars and political figures on theConstitu- Constitutional Studies, P. 0. Box 37110, Washington, DC 20013;tion. Public Research Syndicated, 4650 Arrow Highway, Suite (202) 371-0008. D-7, Montclair, CA 91763; (714) 621-5831.

THE CONSTITUTION: EVOLUTILN OF A GOVERNMENT. In- RELIGIOUS FREEDOM IN AMERICA: A TEACHER'S GUIDE. cludes 34 facsimile documents, teacher's guide. Education Di- Americans United Research Foundation, 900 Silver Spring Ave- vision, National Archives and Records Service, Washington, nue, Silver Spring, MD 20910; (301) 5881282. 108 pp.$2.00 for DC 20408; (202) 523-3347. Order from SIRS, Inc., Boca Raton, postage and handling. FL 33427. $35.00. SHAPING AMERICAN DEMOCRACY: U.S. SUPREME COURT THE ECONOMIC WORLD OF 1787 AND THE CONSTITU- DECISIONS. Ready reference to 54 Supreme Court decisions TION, by Albert Alexander and Edward C. Prehn. 18 pp. New for teachers. Keyed to high school textbooks. Glossary. Law, York City Council on Economic Education, Inc., 150 Nassau Youth and Citizenship Program, New York State Bar Associa- Street, Room 1625, New York, NY 10038. tion, One Elk Street, Albany, NY 12207. 89 pp. $8.95.

HISTORIC DOCUMENTS and other memorabilia. HERITAGE SOLDIER-STATESMEN OF THE CONSTITUTION. Twenty-two ENTERPRISES, 325 N. Thirteenth St., Philadelphia, PA 19107- biographical pamphlets on the signers of the Constitution who Center of 1118; (215) 627-4340. were also Revolutionary War veterans. U.S. Army Military History, Office of the Secretary of the Army, Washing- THE JEFFERSON MEETING ON THE CONSTITUTION: THE ton, DC 20310 - 0101.8 pp. CONSTITUTION IN THE CLASSROOM, A GUIDE FOR TEACHERS and THE JEFFERSON MEETING ON THE CON- TEACHING ABOUT AMERICAN FEDERAL DEMOCRACY, ed- STITUTION: THE CONSTITUTION IN THE COMMUNITY, A ited by Stephen L. Schecter. Center for the Study of Federal- GUIDE FOR COMMUNITIES. Step-by-step instructions for ism. Gladfelter Hall, 10th floor, Temple University, Philadel- holding Jefferson Meetings and a guide to resources. Six spe- phia, PA 19122. cific discussion guides are also available. $12 for all six discussion guides and either teacher or community guide. Jefferson TEACHING THE CONSTITUTION. 16-page catalog of educational materials (print, computer, video). Social Studies School ., 152918th St. NW, Washington, DC 20036; (202) Foundati, Service, 10200 Jefferson Blvd., Dept. TCP, P.O. Box 802, Culver 234.3688. City, CA 90232-0802; (800) 421-4246. LAW IN UNITED STATES HISTORY: A TEACHER RESOURCE MANUAL. New Mexico Law-Related Education Project. In- TEACHING TODAY'S CONSTITUTION. Ten lessons that apply cludes 37 lessons for junior and senior high schools. Order the Constitution to contemporary problems. Includes nr.nd- from the Social Science Education Consortium, 855 Broadway,outs. Grades 7-12. 114 pp. Written by Margaret E Fisher; edit- Boulder, CO 80302; (303) 492-8154. ed by the National Institute for Citizen Education in the Law. $17.95. Social Studies School Service, 10200 Jefferson Blvd., LAW STUDIES, vol. 11, no. 2, Fall 1986. Special issue on the P.O. Box 802, Culver City, CA 90232; (800)421-4246. Constitution. New York State Bar Association. Bureau of So- cial Studies Education. New York State Education Department,UNLOCKING THE CONSTITUTION AND THE DECLARATION Albany, NY 12234. OF INDEPENDENCE by Robert M. Goldberg and Richard M. Haynes. Globe Book Company, 50 West 23rd Street, NY, NY THE MINI PAGE by Betty Debnam. A weekly four-page tabloid 10010. Twenty-nine lessons divided into six units, plus a glos- newspaper supplement for children 6-12, A 20-part monthly sary. 140 pp. series focusing on the Constitution began in March 1986, and a 40-part mini series began in September 1986 of short articles WE THE PEOPLE ... DO ORDAIN AND ESTABLISH THIS on key constitutional people and events.For information, CONSTITUTION. ... Secondary level student text: 31 lessons, write Andrews, McMeel & Parker, P. 0. Box 419150, Kansas documents, glossary, biographical notes. Sampler available. City, MO 64141. Center for Civic Education, 5146 Doulas Fir Road, Calabasas, CA 91302; (818) 340.9320. MIRACLE AT PHILADELPHIA EXHIBITION AND EDUCA- TIONAL MATERIALS. Friends of Independence National His- torical Park. Includes a map of Philadelphia in 1787, a book-

this Constitution 40 160 Exemplary Teaching Units PUBLICATIONS FROMTHE SOCIAL STUDIES DEVELOPMENTCENTER INSTRUCTIONAL MODULESON THE CONSTITUTION- (available from SSDC, Suite120, Indiana University, AL PROCESS consistsof five highly useful 2805 E. Tenth St.,Bloomington, IN 47405; (812) teaching 3838) 335- units for elementary andsecondary students with tion component allowing an ac- students to "sign" theConstitu- tion. Available fromti a National Conference EDUCATION ON THECONSTITUTION IN SECONDARY tians and Jews, 71 of Chris- Fifth Ave., Suite 1100, SCHOOLS: TEACHINGSTRATEGIES AND MATERIALS 10003. New York, NY FOR THE BICENTENNIALAND BEYOND by John J. Patrick, Richard C. Remyand Mary Jane Turner. In- ABOUT OUR CONSTITUTIONis a unit produced cludes lessons, bibliography,and a guide to National Education by the resources Association in cooperation and materials. $12.00(includes postage). 91pp. National Council for with the the Social Studies.Available from the NEA, 1201 16thSt., N.W., Washington, LESSONS ON THE 3290. DC 20036- FEDERALIST PAPERS: SUPPLE- MENTS TO HIGH SCHOOLCOURSES IN AMERICAN HISTORY, GOVERNMENT,AND CIVICS by John Patrick THE CONSTITUTIONAND EARLY REPUBLIC and Clair Keller. Includesten lessons with materials for teacher's guide and is a teachers and students, resource handbook designedfor 5th a selection of Federalistessays, grade social studiesclasses. Available from and a selected bibliography.$12.00 (includes postage). Fairfax County Public Ann Soldz, 91 pp. Schools, Lacey InstructionalCen- ter, 3705 Crest Drive,Annandale, VA 22003-1799.

LEARNING BASIC SKILLSWITH THE U.S. CONSTITU- TION is a 32-page skillbook which usesa constitutional theme to practicereading, writing, spelling, AMERICAN BARASSOCIATION chart reading. Available and map/ PUBLICATIONS from Weekly Reader,Field Pub- lications, 245 Long HillRoad, Middletown, CT (available from the Commissionon Public Understand- 06457. ing About the Law, American Bar Association,750 North Lake Shore Dr., Chicago, 5726) IL 60611. (312) 988-

MATERIALS FROMPROJECT '87 HELPING CHILDRENUNDERSTAND THE UNITED STATES CONSTITUTION,Minna S. Novick. A handbook of activities and BICENTENNIAL ESSAYS ONTHE CONSTITUTION, resources for teaching childrenages 5 Herman Belz, editor. Eleven through 12. Special Committeeon Youth Education for pamphlets on the history of Citizenship. 15 pp. $2.00. the Constitution. AmericanHistorical Association, 400 A Street, SE; Washington, DC 20003. (202) 544-2424. $6.00 PASSPORT TO LEGAL (includes postage). 45-90pp. each. UNDERSTANDING. Newsletter on public educationprograms and materials. Published twice a year. Free. THE BLESSINGS OFLIBERTY: A POSTER EXHIBIT. Twelve color posters whichtell the story of the of the Constitution. creation SPEAKING AND WRITINGTRUTH: COMMUNITY FO- Available unmountedor mounted on RUMS ON THE FIRST three free-standing cardboard AMENDMENT. Six scriptson kiosks. Project '87, 1527 First Amendment topics.$4.95. New Hampshire Avenue,N.W., Washington, DC 20036; (202) 483-2512. $70 THE U.S. CONSTITUTION (unmounted); $110 (mounted).Prices BICENTENNIAL: A WE THE include postage. PEOPLE RESOURCE BOOK, Robert P.Doyle and Susan A. Burk (with the American LESSONS ON THE CONSTITUTION: Library Association). In- SUPPLEMENTS cludes activities, TO HIGH SCHOOL COURSES resource lists, publicity advice, book IN AMERICAN HISTORY, lists, audiovisual lists, playlists, a quiz, a chronology GOVERNMENT AND CIVICS and by John Patrick and Rich- a selection of quotes. 47pp. $8.50 (includes 3 posters). ard Remy for Project '87.Contains sixty lessons,text of Posters available separately the Constitution, selected for $3.00 each from ALA essays from The Federalist. Graphics, 50 E. Huron St.,Chicago, IL 60611. Social Science EducationConsortium, 855 Broadway, Boulder, CO 80302; (303)492.8154. $19.50 (includespost- age). 302 pp. UPDATE ON LAW-RELATEDEDUCATION, published three times a year by theABA Special Committeeon this Constitution, Youth Education forCitizenship. Includes articles,Su- quarterly magazine. Essaysand re- preme Court decisions, classroom sources for the Bicentennial. Project'87, 1527 New strategies, practical law. $10.50 per year. SpecialBicentennial Packet: $16.50 Hampshire Avenue, N.W.,Washington, DC 20026. Sub- (includes handling). scription price, 1987-88: $15.00. WE THE PEOPLE: A THIS CONSTITUTION: HANDBOOK ON COMMUNITYFO- OUR ENDURING LEGACY,intro- RUMS ON THE CONSTITUTION.Contains community duction by James MacGregor forum scripts and Bums. A collection of background legal memoranda.$10.00. twenty-one essays originallypublished inthis Constitu- tion,published by Project '87. WE THE PEOPLE: Congressional Quarterly, PROGRAM PLANNING GUIDEFOR Inc., Dept. 4H, 1414 22ndStreet, N.W., Washington, DC COMMUNITY FORUMS ON 20037. $22.00 (includes THE CONSTITUTION,Lu- postage). 348 pp. cinda J. Peach, editor.Includes bibliographies of books and films. $5.00. 142pp. 1 this Constitution .: 161 ,I k i S. 41 EXHIBITS

at the "We The People: Creating aNew Nation, "Criticizing the Constitution" Exhibit 1765-1820" Opens in Chicago Rosenbach Museum & Library From September 15 toNovember 24, 1987, "Criticizing the Constitution" will trace the debate in the statesthat followed the adoption of the Constitutionin Philadelphia. Among the items included will be GeorgeWashington's copy of James Monroe's Observations on the Constitution, afirst edition of The Federalist, and two letters frontJames Madison at the end of his life reminiscing about theConstitutional Convention. For further information, write TheRosenbach Museum & Li- brary, 2010 DeLancey Place, Philadelphia,PA 19103; (215) 732- 1 RO.

"Soldier Statesmen of theConstitution" Exhibit at the Army TransportationMuseum

People" explores the The Bicenteis.tial exhibit at the U.S. ArmyTransportation Opening September 12, 1987, "We The emphasize the impor- lives of the founding fathers, as well as women,chiidren, Museum, Fort Eustis, Virginia, will artisans; it will be tance of those individuals withmilitary backgrounds who African Americans, Native Americans, and will include portraits, the only major permanent exhibition inthe Midwest dedicated signed the Constitution. The exhibit documents are showcased: a flags, replicas and reproductions. For moreinformation, write to early American history. Five Museum, Fort Eustis, VA broadside of the Declaration of Independence;the first news- Director, U.S. Army Transportation ?aper printing of the Constitution;first printings of the Bill of 23604-5000. Rights, the Northwest Ordinance and theTreaty of Greenville. Other elements include artifacts, costumes,engravings, maps, 1780s" pamphlets, newspapers, letters and othermanuscripts, and ex- "Life in Delaware in the amples of eighteenth-century craftsmanship.For further infor- Celebrates Ratification mation, contact Pat Manthei, ChicagoHistorical Society, Clark Street at North Avenue, Chicago, IL60614; (312) 642-4600, ext. Anew exhibit opened in March1987 at the Old Town Hall 36. Museum in Wilmington, recreating life inDelaware communities in the eighteenth century. Clothing,farm tools, furniture, "The American Experiment: pots and pans, medical instruments, andother items set in Living with the Constitution" room displays show a farmer inSussex County, a miller in Wilmington and a wealthy family in Kent County.A videotape Exhibit at the NationalArchives on ratification concludes theexhibit. The exhibit will close in January. For further information, contact theHistorical Socie- ty of Delaware, 505 Market StreetMall, Wilmington, DE 19301; ire American Experiment:Living with the Constitution" opened on April 10 at the Nation !Archives in Washing-(302) 655-7161. ton, D.C. The exhibit focuses onthe ways in which the Consti- tution has been challenged andinterpreted over the past 200 Smithsonian Exhibits to MarkBicentennial years. Three contemporaryconstitutional issues are highlight- What are the powers of the ed: Who has the right to vote? iiAmore Perfect Union: JapaneseAmericans and the Unit- Commander-in Chief? What are the rolesof the state and fed- ed States Constitution" will openOctober 1, 1987 at the eral governments in schooldesegregation? The exhibit will in- exhibition will ex- drawings, artifacts and National Museum of American History. The clude 247 documents, photographs, amine the constitutional guaranteeof citizens' rights juxta- three audiovisual viewing stations.Three featured documents of thousands of Congress proposing the Fourteenthposed with the internment and relocation are the Joint Resolution of Americans of Japanese ancestry duringWorld War II. A con- Amendment, the 1965 Voting Rights Act, andthe War Powers troversial topic since the Rooseveltadministration's decision, Act of 1973. Tne final section ofthe exhibit offers a sampling constitutional question be- amendments to the Constitu- relocation continues to be a vital of the more than five thousand cause of pending litigation inU.S. courts. The exhibit will de- tion proposed to Congress but notadopted. Video selections leading to the the internment of Japa- scribe the political and military circumstances include a 1943 official explanation for relocation orders; offer personal experiencesand reactions of nese Americans, theKennedy-Wallace confrontation in 1963, the legal ramifica- in 1965. The video selections relocated Japanese Americans, and detail and a Johnson press conference tions of relocation and its impact onjudicial attitudes toward and photographs of some items areavailable from the Public other racial minorities. Affairs Office, NARS, Washington. f.C.20408; (202) 523-3099.

this Constitution 42 1G2 Orpnizations and Institutions

In November 1987, "The Blessingsof Liberty," also at the Merrill Lynch Underwrites History Museum, will explore howthe Constitution has been Two National put into practice by means of Americanpolitical institutions Bicentennial Programs and through the politicalprocess. The exhibition will focus on formal government, theway in v,hich the Constitution has In 1987 and 1988, Merrill Lynch will been changed and broadenedby amendments and legislation support two major pro- to include youth, women and minorities, grams. "We the People," a four-part publictelevision pro- and on informal prac-gram produced in association with tices, including the developmentof political parties and all the American Bar Associa- tion and KQED, a publicbroadcasting station in San that followed, from politicalcampaigns and nominatingcon- venti.,sis to TV debates. Francisco, California, will air inSeptember 1987. Hosted by The National Portrait Gallery will Peter Jennings, the hour-longsegments will examine current mount three exhibits. events and constitutional issues. A From October 9, 1987 to January10, 1988, "American Colonial companion volume will be Portraits: 1700 to 1776" will be available, and a six-week, 30-partseries for National Public Ra- devoted to colonial portraiture,dio will air simultaneously with the first such exhibit since the1930s. In March 1989, the Gal- the television series. In 1988, lery will open "The First Federal Merrill Lynch will sponsor "ARatification Celebration," events Congress," an exhibition to honor state government commemorating the Bicentenary of representatives and officials and the First Congress. Finally,education projects to promote in October 1989, "Portraits ofDistinguished American Jurists" citizen understanding of the will feature a selection of Constitution. The first eventwas a ball on December 7, 1987 portraits of members of the court to honor the 200th anniversary of during the last two hundredyears. Delaware's ratification. For For further information, contact further information, contactJames Flynn, Merrill Lynch, One Susan Foster at (202) 357- Liberty Plaza, 165 Broadway, 3129 for the Museum ofAmerican History and Sandra Westin NY, NY 10080; (212) 637-5169. at (202) 357-2866 for the PortraitGallery. USS ConstitutionCelebrates Bicentennial

Constitution Day The USS Constitution, launchedin 1797 and the oldestcom- September 17, 1987 missioned ship in the Navy, willplay P focal role in Bos- Philadelphia, Pennsylvania ton's celebration of the U.S.Constitution's Bicentennial, Sep- tember 17-20. During the weekend,the vessel will make two harbor cruises, and will host severalfunctions. "Old Ironsides," as the ship isknown, has a commanding officer at all times and its ensignis raised and lowered with the sun. Its Navy crew, in 19th-century dress,greets more than 600,000 visitors annually. Itis open to the publicevery day from 9:30 a.m. to 3:50 p.m.

9 a.m. to noon: GrandFederal Processiona reenactment of the massive parade in1788 to celebrate the ratification of the Constitutionby 10 statesfollowed bya Constitution Day Parade of thepeople, produced by Ra- dio City Music HailProductions. Noon: Ceremony tocommemorate Constitution Day The President of the United States The Chief Justice of theUnited States, retired The Speaker of the House ofRepresentatives The President Pro Temporeof the Senate State officials Noon to Midnight: We thePeople Picnics Entertainment 4 p.m.: Bell ringing in Philadelphia,nationally, and in 140 other countries tohonor the signing of the Constitu- tion. 9 p.m. to 11 p.m.: Live,nationally-televised two-hour tribute to the Constitution fromConvention Hall in adelphia.

U.S.S. Constitution. this Jonstilution 163 43 Navy?" Maryland to Display Flag3hip "Constitution Quest: Why a In celebration of the Bicentennialof the Constitution, the commemoration of the 200th birthday ofthe Constitution, Gaiety of the Smith- of the Maryland Fed- Navy Museum and the National Portrait Inthe state of Maryland, with the support sonian Institution have developed a joint programexploring eralist Foundation, will build and display areplica of the Mary constitutional question in built for the 1788 parade to the issue of establishing a navy as a land Federalist, a fifteen-foot ship specially-develcped educational Constitution. Accompa- the 18th century. Students use celebrate Maryland's ratification of the materials in the classroom and then visitthe Navy Museum nied by educational exhibits andmaterials, the ship will tour information, write state. For further infor- and the National Portrait Gallery. For more for four years around the nation and Naval Historical Center, WashingtonNavy Yard, Washington, mation, write to the Maryland Officefor the Bicentennial of DC 20374-0571; (202) 433-4882. the U.S. Constitution, 350 RoweBoulevard, Annapolis, MD 21401; (301) 269-3914. Great Decisions '87 Focuses on the Constitution

66Great Decisions," the largestnonpartisan foreign policy education program in the United States isfocusing on the Constitution during 1987. The programis vonsored by the Foreign Policy Association. The 950,000participants will r a 96-page briefing bookexamining foreign policy issues with special reference to constitutionalprinciples. For more infor- +nation, contact World Affairs Center,Inc., 1380 Asylun, nue (rear), Hartford, Conn.06105; (202) 236.5277.

State Historical Society of IowaProduces Goldfinchfor Children g-12

Goldfinch, a quarterly magazine forchildren in grades 4 to 7, has published a special issue,"Constitutional Issues and Iowa." $1.50 from State HistoricalSociety of Iowa, 402 Iowa Avenue, Iowa City, IA 52240; (319)338.5471. . woo".

the parade to celebrate Maryland's Federalist,a "ship of state" produ::d in 1788 for THE AMERICAN PUBLIC'SKNOWLEDGE Federalist Pundation, Inc. ratification of the Constitution. The Maryland OF THE U.S. CONSTITUTION:A NATIC,NAL SURVEY OF PUBLIC AWARENESS AND PERSONAL OPINION Bicentennial Leadership Project Hosts Workshops

Three e.gional Bicentennial PlanningWorkshops provided training and information to communityand school leaders In February 1987, theHearst Corporation released a in Philadelphia, Los Angeles andNew Orleans in 1986 and survey based on more than1,000 telephone interviews 1987. This first major activity of thetwo-year Bicentennial of American adults, exploringunderstanding of the Unit- Leadership Project was designed tobring the commemoration e,: States Constitution. Fifty-ninepercent of those sur- of the Bicentennial to communitiesthroughout the nation. In could not identify the Bill of Rights;49 percent January, Bicentennial Leadership Awardswent to the Los An- d that the president can suspend theConstitution. geles Unified School District, theUniversity of California at r, 81 percent did knowthat it is unconstitutional Constitutional Rights Foundation, Los Angeles Extension, the tr.se religious requirements oncandidate for elec. the Claremont University CenterGraduate S...hnol, the Junior e. For further information,contact Jan'. F. Statesmen Foundation, the Co of SanDiego, Susan Burk of Director of Corporate Communications,The the ABA and Col. and Mrs. WilliamLambert of Nevada City, rie_ast Corporation, 959 EighthAvenue, NY, NY 10019: for $15. Send checks made CA. Planning packets are available (212) 262-3363. out to the Council for the Advancementof Citizenship, One Dupont Circle NW, Suite 520, Washington,DC 20036.

164 this Constitution 14 Scholarly Conferences

Constitution Hotline 1-800-327-7683 THE LAW OF TREASON AND Minnesota, "A RepublicIf THE CONSTITUTIONSEMI- You (1-800-3BPROUD) Can Keep It"; Daniel Walker NAR FOR HIGH SCHOOL Howe, UCLA, "The Public TEACHERS OF AMERICAN Psy- HIS- chology of The 2ederalist"; An "80r number, sponsored bythe Historical Society TORY AND/OR SOCIAL SCI- Lance of Pennsylvania andAT&T offers a different ENCE Banning, University ofKentucky/ each week about the message National Humanities Center, adoption of the Constitution.The College Avenue Campusof "Further Thoughts toll-free, nation-wide, Rutgers University on 'Virtue' in twenty-four hour hotline alsoin- cludes information about New Brunswick., NJ 08903 Revolutionary Thinking"; Russell upcoming Bicentennialevents. L. Hanson, Universityof Indiana, For more information,write: The Historical Sponsored by the NewJersey Society of Committee for the Humanities "Commons and Commonwealth: Pennsylvania, 1300 LocustStreet, Philadelphia, PA Democratic Republicanism 19107. in cooperation withRutgers as the University New American Hybrid." Forfur- June 29 - July 23, 1987 ther information, contact:Patricia Bill Moyers toHost Television C. Kelly, Folger Institute,201 E. Series Seminar Director. ThomasP. Capitol St. SE, Washington,DC for Students Slaughter, Rutgers University 20003. For further informationcontact: Ms. Miriam L. Murphy Bill Moyers will nost Director, New Jersey SYMPOSIUM ON INTERPRET- a unique film/video seriesTheU.S. Committee ING FEDERAL NEW YORK Constitutionspecially designed for the Humanities for use in junior andsen- 73 Easton Avenue Fraunces Tavern Museum ior high school classes.The series of six 30-minute 54 Pearl Street will be beamed by programs New Brunswick, NJ 08903 satellite and shown tostudents throughout New Yo,-k, NY 10004-2429 the country. (201) 932-7726/7120 May 1, 1987 In the documentaryportion of each program, Principal speakers: Richard Moyers traces THE CONSTITUTION:RELIGION the history of one of sixconstitutional themes: "Limited AND CULTURE A BICENTENNI- Leiner, University of Wisconsin- ernment and the Rule of Gov- Madison, "the Confederation, Law," "Fec eralism,""Separation of AL INQUIRY the Powers with Checks Loyola College in Maryland Constitution, and the Bill of and Balances,' "Freedomof Expression," Rights: New York's Critical "Equal Protection ofthe Laws," and "The Baltimore, MD 21210 Role"; Economy.' Dramatic episodes Constitution and theSeptember 18-19, 1987 Paul A. Gibe, University ofOkla- involving young people lendrel- homa, "Mechanics in New York evance and immediacy to Principal speakers: Fr. RobertF. constitutional issuesas they touch Drinan Si., Georgetown City in the Era of the Constitu- students' lives. Universi- tion"; Deborah Deperdahl Wa- The U.S. ty, "Church-State Relat;onsin Constitution, designed foryears of use in Ameri- ters, Museum of the City of New can history, civics, and America's Third Century";David government classes, will be Little, University of Virginia, York, "The Fine and Decorative fall 1987. The series available in Arts of Federal New York"; David was developed by the Agency "Conscience, Theology and for Instruc- the Shields, The Citadel, "Literary tional Technology, Project'87, and a consortiumof 29 state First Amendment"; Stanley education agencies. A printed Hauerwas, Duke University, Culture and Dining Clubs in Fed- teacher's guide and relatedstu- eral New York." For further dent materials help teachers "Freedom of Religion: A Subtle in- prepare for the programs andin- formation, call (212) 425-1778. volve students in discussion. Temptation." For furtherinforma- To previewThe U.S. Constitution tion, contact Viga Guroianor and to receive a list of Bernard Nachbahr at Loyola. CONFERENCE ON RATIFYING states whose schoolsare eligible for special THE CONSTITUTION: prices, call AIT toll free consortium IDEAS at (800) 457-4509. AND INTERESTS IN THESEV- CONCEPTUAL CHANGE AND ERAL AMERICAN STATES THE CONSTITUTIONOF THE UNITED STATES Research Triangle Park North Carolina 27709 Folger Institute Center forthe May 22-23, 1987 History of British Political Sponsored by the National Thought Conferer ce forthe Hu- Study of Political Thought manities Center a "d theNorth April 16-18, 1987 Carolina Commissionon the Bi- .4 centennial of the U.S Constitu- Principal speakers: Gerald tion Stourzh, University of Vienna, Principal speakers.Gaspare Sala- "Constitution: Changing Mean- dino, George Graham, Sara ings of the Term fromthe early Shumer, Edward Cashin,Donald 17th century to the late18th cen- Lutz, Michael Gillespie, tury"; James Farr, University Peter of Ong, Robert Weir, Jean Wisconsin-Madison, "Conceptual Yar- brough, Lance Banning,Stephen Change and PoliticalInnovation: the View from 1787"; Schecter, Michael Lienesch,and Peter S. John Kaminski. Onuf, Worcester PolytechnicIn- For further information,contact: stitute, "Changing Meaningsof Mona Frederick the Word 'State' in the Making of National Humanities Center the Constitution"; GarryWills, 7 Alexander Drive Northwestern University,"The Research Triangle Park,North Changing Meaning ofSovereign- ty"; Terence Ball, Carolina 27709 University of (919) 549.0661 this Constitution

165 45 Steven Diner, George Mason Uni- Principal speakers: Jeane J. Kirk- Rutgers University; Ronald K. L. patrick, Edmund S. Muskie, How- ON THE THEORY AND PRAC- versity. Topics: "American Socie- Collins, University of Puget ard K. Smith. For further infor- TICE OF CONSTITUTIONAL ty and ConstitutionalChange"; GOVERNMENT: A BICENTENNI- Sound; David Burnham, Washing- mation, contact Kristen Phillips, ton, D.0 Daniel J. Elazar, Tem- "The Invention of the Presiden- AL COLLOQUIUM (409) 845-7627. ple University. Topics: The Role cy"; "Afro-American Perspectives Paris, France For further of State Constitutional Law inthe on the Constitution." September 17-19,1987 information, call (202) 357-3049. WOMEN AND THE CONSTITU- Sponsored by the Ante-, watt En- American Federal System; The TION: A BICENTENNIAL PER- terprise Institute for Public Poli- United States Constitution as an SPECTIVE Incomplete Document; State Con- A CONSTIT1;TIONAL BICEN- cy Research, Washington,D.C. TENNIAL SUMMER Jimmy Carter Library and the University of Paris X, stitutions in Historical Perspec- Carter Center, Emory University tive; The Emerging Agenda in University of Maryland Nanterre, France College Park, MD 20742 Georgia State University Principal speakers: Hilail Gildin, State Constitutional Law; Feder- Atlanta, GA alism and the Protection of Indi- July 22-27,1987 Queens College, City University July 28-29,1987 February 10-12,1988 of New York; Michel Troper,Uni- vidual Rights: A Symposium; Principal speakers: Justice San- State Constitutional Law in Com- Principal speakers: Carl F. Row- versity of Paris X; Terence Mar- an, journalist, "Equality as 1Con- dra Day O'Connor, Barbara Jor- parative Perspective; State-Local shall, University of Paris X; Jeen- stitutional Concept"; Arthur M. dan, Geraldine Ferraro. For fur- Relations in State Constitutional Luc Parodi, Fondation Nationale Schlesinger, Jr., City University ofther information, contact Dayle des Sciences Politiques; James Law; Economic Rights Under Powell, Carter Center, Emory State Constitutions; Religion Un- New York, "After the Imperial Ceaser, University of Virginia; Presidency"; Archibald Cox, Har- University, Atlanta, GA 30322. de: State Constitutions; Separa- Olivier Duhamel, University of vard Law School, "The Role of Paris X, Julien Feydy, University tk,i of Powers Under State Con- INTERNATIONAL CONFER- stitutions; Direct Democracy and the Supreme Court: Judicial Ac- of Paris (Sorbonne); Robert A. tivism or Self-Restraint"; Sen. ENCE ON THE CONSTITUTION- Gol:Jwin, American Enterprise In- State Constitutional Law; State AL BASES OF POLITICAL AND Constitutions and the Problem of Charles McC. Mathias, Jr., "Origi- stitute for Public Policy Re- nal Intent and the Constitution." SOCIAL CHANGE IN THE UNIT- search, Washington, D.C.; Antoine Privacy. ED STATES OF AMERICA For more information, contact: For further information, contact Lyon-Caen, University of Paris X; Whitman H. Ridgway, Depart- The Hebrew University of Jeru- Walter Berns, Georgetown Uni- Ellis Katz salem Program Coordinator ment of History, University of versity. Maryland; (301) 454-2843. Jerusalem, Israel For additional information, con- Center for the Study of Federal- May 18-20,1987 tact: Robert A. Goldwin ism For more information, contact: Temple University 025-25 THE CONSTITUTION AND FOR- American Enterprise Institt.te EIGN POLICY: A QUESTION OF Professor ShIcmo Slonim Philadelphia, PA 19122 Chairman, Bicentennial Commit- 1150 17th Street, NAV. CONTROL Washington, D.C. 20036 tee CONSTITUTION 200 MSC Wiley Lecture Series (292)862-5912 Texas A&M University Hebrew University Ca-1 Vinson Institute of Govern- Jerusalem, Israel ment College Station, TX 77844.9081 CONFERENCE ON STATE CON- April 1,1987 STITUTIONAL LAW IN THE University of Georgia THIRD CENTURY OF AMERI- Athens, Georgia 30602 CAN FEDERALISM: NEW DE- 1987 Public Assemblies: PERIODICALS VELOPMENTS AND POSSIBILI- March 23: The Role of the Su- SPECIAL ISSUES OF preme Court in our Constitution- TIES September 8, 1986, "How the U.S.Constitu- al Government," Tuscaloosa. Ala- Scholastic Update, Hotel Hershey tion Shapes Your World," (730Broadway, NY, NY 10003-9538; Broad & Locust Streets bama Philadelphia, PA April 6: "Sovereign Nation or $3.00) Sovereign States? Federalism in Canadian Parliamentary Review,Spring 1987, "Canada and March 15-17,1987 Constitution," (Box 950, Con- Sponsored by the Center for the the Civil War Era and Today," the Bicentennial of the American 0A6). Study of Federalism, Temple Charleston, South Carolina federation Building, Ottawa, K1A University, in cooperation with May 19: "Rule of Law or Rule of the American Bar Association, Men? The Problem of Separation the Philadelphia Bar Association of Powers," Atlanta, Georgia and tl.e United States Advisory For more information, call (404) Commission on Intergovernmen- 542-2736. tal Relations. Principal speakers: A. E. Dick TEACHING THE CONSTITU- Ho ;yard, University of Virginia; TION A symposium for school teachers Donald S. Lutz, University of Houston; Lawrence Friedman, and administrators Stanfor,1 University; Hon. Stanley Smithsonian Institution Mask, Supreme Court of Califor- Office of Elementaty and Sec- nia; Earl Maltz, Rutgers Universi- ondary Education Washington, DC 20560 ty; Burt Neubome, NewYork University; No Duchacek, City May 16,1987 University of New York; Richard Principal speakers: Maxwell Briffault, Columbia University; Bloomfield, Catholic University; GeorgeWashing- William Cohen, Stanford Univer- Marcus Cunliffe, J sity; G. Alan Tarr, Rutgers Uni- ton University; .lames Horton, versity; Robert F. Williams, George Washington University;

this Constitution 46 166 NEH Grants for ConstitutionalProjects, March 1987

THE JEFFERSON FOUNDATION $132,875THE UNIVERSITY OF ALABAMA 5180,533 Funding was provided for a program of"Jefferson Meetings" Support was awarded for for educators, attorneys, public officials, a two-year project that will study and other citizens to the theme of federalism and the historic study and discuss the politica! thoughtand ideals of the fram- role of the Constitu- tion in southern life. The grant willprovide for a public con- ers of the Constitution, the way their thought andvalues shaped the design of the document, and feren?.e at the University of Alabamaat which scholars will the way that design present papers, to be followed by eight local affects our contemporary system ofgovernment. The grant conferences in will provide for a symposium for Alabama and Mississippi. The proceedingswill be published in planners and organizers of a special issue of the Alabama state historical the "Jefferson Meetings" and for study and magazine. Con- discussion materi- tact: Robert J. Norrell, Center for the Study als and support forsome 40 to 50 meetings to be held around of Southern His- the country. Contact: Wiliam R. Merriman, tory iind Culture, University of Alabama,Tuscaloosa, AL 45487; Jr., The Jefferson (205) 348-7469. Foundation, 1529 18th Street N.W.,Washington, DC 20036; (202) 234-3688. UNIVERSITY OF CALIFORNIAAT SANTA BARBARA 543,213 RIPON COLLEGE 58,757 Support was awarded for the second of This grant will supportan exam.ration of the historical, le- a three-year series of lectures and public forumson the fundamental premises gal, political and philosophicalimplications of the "Free Soil" and history A America', constitutionallife. Funding was previ- movement and its interpretation of theConstitution, particularly its anti-slavery element. The ously provided for the first year'sactivities. With this grant, funding will provide for a three scholars in residence at the university two-day conference consisting ofa reenactment of historic de- will each deliver a bates, a panel discussion, and paper, lead a seminar, and prepare a paper forpublication on a keynote address at the college,Constitutional issues related to the Civil War whicii is located in Ripon, Wis., siteof important events in the and Reconstruc- tion era. The papers and transcripts ofthe seminars will be history of the movement. Contact: KimberlyC. Shankman, De- published in a university magazine. Contact:Donald J. McDon- partment of Politics and Government, RiponCollege, Ripon, WI 54971; (414) 748-8197. ald, Center for the Study of DemocraticInstitutions, University of California, Santa Barbara, CA 93106;(805) 961-2611.

General Programs (February 1986;August 1986)

AMERICAN ENTERPRISr; INSTI- INDIANA UNIVERSITY ALUMNI TUTE TEMPLE UNIVERSITY ASSOCIATION Philadelphia. PA 19122 Washington, D.C. 200:36 Bloomington, IN 47405 Project Director: Robert A. Gold- Project Director: Ellis Katz Project Director: Frank 13..lones Award: $74,982 win Award: $150,000 Award: $49,544 To support research on American To support promotion of educa- federalism and a three-day public To support a series of threecon- tional programs for the general conference in 1987 on state conferences and three books of es- public and a scholarly conference says on constitutional issues. stitutional law with the participa- on the history and significance of tion of scholars in history, law, the Northwest Ordinance to com and political science; justices AMERICAN POLITICAL SCI memorate its Bicentennial. ENCE ASSOCIATION from state supreme courts;,foreign jurists and scholars: andse Washington, D.C. 20036 PUBLIC RESEARCH SYNDICAT Project Director: Sheilah Mann lected others. The proceedings ED will be published. Award: $175,009 Montclair, CA 91763 To support publication and distri- Project Director: .lames .1. Barlow bution during 1987 and 1988 of UNIVERSM OF UTAH Award: $50,000 Salt Lake City, UT 84112 this Constitution: A Bicentenni- To support the syndication of a al Chronicle. Project Director: .1.D. Willicms series of newspaper articles com- Award: $30,000 memorating the Bicentennial of To support a ten-session lecture FLORIDA STATE UNIVERSITY the Constitution. Tallahassee, FL 32306 and debate series entitled "The Project Director: L o Sandon Miracle of Philadell :tia: The Con- Award: $:39,950 stitution of the United States," To support a threeday confer- led by distinguished historians, ence entitled "The Public Philos- constitutional lawyers, and pt;liti- ophy in a Pluralistic Society: Reli- cal scientists. gion and State in the American' Experience."

this Constitution 167 47 Humanities Federation HandbookOffers Plans for Local Projects Programs For each model the handbook includes acomplete syllabus Celebrate the Constitution: A Guide for Public and or- the Humanities, prepared by the Federation ofState Hu- suggesting recommended readings, as well as planning manities Councils with a $29,800 NEH grant, describes pro- ganization information. organizations, An appendix lists constitutional scholars ineach state to grams that can be organized by local civic and pro- schools, universities and libraries. The programs rangefrom give program planners direction in choosing speakers reading and discussion groups for the generalpublic to semi- gram leaders. and members of the legal Besides being distributed to the libraries receivingBicenten- nars and conferences for educators nial Bookshelf grants, the guide will be sent to the 53State profession. Book- Humanities Councils which compose the Federation. The The handbook complements NEH's "Bicentennial civic and shelf' program, which offered matching grants of8500 to help councils will distribute copies of the handbook to more than 800 public libraries in all50 states, the District of community groups in their states. reference Copies of the guide may be purchased from the Federation Columbia, Puerto Rico and the Virgin Islands to buy For books and other works on the Constitution. The programsout- for $6.00 per copy plus $1.50 for shipping and handling. Bicentennial Book- more information, contact the Federationof State Humanities lined in the guide are designed to use the 20005. shelf materials as the basis for study and discussion. Councils, 1012 14th St., N.W., Suite 207, Washington, DC

Federal Bicentennial Agenda

Commission on Bicentennial of the U.S. Bicentennial Information Center Opens; Constitution Given Two-Year Extension Offers Copies of Constitution, Calendars The U.S. Congress has extended the life of theCommission on the Bicentennial of the United StatesConstitution two The national Commission formally opened itsConstitu- years, through December 31, 1991, to ensurethat the 200th an- tion Bicentennial Information Center inDecember niversary of the signing and ratification ofthe Bill of Rights is 1986, a public resource center featuring Constitutional properly commemorated. materials which can serve as a prototype for similar out- The original lesiglationPublic Law 98-101, passedin Sep- lets across the nation: tember 1983gave the Commi ;ion a three-yearlifespan, The officelocated at 1711 H Street, N.W.,Washing through December 31, 1989, to cover the anniversaries ofthe ton, D.C. 20006will attract the generalpublic and pro- signing and ratification of the Constitution andthe formation vide needed exposure for both the Constitution and of the federal government. Those involved in thepreparations plans for the bicentennial commemoration. Visitors to for the Bicentennial observarce worked on extendingthe the Center will be able to ,vatch a videopresentation Commission's life to include a commemoration of the creation about the Constitution and obtain brochures,pamphlets, of the first ten amendmentswithout which supportfor the fact sheets and other promotional material. new U.S. Constitution and federal governmentwould have A small library of key reference book andperiodicals nen difficult. are available for use at the Centerand a computer termi- The Bill of Rights was sent to the states for ratificationby nal will 1irogrammed to answer questions on Bicen- Congress on September 25, 1789, and was ratified by thetenth tennial programs and projects. The Center also includes stateVirginiaon December 15, 1791. a Speakers Bureau which will coordinateand encourage Another provision of the legislation increases the total speaking events at state and local levels. amounts individuals and corporations may donate per yearto Single complimentary copies of the official 1987 calen- the national Commission. Individuals are now allowed togive dar of the Bicentennial Commission and pocketcopies $250,000 instead of $25,000, businesses can donate $1 mil- of the U.S. Constitution are available on request tothe lion, up from $100,000. Information Center. Multiple copies are provided at cost. The calendars are priced at $1.50 each and the pocket \\1 1 Consitution copies are $.15 each. The Constitution is available only in amounts of 50 or more. Checksshoui..1 be made payable to the Commission on theBicentennial of the U.S. Constitution. For further information,telephone (202) 872-1787.

Ibis Con.ctilulian 4$ 1 68 Bicentennial Commission Launches Designated Bicentennial Communities National Ad Council Promotion There are now over one thousand communitiesnation- wide designated as "Bicentennial Communities" The Commission on the Bicentennial ofthe United States by Constitution and the Advertising Council the national Commission on the Bicentennialof the launched a nation- United States Constitution. In order to become al public awareness campaign in February1987. A series of a "Desig- print and broadcast advertisement created nated Bicentennial Community," the chiefelected official by Sca li, McCabe and/or council must authorize a local committee and Sloves takes the theme "The Constitution,the Words We to plan Live By." The Advertising Council is appropriate and meaningful activities tocommemorate distributing the 30-second the Constitution and must then submit and 10-second broadcasts toover 900 television stations, all of an application to the major networks and approximately the state Bicentennial Commission. Approvalwill then 400 cable television come from the national Commission. outlets; they are narrated by CharltonHeston. The print ads go to magazines and newspapers. Viewers writing The Bicentennial period goes from 1987to 1991. Activ- to "Constitu- ities may include symposia and educational tion, Washington, DC 20599" receivea packet of infoin'mtion programs in on the Constitution that includes a copy of the the schools, parades and dedication ofConstitution document, a Malls and parks, as well as many other map, a bibliography and biographical informationon the fram- programs. ers. Further information is available from State/LocalAf- fairs, Commission on the Bicentennial ofthe United States Constitution, 736 Jackson Place, NW,Washington, DC 20503; (202) 653-9808. State BicentennialCommissionsUpdate

In issue no. 14 (Spring 1987) of this Constitution,we, 'fisted state Bicentennial commissions in 45 states. The followinghave established commissions sincem Ed.

ARKANSAS TENNESSEE Arkansas Constitution Bicenten- U.S. Constitution Bicentennial nial Commission Commission of Tennessee Lieutenant Governor's Office c/o Tenness'State Museum State Capitol 505 Deadc Street Little Rock, AR 72201 Nashville, TN 37219 501/371-2144 615/741.0825 Chairman: Hon. Winston Bryant Co-Chairmen: Hon. Harry W. Contact: Mike Ross Wellford Bic. Coor. Hon. Douglas Henry Contact: Mary Sewell MISSISSIPPI Staff Dir. U.S. Constitution Bicentennial Commission of Mississippi TEXAS P.O. Box 139 Texas Commission on the Bicen- Jackson, MS 39205 tennial of the U.S. Constitution 601/359-3100 P.O. Box 2066 Chairmen: Hon. W ;'lam C. Keady, Brownsville, TX 78520 Hon. Connie Levi 512/548-2570 Contact: Scott D. Pride Chairman: Hon. Ricardo Hinojosa Proj. Coor. VIRGIN IF,LANDS Bill of Rights Bicentennial in1991 NEBRASKA U.S. Constitution Bicentennial U.S. Constitution Bicentennial Commission of the Virgin Is- The editors of this Constitution would like Commission of Nebraska lands to hear from Varner Hall, Room 219 organizations thrt are planning events Virgin Islands Humanities Coun- to mark the Bi- 3835 Holdrege Street cil centennial of the Bill of Rights. Please senda bri.;!f de- Lincoln, NE 68583 P.O. Box 1829 scription of the program and thename of a coordinator 402/472.2111 x320 St. Thomas, VI 00801 to contact for additional informationto: Managing Edi- Chairman: Jack Schtietz 809/776-4044 tor, this Constitution, 1527 New HampshireAvenue, Contact. Julie Garay Chairman. Dr. Roderick Moore- N.W., Washington, D.C. 20036 Exec. Dir. head Contact: Sherry Simmons Vice-Chairwoman this Constitution ti 169 .!" 49 FROM PROJECT 87 1/4/ Celebrate Your Constitution! Celebrate THE BLESSINGS OF LIBERTY and theBicentennial of the United States Constitution with a poster exhibitthat tells the story of the American founding. The exhibit has received official recognition by the Commission on the Bicentennialof the United States Constitution. These 12 full color posters, each 22"x36',' attract theattention of viewers, who learn about constitutional principlesthrough vivid graphics accentuated by brief, carefully crafted texts.THE BLESSINGS OF LIBERTY conveys information and inspires further inquiry. The poster exhibit comes with a User's Guide, whichfeatures an essay describing the events,ideas and leaders pictured in the posters, separate less&ns for students ingrades 4- 6.7 -9, and 10-12, and other essays and bibliographies. The posters are available unmounted or on a sturdycardboard mounting system 6' tall. charcoal gray, andfoldable for reshipment. The poster exhibit can be displayedeffectively in libraries, civic centers, businesses. schools or courthouses.

Exhibits are sold only in complete sets of twelve posters. Individual posters me not available for purchase. PRICES: UNMOUNTED: $70.00 per exhibit MOUNT:iD: $110.00 per exhibit ADDITIONAL COPIES OF THE USER'S GUIDE:$4.00 each

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Orders must be prepaid: purchase orders will not be accepted.All orders should he sent and made payable to: Project '87 TilE BLESSINGSOP LIBERTY. 1527 Poster Titles: New I lampshire Ave.. NW. Washington. D.C. 20036. The Blessings of Liberty Quentity Unit Price Total The Articles of Confederation Unmounted Exhibits A "Less Perfect- Union. 1781-1788 The Constitutional Convention Mounted Exhibits The Founders' Achievement Addusonal User's Guides The Anti-Feelemlist Argameni GRANDTom' Ratir.-afion SI IIP TO: The11 of Right' Name A City Mon for the Constitution The Principle of Federalism ( 4.pm/A ion The Supreme Lout of the Land Addr.s Ourselves and Our Posterity Cue St tie Zip

this Constitution 50 1 7 0 this Constitution Evaluation Questionnaire

this Constitution: A Bicentennial Chronicle has been published quarterly since 1983 with thesupport of a grant from the National Endowment for the Humanities. thisConstitution iq designed to serve the people who organize and who teach civics, American history bicentennial programs or government. Help us determine whether this Constitution hasfulfilled this objective and served its inten'ed audience. Please fillout and return this questionnaire. 1. How long have you been receiving this Constitution? Since 1983_____. 1984 _____ 1985 ____ 1986 Only in 1987-88

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3. Please indicate the different sections of thisConstitution that are usefu' to you. a. How often do you read each section of this Constitution? Always Sometimes Feature articles Never Documents articles Classroom lessons Gazette of information on Bicentennial activities b. How useful is each section of this Constitutionto you? Very Somewhat Not Useful Useful Feature articles Useful Documents articles Classroom lessons Gazette of information on Bicentennial activities

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171 this Constitution 51 6. Comment on the subjects covered by this Constitution. What topics were interesting9

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this Constitution 52 172 The Federalist, No. 51 continued from inside front cover

If the principles on which these observationsare founded be just, as I persuade myself they are, and they as a criterion to the several State constitutions, and be applied to the fedei al Constitution, it will be found that ifthe latter does not perfectly correspond with them, the formerare infinitely less able to bear such a test. There are, moreover, two considerationsparticularly applicable to the federal system system in a very interesting point of view. of America, which place that First. In a single republic, all the power surrendered by the people is submitted to theadministration of a single government; and the usurpations are guardedagainst by a division of the government intodistinct and separate departments. In the compound republic of America, the power surrendered by the people is first dividedbetween two distinct governments, and then theportion allotted to each subdividedamong distinct and separate departments. Hence a double security arises to the rightsof the people. The different governmentswill control each other, at the same time that each will be controlled by itself. Second. It is of great importance ina republic not only to guard the society agatist the guard one part of the society against the injustice oppression of its rulers, but to of the other part. Different interests necessarilyexist in different classes of citizens. If a .najority be united bya common interest, the rights of the minority will be but two methods of providing against insecure. There are this evil: the one by creating a will inthe community independent of the majoritythat is, of the society itself; the other,by comprehending in the society so citizens as will render an unjust combination many separate descriptions of of a majority of the whole very improbable, ifnot impracticable. The first method prevails in all governments possessingan hereditary or self-appointed authority. This,at best, is but a precarious security; because a power independentof the society may as well espouse the unjust the rightful interests of the minor views of the major as party, and may possibly be turned against bothparties. The sec Dnd method will be exemplified the federal republic of the United States. Whi!st allauthority in it will be derived from and dependent the society, cite society itself will be on broken into so many parts, interests and classesof citizens, that the rights of individuals, or of the minority, will be in littledanger from interested combinations of the government the security for civil rights must be majority. In a free the same as that for religious rights. It consistsin the one case in the multiplicity of interests, and in the other inthe multiplicity of sects. The degre of securityin both cases will depend on the number of interests and sects; and thismay be presumed to depend on the extent of country and comprehended under the same number of people government. This view of the subject must particularlyrecommend a proper federal system to all the sincere and considerate friendsof republican government, since it shows that the territory of the Union may be formed in exact proportion as into more circumscribed Confederacies,or States, oppressive combinations of a majority will be facilitated; the best security, under the republican forms, for the rightsof every class of citizen, will be diminished; and consequentlythe stability and independence of security, must be proportionally increased. some member of the government, the only other Justice is the end of government. It is the endof civil society It ever has been and ever will be pursued until it beobtained, or until liberty be lost in the pursuit. which the stronger faction In a society under the forms of can readily unite and op4 .ess the weaker, anarchymay as truly be said to reign as in a state of nature, where the weaker individual 's not secured against the violence of thestronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit toa governmeh, which may protect the weak as well as themselves;so, in the former state, will the more powerful factions induced, by a like motive, to wish for or parties be gradually a government which will protect all parties, the weakeras well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from theConfederacy and left to itself, the insecurity of rights under the popularform of government within suchnarrow limits would be displayed by such reiterated oppressions of factious majoritiesthat some power altogether independent of the called for by the voice of the people would soon be very factions whose misrule had proved the necessity of it. Inthe extended republic of the United States, and amoilg the great variety of interests, parties, and sects which it embraces,a coalition of a majority of the whole society conld seldom take placeon any other principles than those of justice and the general there being thus less danger to good, whilst a minor from the will of a major party, there must be lesspretext, also, to provide for the security of the former, by introducing intothe government a will not dependenton the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding thecontrary opinions which have been entertained, that the larger thesociety, provided it lie within a practicable will be of self-government. And happily sphere, the more duly capable it for the republican cause, the practicable spheremay be carried to a very great extent by a judicious modification and mixtureof the federal principle.

_17tj PUBLIUS this Constitution 53 ..do ordain and estaifis6

thisConstitutiontion for tbe UnitedStatesof erica.

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174 Chronology of State Constitutions by Paul Finkelman

Between 1776 and 1787, eleven of the thirteen newly independent states wrotenew constitutions. Some of them wrote more than one constitution in this period. Two statesConnecticut and Rhode Islandused their colonial charters of 1662 and 1663 as their constitutinns, deleting, however, all references to the British government and the King. Vermont, which Icould become the fourteenth state in 1791, wrote its constitution in 1777. The constitution-making of 1 775 and 1776 set the stage for Independence, the constitution-making of 1775 through 1784 taught Americans much about self-government. In the summer of 1787 the delegates in Philadelphia were thus able to choose from a variety of constitutional models. The following chronology illustrates the important events in America's constitution-making era. At the beginning of the Civil War, Abraham Lincoln would use this series of events to support his argument that the Union predated both the Constitu- tion and the states and that it therefore could not lawfully be dissolved.

May 16, 1775: The revolutionary government in Massa- authority of the people of the colonies, for the preserva- c,cusetts asks Congress to authorize the drafting of a tion of internal peace, virtue, and good order, as well as state constitution. the defence of their lives, liberties, and properties." Juke 9, 1775: Congress urges Massachusetts to orga- June 7, 1776: Richard Henry Lee of Virginia introduces nize a legislature under the colonial charter. a resolution in.the Continental Congress proposing that July 19, 1775: Newly elected Massachusetts house of it declare independence. representatives meets. This is the first formally elected June 15, 1776: The Delaware assembly, elected before revolutionary state government. It is, however, elected the Revolution, asks all public officials to remain in of- under the old charter. fice "in the ne -ne of the Government of the Counties of October 18, 1775: New Hampshire asks Congress to Newcastle, Kent, and Sussex, upon Delaware," and not authorize a new constitution. "in the name of the King." October 1775: South Carolina asks Congress to auth.i- June 29, 1776: The Virginia provincial assembly rize a new constitution. passes a new constitution which includes the Virginia November 3, 1775: Congress directs New Hampshire Declaration of Rights. Patrick Henry is immediately to hold new elections and create a new government elected governor of the now independent state of without any ties to the old colonial government or to Virginia. Great Britain. Congress thus creates the first indepen- July 2, 1776: The New Jersey provisional congress dent state in the nation and sets the stage for the Decla- passes a new constitution which goes into effect imme- ration of Independence eight months later. diately. November 4, 1775: Congress directs South Carolina to Jul; 2, 1776: The Second Continental Congress, with hold new elections and create a new government. only New York abstaining, votes in favor of indepen- December 4, 1775: Congress directs Virginia to hold dence from Britain and on July 4 approves the Declara- new elections and create a new government. tion of Independence. January 5, 1776: The New Hampshire legislature votesJuly 8, 1776: In response to the Continental Congress' on a constitution for the state. This is the first state con- May 15 resolution, revolutionary leaders in Pennsylva- stitution to go into effect. Significantly, this constitution nia hold an ad hoc election to choose delegates to a is passed by the legislature as if it were an ordinary law. constitutional convention. Only men supporting the Rev- There is no ratification process. olution are allowed to vote in this election. March 25, 1776: The South Carolina provisional con- July 15, 1776: The Pennsylvania constitutional congress, which has governe ' the state since the Revolutionvention begins deliberations with ninety-six delegates began, passes a provisional constitution to be in force present. All delegates are required to take an oath re- until hostilities with Great Britain end. Like the constitu-nouncing allegiance to England. Unlike future state con- tion in New Hampshire, the South Carolina constitution stitutional conventions, Pennsylvania's was not called by is passed as if it were an ordinary law. any official or "legitimate" political body, delegates were May 4, 1776: The Rhode Island general assembly re- not elected by :.11 voters in the state, and the constitu- solves that the colonial charter is still in force but that tion went into effect without formal ratification. But as all references to the King should be deleted. This char- the first state convention specifically called for writing a ter will serve as the constitution of Rhode Island until constitution, it sets an important precedent. 1842. July 27, 1776: The Delaware revolutionary assembly May 10, 1776: Congress advises colonists to create gov-votes to hold elections for a convention to write a new ernments "where no government sufficient to the exi- constitution for the state. Only those who will swear at gencies of their affairs has been hitherto established." oath to support independence are allowed to vote. May 15, 1776: The Second Continental Congress re- September 21., 1776: The Delaware constitutional con- solves that "the exercise of every kind of authority un- vention, borrowing heavily from the Pennsylvania con- der the said crown ' be totally suppressed, and all the powers of government [should be] exerted under the Continued on page 57

1 70 ...do ordain and estahlik t is Constitution fortbe unitedStates ofmerica.

A Bicerttenniathronicle

No. 17 Winter 1987 39

Special Issue on the Inauguration of the Government

"Our Successors Will Have an Easier Task": 4 The First Congress Under the Constitutioa, 1789-1791 by Joel H. Silbey

The "Great Departments": The Origin of the Federal Government's 11 Executive Branch by Richard Allan Baker

The Birth of the Federal Court System 18 by David Eisenberg, Christine R. Jordan, Maeva Marcus, and 4Emily F. Van Tassel Documents Ratifying the New Constitution 25 114 by John P. Kaminski State Constitutions: Pillars of the Federal System 34 by A. E Dick Howard

Charles A. Beard's Economic Interpretation of the Origins 39 of the Constitution by Ellen Nore / Chronology of State Constitutions inside front cover 11 by Paul Finkelman From the Editor 2 For the Classroom: A Syllabus 45 The Meaning of the Constitution by Walter F. Murphy

Bicentennial Gazette 48 Bicentennial Presentations Scholarly Conferences Publications Exhibits National Endowment for the Humanities

18 Cover: The First Cabinet, engraving by Johnson, Wilson & Co. froman original painting by Chappel. 1874. Library of Congress,

this Constitution is published with the assistance ofa grant from the National Endowment for the Humanities as part of its special initiativeon the Bicenten- nial of the United States Constitution. Editorial officesare located at 1527 New Hampshire Avenue, N.W., Washington, D.C., 20036. All material in this publication may be photocopied if attributed as follows: "Reprinted from this Constitu- tion: A Bicentennial Chronicle, Winter 1987, published by Project'87 of the American Historical Association and the American Political ScienceAssocia- tion.- Project '87 would appreciate notification from those who photocopymate- rial in this issue for use in presentations to othergroups. © Copyright 1987 by the American Historical Association and the American PoliticalScience Associa- tion. Printed by Byrd Press, Richmond, Va. this Constitution 0 176 1111"mr this ConstitutionFrom the Editor published by Project '87 of the n this issue, we take a special look at the ratification of the Constitu- American Historical Association tion and the inauguration of the government under the new Constitu- and the American Political Science tion. Association John P. Kaminiski narrates the course of ratification, using documents from that struggle. Many states ratified making it clear at the same time James MacGregor Burns and that they expected their cinicerns to be met prImptly by amendments to Richard B. Morris, co-chairs the new constitution. A. the first branch of government, delineated by the framers in Article I Executive Editor of the Constitution, Congress assumed the chief burden of reassuring the Sheilah Mann, Director, Project '87 states that the new federal government would be accountable, delibera- Managing Editor tive and responsive. Some members of the First Congress worried about Cynthia Uarrison, Deputy Director, its effectiveness, getting off, as it did, to a late start. But, as Joel Silbey de- Project '87 scribes, Congress soon organized itself and established norms for the conduct of the nation's business. The First Congress sent the Bill of Rights to Editorial Assistant the states and enacted crucial laws, including -hose setting up the "Great Elsie T. Oppenheim Departments" of the Executive branch, outlined in Article II of the Con- Design Dir -ctor stitution. Richard Baker discu.as the early workings of these Executive Charles S. Snyder departments and the relationship of the department heads with each other and with the president. Photographic Research Article III of the Constitution specifically created the Supreme Court, Rebecca Hirsh but it left the "inferior Courts" to Congress to elaborate. Congress met Circulation Manager that obligation with the Judiciary Act of 1789, which is examined in an ar- Judy Caruthers ticle by David Eisenberg, Christine R. Jordan, Maeva Marcus and Emily F. Van Tassel. Editorial Board While the experiment in federal government was taking place, the Milton Klein (Chair), Department states were conducting constitutional experiments of their own, as they of History, University of continue to do to this day. A. E. Dick Howard takes a look at the history Tennessee of state constitutions and their role in the system of constitutional gov- l'Ve..1ton C. Cummings, Jr., ernment. A chronology, by Paul Finkelman, of the first state constitutions Department of Political Science, begins on the inside front cover and highlights the reciprocal relationship Johns Hopkins University between state constitutions and national governance. Margaret Horsnell, The interpretation of the intention of the framers has been one of the Department of History, most enduring questions in American history. Ellen Nore offers a view of American International College one of the most well-known scholars of the history of the Constitution, James 0. Horton, Charles A. Beard, whose thesis about the economic interests of the Department of History, founders has provoked debate among historians for decades. Walter Mur- The George Washington phy provides a syllabus that guides a class or a reading discussion voup University, and Afro-American through a discussion of the meaning of the Constitution and how one Communities Project, might interpret it. Smithsonian Institution A special feature of the "Bicentennial Gazette" is a list of scripts, tour- Frank J. Sorauf, ing shows, video, and audio presentations on the Constitution, many of Department of Political Science, them available for educational use. University of Minnesota this Constitution first appeared in the fall of 1983. In 1984, it began Richard H. Wilson, publication on a quarterly schedule. This issue is the last for 1987; one Secondary Social Studies more will aim 'ear in 1988, our final number, which will be published in Coordinator, Montgomery June. County (MD) Public Schools

CorrAction: The quotation frnm George Washington that appeared on the cover of the last issue was found for Project '87 by Joan IL Chailinor. The editors regret a typographical error that resulted in an Incorrect identification.

2 17'7 this Constitution Joint Committee

James MacGregor Burns Co-Chair, Department of Politica/ Science, Williams College Richard B. Morris, Co-Chair, The Papers of John Jay, Columbia University Lucius J. Barker, Department of Political Science, Washington University, St. Louis Herman Belz, Department of History, University of Maryland Walter F. Berns, Department of Government. Georgetown University Patricia Bonomi, Department of History, Nev.' York University Richard L. Bushman, Department of History. University of Delaware Beverly B. Cook, Department of Political Science, University of Wisconsin, Milwaukee Roger H. Davidson, Congressional Research Service, Library of Congress Don Fehrenbacher, Department of History, Stanford University Joel B. Grossman, Department of Political Science, University of /1) Wisconsin, Madison Harold M. Hyman, Department of n LI.U11.10. History, Rice University Linda K. Kerber, Department o; 111111:44:11;110.1111:41:1i History, University of Iowa Walter Murphy, Department of Politics, Princeton University Thirteen Enduring Mary K. B. Tachau, Department of History, University of Louisville Constitutional Issues James S. Young, Department of Political Science, University of Virginia Samuel IL Gammon, Executive Director, American Historical 91111'111111Hummiiimumninitiii Association .-- , Catherine E. Rudder, Executive Director, American Political Science Association Advisory Board Warren E. Bnrger, Honorary Chair- National PowerLimits and The Rights of Women Under man; Birch Baylr, Griffin B. Bell; Mary Potential the Constitution F. Berry; Richard Bolling; John Brade- Federalismthe Balance The Rights of Ethnic and mas; Joan R. Challinor; Robert L. between Nation and State Racial Groups Under the Clare, Jr.; Lawrence A. Cremin; Thom- as E. Deacy, Jr.; Wilfred "-inberg; The JudiciaryInterpreter of Constitution John T. Fey; Robben W. Funning; Man the Constitution or Shaper of Presidential Power in Wartime Geyer; Ruth Bader Ginsburg; Fred P. Public Policy and in Foreign Affairs Graham; Orrin Hatch; A. E. Dick How- Civil Libertiesthe Balance The Separation of Powers and ard; Shirley M, Hufstedler; John Jay between Government and the the Capacity to Govern Iselin; Harry W. Jones; Amalya Lyle Hearse; Edward M. Kennedy; Francis Individual Avenues of Representation R. Kirkham; Edward H. Levi; A. Leo Criminal PenaltiesRights of Property Rights and Economic Levin; Frank J. Macchiarola; Robert the Accused and Protection of Policy McClory; Bruce K. MacLaury; Charles the Community e Constitutional Change and McC. Mathias, Jr.; Paul J. Mishkin; Jo- seph A. Pechman; J. W. Peltason; Wil- Equalityits Definition as a Flexibility son Riles; Peter W. Rodino, .17.; Paul Constitutional Value Simon; Strom -hurmond; Laurence II. Tribe; Patricia M. Wald; Charles Alan :?, Wright 178 this Cons:nu:Ion 3 "Our Successors Will Havean Easier Task": The First Congress Under the Constitution, 1789-1791 by JOEL H. SILBEY

The First Congress under the Organizing public and the powers of the gov- Constitution got off to a late ernment varied among the pro-Con- start. Scheduled to meet on Most of the members of the First stitution forces as events in this March 4, 1789, in New York City, Congress were not strangers to the first Congress amply demonstrated. the temporary national capital, on rigors of legislative life in their raw, But, at the outset at least, there was that date no quorum was present in new country. As was to be expect- general good will and a hope that either house. As a result, no busi- ed, they were members of the ruling all would contribute effectively to ness could be transacted; more- social and political elites of their the success of the new government. ovei, the eight senators (of 22) and day. Either thelad inherited high Despite the cold and damp of a thirteen representatives (of 59) iocial status aitti wealth, or they New York City spring, once settled who were there at the scheduled had made their way significontly up in Congress got down to business time had a long wait. The House did the social ladder on their own. Law- without fuss. "There is the most ne1. achieve a quorum until April 1; yers, planters, land speculators and punctual attendance of the mem- five days later, on the sixth, the merchants, many were graduates of bers at the hour of meeting," Massa- twelfth senator, Richard Henry Lee the most prestigious colonial col- chusetts' Fisher Ames wrote, of Virginia, finally arrived to form leges and British universities. "Three or four have had leave of the necessary majority of that Schooled in the English parliamen- absence, out every other member chamber. tary tradition, several had served in actually attends daily, till the hour The month-long delay was ha-dly their state legislatures and in the of adjourning. There is less party an auspicious beginning, even al- Continental Congress. Twenty had sph it, less of the acrimony of pride lowing fo: tne difficulties of travel, participated in the Federal Conven- when disappointed of success, less late elections in some states and tion, several in the state ratifying personality, less intrigue, cabal, unresolved contests for some seats conventions; half of them had been management or cunning than I ever in others. It strongly recalled the politically active in the revolution- saw in a public assembly." The dilatoriness, inattention, and what ary period. Among them were two businesslike, conscientious behav- Congressman Fisher Ames referred future presidents as well as many ior remained. The rest did not. Con- to as "the languour of the ola con- who would shape the political gress moved very slowly at first federation" which the new gold ern- world during the next decade and owing to the newness of its situa- ment was to replace. Nevertheless, more. Fisher Ames, Elbridge Gerry tion, and "the novelty and complex- once it settled down to work, this and Rufus King sat with James ity of the subjects of Legislation." first Congress found its feet and Madison in the House, while Robert Its members were, Madison pointed accomplished an enormous amount. Morris and James Monroe joined out to Thoma.- Jefferson, "in a wil- In its three sessions, from April, 1789 past and future in the Senate. As derness without a single footstep tsJ to March 1791, it established the Fisher Ames summed them up, guide us. Our successors will have foundations of the new govern- there were "few shining geniuses an easier task." ment, addressed some of the ambi- ... many who have experience, the A throne of Congress' activi- guities in the Constitution, and set virtues of the heart, and the habits ties from 1789 to 1791 suggests the the whole republican experiment of business." It would be "quite a variety and range of the matters on its permanent course. The Con- republican assembly. It looks like covered. In the first session, it was stitution had left a great deal unsaid one. Many who expected a Roman inevitable that congressmen would or unclear about the nature of the Senate ... will be disappointed." be preoccupied by definition and new government. The First Con- Ideologically, the members of institution building. Each house's gress provided the initial opportuni- Congress were almost of one mind. first action was to read and file its ty to put flesh on bare bones. The Most had been supporters of the own credentials and inform the oth- men sitting in New York took up Constitution and had helped in the er that it was organized. This opera- the ;.eavy task successfully. They ratification struggles in their states tion was followed by a joint meet- were guided by the notion, in the over the past two years. The Consti- ing in the Senate Chamber to open words of one of their number, "that tution's opponents, the Anti-Feder- and count the electoral votes for it is proper for the legislature to alists, were few in number. This did President and Vice President. speak their sense upon those points not prevent great controversy since Shortly after the winners were notion which the Constitution is silent." definitions of the nature of the re- fied, John Adams arrived to preside

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40 \ Madison, was appointed on July 21, 1789, Lind reported e'-actly a week later, on the 28ii. Finally, there were conference committees that had to be appointed when the two houses disagreed on the wording of a bill as frequently happened in the First Congress. Defining Relationships What Congress had to do was dear enough. After organizing itself and settling its procedures, a vast array of business confronted the members. The matters to be dealt with ranged from the symbolic to the substantive. Inthefirf,:tin- stance, such concerns involved defining relationships. What titles Courthouse at Sixth and Chestnut Streets, Philadelphia, to which the First Congress moved in1790. The Historical Society of Pennsylvania. shall there be in the new Republic? What shall be the meaning of the appointing powers of President and over the Senate as Vice President Committee of the Whole. Bills were Congress? What shall be the rela- on April 21. On April 1, the House then sent to special committees for tionship between executive depart- had elected Frederick Muhlenberg, final drafting into refined language ments and Congress? Is one house f a prominent Pennsylvania family, reflecting the previous debates. superior to the other; does each as its first Speaker. George Was& There were only two standing sub- have a distinctive role? From the ington arrived two days after Ad- ject committees in the First Con- vantage point of two hundred years, ams, took the oath of office on April gress: the Committee on Elections, much of this seems remote to im- 30 and delivered his inaugural ad- and a Committee on Enrolled Bills; portant matters; other aspects an- dress in the gallery in front of the the rest were ad hoc. ticipate themes still present in the Senate Chamber. Before and after the daily ses- 1980s. As Congress began io sort itself sions, these committees, then as The long debate over titles clear- out in these spring months, each now the life-blood of legislative ac- ly had substantive implications. The house elaborated sets of internal tivity, met to advance the legislative Senate wanted the posident to be rules of procedure to guideit business befc:e them. Early on, cer- called, "His Highness the President through its daily business. The two tain people were viewed as experts of the United States, and Protector houses drew upon the precedents in particular subject areas and they of the Rights of the Same." The of either Britain's House of Com- usually ntere appointed to the rele- House demurred and the first con- mons or the colonial assemblies or vant committees. Oliver Ellsworth gressional conference committee the state legislatures in which mem- of Connecticut, one of the acknowl- ever appointed had to deal with this bers had carnet served. The major edged legislative activists, for ex- issue. The S' rate's aggressive pre- locus of activity became each ample, served on 22 committees in siding (Aker, John Adams, made chamber's Committee of the Whole the first session, and 36 in the sec- his position clear: without such ti- House on the State of the Union. It ond, compared to an average of 11 tles there would be an important was there that the principles, direc- for all senators. Robert Morris and lack of dignity and respect for their tions and boundaries of the legisla- Richard Henry Lee were other ac- new republican institutions. To the tive agenda were established. After tive committee member. in these House of Representatives the ques- a member requested permission to years. Committees did not. stay out tion was one of violating the essen- introduce a bill, and such was giv- long. The select committee on the tials of republican simplicity. The en, the subject was debated in the Bill of Rights, chaired by James whole thing was not worked out

this Con4litution 6 181 The Constitution had left a great deal unsaid or unclear about the nature of the new government. The First Congress provided the initial opportunity to put flesh on bare bones.

until the Senate agreed to go along ity. A number of senators felt that claimed that they h_zi this right. with the House's referral of the he was out of place. Their historical Washington strongly demurred, ar- chief executive as just "Mr. Presi- memories of the long years of co: guing that such a process would dent." flict between the English King and effectively prevent him from carry- In a similar vein, the members Parliament,particularlythe ing on the government with people engaged in long debates over how former's efforts to bend the legisla- of nis own choosing. For a time, a to treat each other, the procedures ture to his will, and of the battles vigorous debate developed, presag- for receiving_ messages from each between the colonial governors and ing a later controversy in the Re- other, and how the president was to theirlegislative assemblies, re- cohstruction era when Congress be received when lit: came to give mained strong. The president impeached President Andrew John- his annual report on the State of the wished in this instance, one senator son over the same disputewheth- Union. Finally, there was debate claimed, "to bear down our deliber- er or not he could remove an offi- over whether the president wou d ations with his personal authority cial from office without the be mentioned in the enacting clause and presence. Form only will be left Senate's consent. This particular of the bills passed. These matters to us." Such men were determined debate in the first Congress petered clearly echoed practices of the En- to protect legislative independence out as only a few senators chose to glish Parliament, with its Address from the executive, especially try to make an Issue of their right to from the throne and the formal against any indications of pressure advise on removals. But the argu- response to it, and the English con- on their considerations. ment, together with several similar stitutional position that their gov- This attempt at face to face dis- ones, reveals a great deal about the erning authority was the "King in cussion in the Senate chamber was uncertain powers of the different Parliament" so that both warranted awkward. Washington did not ri- branches r_ "the government caused mention in legislation. peat it. Rather, written communica- by often ambiguous constitutional Congress o.nitted mention of the tions between the executive and provisions, as well as the tendency president in its bills, but that one legislative branches became the es- of some congressmen to be defen- ision could not clarify the still tablished procedure. But the pre:I- sive about their own powers and ambiguous relationship between dent was not passive in using the suspicious of the president's inten- the chief executive and the national Senate as a consultive body in for- tions. legislature. Madison had few eign and military affairs when and qualms about the rgationship at the as he saw fit to do so. He wrote Legislation outset. "In our government," he frequently to ask advice before said, it was "less necessary to guard treaties were finalized. The Senate In addition to these definitional against the abuse in the Executive responded more freely than it had and status problems, Congress be- Department... because it is not the when he came in person but always gan to consider and pass an enor- stronger branch of the system, but re mained somewhat distant and mous amount of substantive, legisla- the weaker." cautious toward his requests. tion. Here, perhaps, lies much of the Nevertheless, Washington'sat- President Washington also con- importance of this First Congress tempt to negotiate directly with the sulted congressmen directly about (althr Igh its members would have Senate over an Indian Treaty pry appointments to executive office, argue that their wrestling with def- yoked great tensions and fea s. The willingly receiving from them sug- initions, procedures and limits on treaty negotiations and drafting gestions of both acceptable and un- power were just as critical for the were primarily the President's re- acceptable appointees. That proce- future). On May 19, 1789, for exam- sponsibilities. He determined to in- dure world well. One matter that ple, Representative James Madison clude the Senate in them as well, became contentious involved the moved the creation of a Depart- taking a broad view of that body's constitutional pros sion that thement of Foreign Affairs, one of constitutional duty tc advise and Senate advise and consent to indi- Treasury, and one of War. Later, consent to treaties. But, as Wash- vidual executive appointments. Did several other bills, including those ington viewed it, the Senate's re- such responsibility carry with it the to create the offices of Attorney ponse was not helpful. He ap- implication that senators also had General, Postmaster General, Su- peared in the Senate chamber on a to agree when the president wished perintendent of the Land Office, the warm August day in 1789 to be met to remove someone they had previ- Governor of the Northwest Terri- with much silence and some hostil- ously apptoved? Some senators tory, were also introduced. There this Co....!ution 7 " 18°4 Interior of the House Chamber in Federal Hall, New York City. Library of Congress.

was an attempt to add to the list a Act. As a result, the irascible Sena- tral participants in the two other Home Department, concerned with tor William Mac lay of New Hamp- major areas of legislative activity in a range of administrative duties, shire complained in his journal of this Congress beyond the establish- patent and copyright registration, his chamber's comparativeidle- ment of the government itself. He the census, etc. Most of these sub- ne..s. worked vigorously to undercut op- sequently wound up in the Depart- At the center of this activity was position to the rif.NT government by ment of-Foreign Affairs, renamed the acknovC'!dged floor leader and moving earlytoincorporate with the broader title of Depart- administration spokesman in the changes and clarifications in the ment of State. Congress also passed House of Representatives, the "Fa- Constitution. 'took a campaign the Judiciary Act of 1789, establish- ther of the Constitution," James promise he had made seriously and ing a federal court system, detailing Madison of Virg:nia. Fisher Ames pressured the House to take up the federal judicial procedures, and said of Madison that he "speaks amendments to the Constitution he recognizing the power of judicial low, his person is little and ordi- had fashioned out of the several review over legislation enacted by nary." But his physical stature did hundred suggestions made by state Congress. not limit his imagination or effec- ratifying conventions and local po- All of these bills passed by the tiveness, first as the leader of the litical meetings. Almost all of these su; rimer and early fall of 1789. They constitutional forces, then as the suggestions sought limits on the elaborated the sti ucture of the fed- close confidant of Washington, and, power of the central government, eral government rapidly and effec- later, as the emerging leader of the many in favor of individual rights. tively, creating the foundations on anti-administration group in Con- Madison reduced the number of which the execution of national au- gress. Among the first representa- suggestions, 17 of which he shep- thority rested thereafter. It was a tives to arrive for the first session, herded through the House of Repre- notable achievement especially for he quickly began that round of ac- sentatives. The Senate reduced the House of Representatives tivities that led him at one point to thee: further to 12 (largely by com- which held the initiative in these be engaged not only in shaping leg- bining several) which were submit- early days and did most of the islation and caucusing to work out ted to the states where ten were work. During its three sessions the compromises, but also in writing finally ratified as the Bill of Rights. First House of Representatives con- messages to himself as he drafted (The two that were not ratified lim- sidered 142 different bills (other both the House's response to the ited congressmen's ability to raise than private ones, introduced by President's Address and the Presi- their own salaries and set stringent individual members for some limit- dent's reply to that responsenot restrictions on the apportionment eo or special purpose), the Senate to mention parts of the original of seats in the House.) only 24. In the first session, the Address itself. He was a busy man. This major achievement of the Senate originated only the Judiciary Madison was also one of the cen- First Congress passed with some

this Constitution 1 8 3 The United States was a pluralist society of many groups with different, and often conflicting, economic interests. These different economic groups and regional interests now faced each other over the shape and impact of national economic policy.

angry debate but relatively little op- floor a tariff bill and a bill to regu- York and Pennsylvania congress- position. Most congressmen accept- late foreign trade, and he then be- men strongly opposed. Hamilton ed the need to reassure those still gan to formulate plans for an excise benefited from the powerful im- suspicious of any expansion of cen- tax bill, all designed either to raise pulse at work to make the new tral -government power. Madison revenue for the new government or -,overnment successful, to find and others believed that the rights to establishits. role -inexternal means to bring people together, to enumerated in these amendments trade relations. Some of these pro- compromise different points of already clearly existed and did not grams provoked opposition by eco- view, all hallmarks of this Congress need to be spelled out as constitu- nomic groups negatively affected in its early months. As Senator Wil- tional provisions. BW they accepted by parti ular tariff rates or unhappy liam Smith of South Carolina put it, the amendments' need in political with other specific provisions they "Much harmony, politeness and terms, as part of the legitimating considered detrimental to their eco- good humor" characterized this as- reassurances necessary to bolster nomic well being. Madison worked sembly. Madison and other nation- support for the federal government assiduously and successfully to alists had a great stake in nytldng and its activities. This massive affir- meet objections by amendment and the new system work. mation of personal liberties against compromise, to built coalitions, But, as bill followed bill to carry government power, in short, passed and to shepherd the whole package out Hamilton's program, another largely due to political calculations through. By the end of the first legacy of this Congress emerged: and requirementsthings that do session, in late September 1789, stable political alignments. Opposi- not lessen the amendments' impor- Congress had given the federal gov- tion to Hamilton grew stronger and tance but places their passage into ernment a number of important rev- more bitter, finally including Madi- perspective as a specific part of the enue resources to help it operate. son and Secretary of State Thomas nation building agenda dominating Hamilton was more concerned, Jefferson as well. Both broke with this Congress. however, with domestic economic the Washington administration over matters. He detailed his program in the reach of this national econoinle Economic Policy January 1790 in his Report on Pub- agenda. As their resistance devel- lic Credit, drafted at Congress' di- oped, the congressional arena be- The most contentious area of leg- rection. Hamilton's recommenda- carre snore divided than it had ever islative activity in these years in- tions included the funding of the been and more angry. Fisher Ames volved economic policy, especially national debt, the federal govern- referred to the second session from the wide-ranging program aggres- ment's assumption of the outstan Tanuary to August 1790, when much sively pushed by Secretary of the ing state debts (to permit the accu- of Lhis controversy began to devel- Treasury Alexander Hamilton. The mulation of development capital), op, as "a dreadful one" with its Hamiltonian program was designed and the establishment of a national "discord of opinions", and "laby- to give the federal government au- bank to carry on directly the federal rinth" of intrigues, cross pressures, thority to raise revenue, regulate government's finpncial act,vities anger and division. commerce and establish national and to regulate indirectly the gener- In fact, real policy differences authority in the economic sphere al economy. Eventually, Congress existed anti so political matters pro- more clearly than had been the case adopted most of Hamilton's provoked conflict The United States earlier.Imes Madison was deeply gram. Some of it Madison support- was a pluralist society of many involved from the first, originally ed, some of it went through in the groups with different, and often an- throwing his support behind no- form of legislative compromises tagonistic, economic interests. tions of building up national eco- fashioned between Madison and These different cconoraic groups nomic strength. Before long, how- the administration. The most fam- and regional interests now faced he moved into opposition to ous of these bargains was the each other over the shape and im- the ambitious goals of Hamilton, agreement by the Virginian and his pact of national economic policy. creating an era of conflict in Con- colleagues to support the assump- The internal economic rivalries gress different from its early, har- tion of state debts in return for the within the nation were appearing monious, days. establishment of the national capi- on the floor of the First Congress as Discussion began quietly enough. tal on the Potomaca cloice they had appeared during the time In the first session, in the spring of Washington and other Southerners of the Articles of Confederation. 1789, Madison brought onto the very much wanted but which New Further, and critically, there were this Constitution tdA 184 -1!,

'4111

Full consolidation into political parties, a situation .hat was to c:iarac- terize the next decade, had not yet occurred but was becoming visible. This was yet another heritage this Congress left to its successors and to history- an important structure of disagreement and conflict.

Conclusion "Tomorrow," James Madison wrote to his brother on March 2, 1791, "will put an end to our existence." The First Congress adjourned the next day. It had come a long way. It had filled out the government framework, instituted a system of national revenue, attended to the debts of the Revolution, set up a judiciary, begun to establish a presence in foreign relations, paid attentions to our borders and relations with the Indian tribes. It created a whole range of adminis-

Frederick MuAlenberg,first Speaker of the House of Representatives: tellection of the Architect trative agencies and it had passed a of the Capitol, Library of Congress. Bill of Rights. It founded a national bank and located a permanent capital. Ir terms of the long view, the strong indications teat this conten- swiftly changing from issue to is- First Congress had reminded every- tiousness was more than temporary sue. But as time passed and the one that America was a fractious since it reflected not oily the local, controversy over the Hamiltonian ertity, that Americans readily divid- sectional and regional economic program sharpened and deepened, ed along ideological, local and sec- differences endemic in the Ameri- several distinct lines of cleavage tional lines when provoked by gov- can republic b'it also basic ideologi- became noticeable in Congress. ernment activity, that the extent of cal differences over the role, pur- There were two kinds of polari- the reach and powers of the nation- pose and extent of the powers of ties, a division over strong govern- al government remained an area of the nationa government. ment versus weak government, and contention; it showed too that there The battles over the Hamiltonian then sectional/regional differences were vigorous proponents of the program proved deep and searing. on economic and developn....n:: is- many positions present on the floor It had bef..ome apparent, to every- sues. Three voting blocsnerged in of the rational legislature and that one's great relief, that the danger- the first session representing the Congress would be a major focus in ous sectional divisions of the earli- Eastern, Southern and Middle the defining and shaping of the bat- er years had not intensified. As states. Different ones appeared lat- tles over the future of the t,,ountry. Madison noted to Jefferson, "mem- er, particularly, and ominously for It was not a bad beginning. bers from the same State, or the national stability, the much feared same part of the Union are as often North-South one. By the end of the Joel H. Silbey is President White Pro- separated on questions from each First Congress, whatever had gone fessor of history at Cornell University. other, as they are united in opposi- before, a hardening of positions He is the author of The Partisan Impera- tion to other States or other guar- tive: The Dynamics of American Politics was occurring. The House then had Before the Civil War (1985), and one of tei.6 of the Continent." At first, too, 39 pro-administration members and the editors of The History of American voting blocs were very volatile, 27 wl.to were anti-administration. Electoral Behavior (1978).

.105 this Constitution The "Great Departments": The Origin Gi the Federal Governmetts Execut;Je Branch by RICHARD ALLAN BAKER

Inits first years the executive awaited presidential and congres- sponsibility for whatever was branch of the federal government sional initiative: John Jay as secre- done." consisted essentially of the presi- tary of foreign affairs, Henry Knox Initially, Washington consulted dent and his three principal advis- as secretary of war and Samuel with his department heads, individ- ers- -a modest begin. ,ing Among Osgood, who looked after the coun- ually or collectively, as circum- these advisersthe secretaries of try's pest offices. The old Treasury stances dictated. Within four years, treasury, state, and warTreasury Board continued to manage the na- however, this group began to meet Secretary Alexander Hamilton tion's finances. regularly and became known as the ranked first, combining superior ad- On June 8, 1789, while waiting for president's "Cabinet." He worked ministrative skills with a sparkling Congress to pass legislation estab- with the cabinet much as he had intellect. Secretary of State Thomas lishing the three major depart- with his senior officers during the Jefferson, who would rather have ments, Washington asked each of Revolutionary War, often changing remained minister to France, took the acting secretaries for a written his own plan in the face of adverse second place in this exclusive com- survey of the "real situation'. within opinion from his advisers. In the pany. And the congenial Henry their agencies. He urged them to early years, the president encour- Knox, preoccupied with his wife's provide a "clear account .... as aged opposing views and he got gambling debts, served without no- may be sufficient (without overbur- them in abundance in bitter clashes ticeable distinction as secretary of dening or confusing the mind v, hich between Secretary of State Thomas war. Playing significant supporting has very many objects to claim its Jefferson and Treasury Secretary roles, but apart from these chiefs of attention at the same instant) to Alexander Hamilton. By 1793, as the "Great Departments," were impress me with a full, precise, and the burdens of the presidency in- Postmaster General Samuel Os- distinct general idea of the affairs creased, Washington concluded good and Attorney General Ed- c)f the United States, so far as they that henceforth he would avoid ad- mund Randolph. are comprehended in, or connected vigers "whose political tenets are At the 1787 Constitutional Con- with that department." adverse to the measures which the vention, delegates demonstrated lit- In his relations with the embry- general government are pursuing." tle interest in the specifics of exec- onic executive departments, Presi- ut re department organization. dent Washington proved to be a The Treasury Department Once they had determined the pow- capable administrator. His military ers and responsibilities of the presi- command , ,c1 staff experience be- The statute creating the Treasury dential office, they simply assumed came apparc. _in his manner of .0epartment contained greater de- that an administrative structure reviewing proposals of subordi- tail than those estaolishing the de- would form to continue the basic nates, in outlining plans for them to partments of Stay and War, yet all governmental functions of finance, expand, and in his pursuit of opin- three were remarkably brief. Trea- foreign relations, and defense that ions regarding the constitutionality sury was the largest of the three existed under the Articles of Con- of legislation and policy decisions. cabinet agencies and, during the federation. The Constitution's only Thomas Jefferson later described early years of the new govern- explicit reference to this structure Washington's managerial style: "If a ment's existence, it grew at a faster appears in Article II, section 2 with doubt of any importance arose," rate than the other two. Congress the provision that the president wrote Jefferson, the president "re- singled out that agency for special "... may require the opinion, in served it for conference. By this attention by providing a direct tie writing, of the principal officer in means, he 1A-as always in accurate ,,cween it and the legislatui e. Un- each of the executive departments, possession of all facts and proceed- like the heads of the other two upon any subject relating to the ings in every part of the Union, and departments, who were to carry out duties of their respective of- to whatsoever department they re- their duties "in such manner as the fices ...." lated; he formed a central point for President of the United States shall, For several months after George the different branches; preserved a from time to time order or in- Washington took his oath of office unity of object and action among struct," the treasury secretary was on April 30, 1789, he served as them; exercised that participation given a specific congressional man- virtually the entire executive in the suggestion of affairs which date. The statute provided that he branch. Caretakers left over from his office made incumbent upon "digest and prepare plans for the theConfederation government him; and met himself the due re- improvement and management of 1. this Constitution 186 11 Jar In these formative years, the executive agencies established a high level of legitimacy and 'moral integrity, as well as a degree of autonomy from close legislative direction.

the revenue, and for the support of the public credit" and that he "make report, and give information to either branch of the legislature, in person or in writing... respecting all matters referred to him by the Senate or House of Representa- tives, or which shall appertain to his office." The act contaired no explicit provision for presidential supervision of the secretary. Six days after Hamilton became treasury secretary, the House of Repre- sentatives abolished its Committee on Ways and Means. This action suggested that the House intended. the secretary to take the initiative in the formulation and implementation of general financial policy: preparing revenue measures, drafting public reports, managing financial operations, and placing public funds in banks and other financial institutions. Even before the department was officially established, Congress assigned it operational control of the customs service, light houses, and sailing vessel registration. Beyond its initial financial duties, the department soon acquired responsibility for administering a $12 million loan for conducting land surveys. Customs collectors took on the additional tasks of paying military pensions and purchasing army supplies. Postmaster Genera' Samuel Osiood. Collection of the Architect of the Capitol, library of Conlin se: The department's large number of employees reflected its broad responsibilities. At the end of 1789, raising revenue made that agency training and experience to accom- its central office included six chief preeminent. Hamilton had actively plish this difficult task. When Rob- officers,three principal clerks, campaigned for the position well in ert Morris, financier and senator, twenty-eight clerks, and two mes- advance of his September 1789 ap- advised the president to 9eleIt the sengers. Within a year, that number pointer ent. While many friends ear-old Hamilton, whom he de- had nearly doubled. By 1801, the urged him to avoid the treasury scribed as "damned sharp," Wash- Treasury Department employed with the nation's finances in a ington immediately sent his name more than half of all federal govern- "deep, dark, and dreary chaos" to the where confirmation ment workers, including a field staff and run for the Senate, or seek quickly followed. of 1,600 revenue collectors. nomination as chief justice of the With a growing family to support, The combination of Alexander U.S. Supreme Court, Hamilton be- and a promising law practice under Hamilton's leadership and the Trea- lieved that he was one of the few way, Hamilton realized that he was sury Department's vital function in men available who possessed the endangering his personal financial this Constitution 13 18R a / security by taking the modestly president could remove the officers compensated $3,500-per-year post. subject to Senate confirmation After a month on the job, he com- without Senate concurrence. mented, "I hazarded much, but I Although President Washington thought it was an occasion that _ ',- was content to leave management called upon me to hazard." Secretary of the Treasury Alexander Hamilton. of the nation's finances to die trea- A gifted administrator and a fis- Independence Natloial Historical Park Collection. sury secretary, he displayed no cal genius, Hamilton had been in- such detachment in the realm of volved in the affairs of givernment foreign affairs. The president rou- since 1777 when, at the age of 20, he the nation's formative years. The tinely consulted close associates on was appointed Washington's mili- secretary of state conducted for- foreign policy matters, but did not tary aide. Five feet, seven inches eign negotiations on a highly per- necessarily include the secretary of tall, he maintained a strict military sonal basis. These relations were so state in the discussions. Jefferson bearing, heightened by a- touch of delicate that no secretary consid- expressed his frustration, on one arrogance. A man of vast energy ered the possibility of delegating occasion, writing that as "Secretary and deep intellect, Hamilton under- them to subordinates. With minis- of State to the United States, I can stood the possibilities for planned ters in only five capitalsParis, not receive any communication on economic development under gov- London, Lisbon, The Hague, and the part of foreign ministers but for ernmental direction. Above all, he Madridthere was little need for the purpose of laying it before the preferred action to contemplation. an administrative staff greater than President, and of taking his orders One f;lographer observed that a half -dozen clerks. upon it." "Hamilton's credo was audacity Unlike the close ties Congress set The act of July 27, 1789, which and yet more audacity. While others between itself and the treasury sec- established the Department of For- temporized, calculated the risks retary, it left the secretary of state eign Affairs as the first executive and paused in indecision, Hamilton to the president's supervision and agency, provided only the briefest acted." did not even require an annual re- outline of its duties. They included His intense ambition, his passio' port from him. The only issue that "Correspondence, commissions, for order and efficiency, together troubled legislators in de vising this and instructions to ministers and with Hs tendency to meddle in the statute was the president's author- consuls; negotiations with public operations of other cabinet agen- ity to remove the secretary. Ti.is ministers from foreign states or cies, made him the administrative question provoked the first major pinces; memorials or other appli- architect of the new government. crisis in relations between the legis- cations from foreign ministers or The combination of special con- lative and executive branches un- other foreigners"; and "such other gressional powers vested in the der the new Constitution. matters respecting foreign affairs as Treasury Department, 0-1 presi- For days in June 1789 a debate the president assigned." dent's relative inexperience in fi- raged in the House of Representa- Early in its existence, the State nancial affairs, and Hamilton's ex- tives as to whether the president Department acquired a significant pertise placed him in a stronger should seek the Senate" advice be- measure of responsibility for do- position than the secretaries of war fore removing officers whose initial mestic, as well as foreign, affairs. and state to pursue a course of hisnominations had received Senate Congress had specifically rejected a own choosing. One member of Con- review. The debate focused on the proposal to create a "Home Depart- gress commented, "Congress may right of Congress to specify condi- ment" in the belief that it could go home. Mr. Hamilton is all-power- tions for the operation of an execu- achieveadministrativeefficiency ful and fails in nothing he at- tive agency, including conditions and minimize expenses by dividing tempts." for its chiefs removal, as long as these functions among the three those conditions did not conflict former Confederation agencies. The State Debartment with provisions of the Constitution. The :,,ajor share would go to the It also raised the question of wheth- Foreign Affairs Department as it Compared with Treasury, the er the president wo Id be required was less burdened with work than State Department remained rela-to share administrative authority the Treasury and War departments. tively small and restcted in the with the Senate. On a close vote, Consequently, in September 1789 scope of its activities throughoutboth chambers agreed that the the Foreign Affairs Department was

14 18J this Constitution ti

renamed the Department of State forms, Jefferson dete-mined wheth- and given such functions as distrib- er the individual inventions were uting federal laws to members of either frivolous, unworkable, or Congress and, the states, preparing mere modifications of existing and authenticating commissions is- items in common use. During his sued by the president, conducting Secretary of War Henry Knox. Library of Congress. five years in office, Jefferson grant- the decennial census, granting pat- ed sixty-seven patents, rejecting a ents and copyrights, and safekeep- great many more. In 1791, weary of ing government records. The de- country's role in maintaining Amer- the task's complexity and demands partment also issued instructions to ican independence of Great Britain. on his time, Jefferson drafted a bill federal marshals and attorneys, and As secretary of state, he soon en- relieving himself of 'ubstantive re- coordinated the activities of federal gaged in sharp political infighting sponsibilities for the patent proc- judges. with Aleyander Hamilton, their mu- ess. Two years later Congress At its beginnings, the department tual antagonism flaring over rela- passed a similar measure, eliminat- included two clats. One was in tions with Great Britain and France. ing the examination and placing charge of the Foreign Office and the Jefferson advocated commercial responsibility for settling disputes other supervised the Home Office. sanctions against the British to with the courts. Housed in two rooms, this staff force their evacuation from posts in Jefferson considered these and grew slowly with the addition of a the Northwest. Hamilton success- the related duties of his office as chief clerk who carried the title of fully blocked this strategy, fearing a "hateful labors." As his earlier and undersecretary, a part-time inter- serious loss of revenue from British subsequent accomplishments testi- preter, a doorkeeper, and a messen- imports. Hostilities between the fied, Jefferson's greatness lay else- ger. In 1792 Congress authorized two secretaries intensified as Ham- where. While secretary of state, he two additional clerks. By 1800 the ilton continued to interfere in the operated in the shadow of George State Department of the United conduct of foreign affairs and pub- Washington, who wished to be his States included one secretary, one lished an anonymous series of bit- own foreign minister. Overcome by chief clerk, seven clerks, and a mes- ter attacks on Jefferson. the drudgery of the job and his senger. When not engaged with pressing battles with Hamilton, Jefferson re- When Thomas Jefferson took up foreign business, Jefferson turned tired at the end of 1793. his duties as secretary in March his attention and creative genius to 1790, the department's entire bud- the domestic responsibilities of his The War Department get, including his own $3,500 salary, office. Among the most notable of amounted to $8,000. Jefferson had his achievements was a lengthy and On August 7, 1789, Congress e^ little to do at the outset of his term, enlightening report to the House of tablished the War Department and for few foreign nations maintained Representatives on the topic of within five weeks the Senate con- active embassies at the scat of gov- wszlghts and measures. A biogra- firmed Henry Knox as secretary of ernment, and the president had not pher observed that his conclusions, war. The department's original staff yet appointed permanent ambassa- on which the House took no action, included Knox and a clerk. A sec- dors to the major European posts. represented "an admirable combi- ond clerk was added a few years At that time a round-trip voyage to nation of arithmetic and common later. By 1800, when the govern- Europe required three months. seise." Jefferson spent a great deal ment moved from Philadelphia to With the exchange of correspon- of time in the administration of Washington, the agency's total cen- dence so delayed, resident diplo- patents, after Congress created that tral and field office staff had grown mats exercised a great deal of inde- system in 1790. Under the law, pat- to eighty. The department super- pendence. In March 1791 Jefferson ent applications were to be exam- vised the nation's two armories: complained to the minister at Ma- ined by a three-man board, com- one at Springfield, Massachusetts drid, "Your letter of May 6, 1789 is posed of the secretary of state, the and the other at Harpers Ferry, still the last that we have received, secretary of war, and the attorney Virginia. It also included a quarter- arid that is now two years old." general. As a practical, matter, the master's section, a fortifications Jefferson had served as U.S. min- work fell to the secretary of state. branch, a paymaster, an inspector ister to France from 1785 to 1789. After the attorney general ruled on general, and an Indian office. There he grew to appreciate that the propriety of the application The early record of the depart-

let this Constitution 15 19 ment was an unhappy one. Misman- Massachusetts to Petersburg, Vir- good, who earned $1500less than agement and incompetence charac- ginia. In September of that year half the annual salary rate of the terized its administrative actions. A Congress passed legislation tempo- department secretariesan assist- committee of the House of Repre- rarily continuing post office opera- ant, and a clerk. His principal duties sentatives,investigating thelate tions as they had existed under the were to designate post offices, to 1791 Indian defeat of General Ar- Articles of Confederation. Members select and maintain contact with thur St. Clair's forces, determined demonstrated no interest in creat- deputy postmasters, to award con- that it resulted from improper orga- ing a separate postal department, or tracts for carrying mail, and to keep nization of the expedition; lack ofof merging its functions with an accounts. The actual work of mov- troop training and discipline; andexisting department. The statute ing the mail fell to the deputy post- "delays consequent upon the gross simply provided that "the Postmas- masters and contractors, whose sal- and various mismanagements and ter General shall be subject to the aries were paid by local postal neglects in the Quartermaster's and direction of the President of the revenues. Retention of competent contractor's departments." Alexan- United States." deputy postmasters proved to be der Hamilton moved to take mat- In the years before 1789, the Con- the postmaster general's greatest ters into his own hands by request- federation Congress viewed the headache. Those part-time posi- ing that his allies in the Senate push post office as a vital source of gov- tions held few attractions, except in legislation giving his Treasury de- ernmental revenue. In 1790, the of- major cities. Osgood resigned in partment supervision of army sup- fice produced a $5,000 profit on 1791 rather than move with the rest ply services. Congress enacted income of $38,000. In 1792 Con- of the government from New York Hamilton's measure in May 1792. gress specifically placed the post to Philadelphia. The post e re- Henry Knox had served since office within the jurisdiction of mained a subordinate agency until 1785 as secretary of war under the Hamilton's Treasury Department, in 1825 when it achieved independent Articles of Confederation. Born in recognition of its revenue produc- status as a result of presidential Boston, Knox concluded his formal ing functions. This provoked a .o.,hes to control politically attrac- education at the age of 12. When protest from Secretary of State Jef- tive deputy postmaster appoint- the Revolutionary War began in ferson, who feixed that "the departments. 1775, he became an artillery colo- ment of the Treasury possessed al- nel. In the war's subsequent cam- ready such an influence as to The Attorney General paigns, Knox distinguished himself swallow up the whole executive as a military commander and be- powers, and that future presidents Like the postmaster general, the came a favorite of General Wash- (not supported by the weight of at` general served as a sec- ington Still, Knox proved to be a character which [Washington] pos ond-level presidential appointee clumsy civil.an administrator, un- sessed) would not be able to make during the federal government's dercut by a president who consid- head against this department." early years. President Washington ered military affairs his own great- By 1796, the department's profit- viewed Attorney General Edmund est strength. Plagued by the producing incentive yielded to an- Randolph, who held that post from pressure of gamblimi "this, Knox other essential functionits capac- 1790 to 1794, simply as his legal became preoccu. 4with land ity for communicating governmental adviser. Under the provisions of the speculation schemes t.dsigned to actions to all sections of the nation. 1789 Judiciary Act, which estab- restore his family's financial health. As Washington advised the House lished his position, Randolph was These ventures led to further in-of Representatives in 1792, "The to prosecute all suits in the Su- debtedness and numerous law circulation of i..olitical intelligence preme Court that involved the inter- suits. Knox resigned as war secre- through these vehicles is justly est of the United States govern- tary in 1794. reckoned among the surest means ment. That statute also directed of preventing the degeneracy of a him to provide legal advice to the The Post Office free government, as well as recom- president and department heads mending every salutary public mea- when they requested it At the out- in 1789 the nation's mail system sure to the confidence and cooper- set, as there were no cases before consisted of seventy-five post of- ation of all virtuous citizens." the Supreme Court, and as the pres- fices and 1,875 miles of post roads, In 1790 the post office consisted ident seldom sought his advice, running principally from Boston, of Postmaster General Samuel Os- Randolph had virtually nothing to

16 1: l'i I 191 this Constitution Site of the first American Foreign Olhce, 13 S. 6th Street, PhIladelph.'. 1781. established by Robert R. LIvh4ston, chosen by the Continental Congress to beSecretary of Foreign Ahlts. Library of Congress. do. Reflecting this status, the attor- achieved much for the government rigorous executive involvement, ney gereral received lesl, than half in a nation that less than a genera- was abandoned to the courts. De- the salary of cabinet secretaries tion earlier had suffered the depen- spite these shortcomings, the occa- and had no government staff. He dence of colonial rule. In these for sion for celebrating the Constitu- was expected to conduct official mativeyears,theexecutive tion's two hundredth anniversary is bus;ness from nis personal law of- agencies established a high level of due in great measure to the suc- fice and to maintain a private legal legitimacy and moral integrity, as cessful estrblishment of the early practice when he was not advising well as a degree of autonomy from executive dr artments. the president or other federal offi- close legislative direction. The pres- cials. On matters of major legal ident clearly exercised substantial consequence, President Washing- administrative authority and re- Suggested additional reading: ton frequently by-passed his attor- sponsibility for conduct of the new Marcus Cunliffe, The Amerman Heritage ney general in favor of Hamilton government's official business. He History of the Presidency (1986). and Jefferson. The secretary of effectively delegated authority to Ralph Ketcham, President Al"n Party: The state retained responsibility for su- department heads and through First American Presidency, 1789-1829 (1984). pervising federal district attorneys. them to their immediate subordi- Forrest McD.:,!1 Alexander Hamilton: A Despite his persistent efforts, Ran- nates and field representatives, Biography (IL -). dolph was unable to acquire law while retaining controls over their Dumas Malone, .1c7erson and 'ie. Rights of enforcement responsibilities. He performance. Despite Hamilton's Man (1951). left the position in 1794 to replace occasional intrusions into opera- Leonard D. White, Federa:ists: A Study in Administrative History, 1789-1801 Jefferson as secretary of state. tions of other departments, execu- (1948). tive agency leaders formed relative- Conclusion ly stable relationships based on precedent, law, and presidential dir- Richard A /Ian Baker has served as di- Washington, Hamilton, Jefferson, ectives. To be sure, the achieve- rector of the U.S. Senate Historical Of- and Knox, along with Osgood and ments of these men were nut un- fice since that office was established in Randolph, by and large built suc- touched by failure. The Post Office 1975. He was recent:y president of the cessfully on the executive structure was slow and unreliable. The Trea- Society for History in the Federal Gov- established under the Articles of sury and War departments re- ernment. He is the author of Conserva- tionPolitics:The Senate Career of Clin- Confederation and by Congress un- mained unable to devise an efficient tonP.Anderson and his Senate of the der the Constitution. These leaders system for procuring army supplies. United States: A BicentennialHistory of the early executive departments The patent system, after a period of will be published late he 1987. this Constitution ICI I 192 17 -.V)15PW ;2.-rA. !,i,Aif*WOVitik*Mite The Birth of the Federal Court System by DAVID EISENBERG, CHRISTINE R. JORDAN, MAEVA MARCUS, and EMILY F. VAN TASSEL

As the first justices of the Su-the United States was to survive. on appeal, subject to "such excep- preme Court were preparing to The lack of an independent judicia- tions, and under such Regulations undertake their duties, Presi- ry to decide controversies of a na- as the Congress shall make." Hence dent Washington wrote to them ex- tional and international nature con- the Constitution left to congres- pressing his feelings about the im- tributed to the Confederation's sional discretion the content and portance of the job they were about weakness. Congress had set up the extent of the appellate jurisdiction to begin. "I have always been per- very limited Court of Appeals in of the Supreme Court, and by impli- suaded that the stability and suc- Cases of Capture to hear disputes cation the entire jurisdiction of any cess of the National Government involving ships seized during the lower federal courts that might be and consequently the happiness of Revolution, but it did not meet reg- established. the People of the United States, ularly and had no power to enforce The text of Article III set down would depend in a considerable de- its decrees. certain basic principles, but the degree on the Interpretation and Exe- Thus the concept of a national bates during the ratification proc- cu;.'ion of its Laws," Washington ob- judiciary was a new one in the late ess indicated that in many states served. "In my opinion, therefore, it 1780s and its embodiment in Article there was dissatisfaction with the is important that the Judiciary Sys- III a cause of much concern. The broad language of the judicial arti- tem should not only be independent structure of the judicia.y was a cle and a strong demand for some in its operations, but as perfect as rock upon which the Constitution additicnal constitutional safe- possible in its formation." could founder when it went before guards. In his Federalist No. 78, the states for ratification; hence Alexander Hamilton downplayed Article III Federalist efforts had focussed on the importance of the federal judi- creating a constitutional frame- ciary by denominating it the "least The founders of the new nation work that would give wide latitude dangerous" of the three branches; believed that the establishment of a to Congress to flesh out the particu- in No. 80 he reminded his readers national judiciary was one of their lars of a court system. By creating a that ai1y inconvenience suggested most important tasks. Yet Article III structure that left all the details of by the generality of the plan should of the Constitution of the United form and content to congressional not condemn it, as States, the provision that deals wIth discretion, Federalists hoped to al- thenational legislaturewill the judicial brand of government, is layor at east postpone until after have ample authority to make markedly shorter than Articles I the Constitution was safely rati- such exceptions, and to prescribe and II which created the legislative fiedAnti-Federalist fears that the such regulations as will be calcu- and executive branches. Moreover, national judiciary would swallow lated to obviate or remove these at the Constitutional Convention up the state courts. inconveniences. The possibility the delegates spent relatively little Article III of the Constitution cre- of particular mischiefs can never time discussing judicial power. In- ated a federal "judicial Power" but be viewed, by a well-informed stead they left the resolution ofdefined it in only the broadest of mind, as a solid objection to a those issues on which they could terms. Section 1 provided that pow- general principle, which is calcu- not easily agree to the Congress er "shall be vested in one supreme lated to avoid general mischiefs that would come into being after Court, and in such inferior Courts and to obtain general advantages. the new frame of government was as the Congress may from time to Ideas as to what those inconve- approved. Thus the story of the time ordain and estatlish." Section niences might be, and how best to development of judicial power un- 2 specified the types of cases to deal with them began to circulate der the Constitution concerrs which the federal judicial power well before any lawmaker had so much more than an understanding extended, giving the Supreme Court much as dipped his quill into the of the text of Article III. original jurisdiction to hear "all inkwell. Soon after the Constitu- The Constitution had not sprung Cases affecting Ambassadors, other tional Convention adjourned in full blown from the crucible of rev- public Ministers and Consuls, and September 1787, people were ex- olution but instead resulted from a those in which a State shall be a pressing fears that an extensive fed- growing recognition throughout the Party." In all other categories enu- eral court system would prove too states that the Confederation was merated in the section, cases would expensive, drag hapless defendants inadequate and that a stronger na- originate in lower courts but could hlindreds of miles from home, and tional government was needed if be brought to the Supreme Court undermine state sovereignty and in- 18 al 19a' this Coneitution en Although little hard evidence exists to suggest that the Judiciary Act and the Bill of Rights were deliberately fashioned to complement each other, the fact is that together they took care of most Anti-Federalistconcerns about the judiciary under the Constitution.

dividual liberties. peals to the Supreme Court to cases that pleased no one completely, but Anti-Federalist forces led by two involving only large sums of money which could be changed as experi- VirginiansGeorge Mason, who also gained considerable support ence showed it to be necessary or had refused to sign the Constitu- during the ratification process of desirable. tion, and Richard Henry Lee, who 1787-1788. Another Anti-Federalist While the House of Representa- had refused to attend the Constitu- proposal, which came to have sup- tives began its work on the first tional Conventionbegan an import among some cost-conscious important piece of financial legisla- mediate campaign in the press and Federalists as well, was the use of tion, a revenue system, the Senate, in the state ratifying conventions to state courts as lower federal courts. acknowledging the pivotal role that have the federal judicial power Roger Sherman of Connecticut, a the federal court system must play amended before ratification of the member of the Constitutional Con- in the new government, began its Constitution. Recalling the harsh vention and soon to be a member of legislative work by appointing a treatment meted out by colonial the First Congress, endorsed just committee to prepare a judiciary governors and British Vice-Admiral- such an idea in his essay "A Citizen bill. The committee as formed on ty judges in the years prior to the of New Haven," published on Janu- April 7, 1789, consisted of one Sena- Revolution, Anti-Federalists were ary 1, 1787. Even such a leading tor from each state: Oliver Ells- particularly concerned with pro- Federalist as James Madison, on worth of Connecticut, William Pat- tecting the rights of the criminally the eve of his election to the House erson of New Jersey, Caleb Strong accused. They called for a bill of of Representatives in January 1789, of Massachusetts, Richard Henry rights to include protection of the acknowledged the need for some Lee of Virginia, Richard Bassett of right to a grand jury indictment, to a sort of bill of rights to protect indi- Delaware, William Maclay of Penn- speedy and public trial by an impar- vidual liberties and some sort of sylvania, William Few of Georgia, tial jury drawn from the vicinage restriction on appeals in the federal and Paine Wingate of New Hamp- vicinity in which the crime was courts. As early as March 15, 1789, shire. Charles Carroll of Maryland committed), to know the cause and the staunch Massachusetts FP 'eral- and Ralph Izard of South Carolina, nature of accusations, to confront ist Fisher Ames reported from New arriving late for the opening of Con- witnesses and compel them to ap- York to a friend in New England gress, were added to the roster six pear in court, to assistance of coun- that a judicial plan was being dis- days later. sel, to due process of law, and to cussed by three or four persons Only Ellsworth, Paterson and protection against self-incrimina- that would limit diversity suits and Strong, of the ten committee mem- tion, double jeopardy, excessive suits involving foreigners to cases bers on whom the judiciary's fate bail, fines, and cruel and unusual where the sum in controversy was depended, could claim any sizable punishment. In non-criminal cases, over five hundred dollars. He fur- technical legal expert= ,e; but most Anti-Federalists also wanted as ther commented that the great ob- had a strong political and legislative much jury protection for the indi- jectives of low cost and allaying background. Six had been members vidual as possible: jury trials in all state-federal jealousies might best of the Continental Congress (Ells- civil cases, protection for jury ver- be accomplished by narrowing worth, Few, Carroll, Izard, Wingate, dicts by limiting appellate courts' rather than expanding federal juris- and Lee). Five had been members power to review juries' factual de- diction. of the Constitutional Convention terminations, and the right to due (Ellsworth, Strong, Paterson, Bas- process under the law. The Judiciary Act of 1789 sett, and Few). Five had been mem- In addition to a written guarantee bers of their state ratifying conven- of individual rights, Anti-Federalists It fell to the First Congress to tion (Ellsworth, Strong, Few, favored a number of explicit pro- interpret the various sections of Bassett, and Izard). Nearly all had posals to limit the power of the Article III and to take into consider- held a variety of state offices. Politi- federal courts. At least half the ation the amendments demanded cally all were Federalists with the state ratifying conventions recom- by several states as the price of exception of Richard Henry Lee, a mended limiting or abolishing di- ratification. By drawing up the Bill leading Anti-Federalist and a harsh versity jurisdictiona jurisdiction of Rights and enacting the Judiciary critic of an expansive federal judi- based solely on the fact that the Act of 1789, the First Congress met ciary, and William Maclay, who was parties are citizens of different the concerns of many. It was able to elected by Pennsylvania to repre- states. A proposal to restrict ap- establish a working judicial system sent the state's agricultural inter- 20 i 9 this Constitution ests. The combination of extensive legal experience and firsthand knowledge of the Constitution seems to have been a key factor in determining who would write the bill; for it was the three men with both char- acteristicsEllsworth, Paterson, and Strongin whose handwriting the first draft appeared. Ellsworth, in particular, dominated the proceedings, from the first page of handwritten text, through the debates, to the final conferen,with the House. "This vile bill is a nild of his," fumed the irascible diarist, William Mac lay, "and he defends it with the care of a parent, even in wrath and anger." Mac lay's disgtun- tlement aside, Ellsworth was eminently qualified for the job of creat- Senator William Few of Georgia. Library of Congress. ing a bill that, after all the politics were exhausted, still had perforce to deal with a multitude of arcane non-criminal cases tried in federal review over state supreme court details. Ellsworth's background in- courts to those involving large decisions involving federal law. cluded service on the Continental sums of money. The structure cre- There seemed to have been a con- Congress Committee on Appeals ated by the committee included a sensus that only cases involving (giving him firsthand experience Supreme Court and two levels of substantial amounts of money with the problems of appellate ju- lower federal courts. The draft bill should be subject to federal appel- risdiction in a federal system); he specified a six-judge Supreme late review unless an interpretation had also been a member of the Court, to convene twice yearly in of the federal Constitution, a stat- Governor's Council and a state the national capital. During the ute or a treaty were in question. court judge in Connecticut, as well months when they were not sitting The drafting efforts of Paterson, as a member of the Constitutional as the Supreme Court, the justices Ellsworth, and Strong culminated Convention and the Connecticut were made responsible for hearing in a first reading before the full ratifying convention. Caleb Strong trials and appeals on circuit in the Senate on June 12. When printed had served in the Constitutional several states, sitting in pairs in for distribution and Senate debate, Convention and the Massachusetts conjunction with a district court the bill ran sixteen pages. District ratifying convention. William Pater- judge. The district court judges court jurisdiction, which was to son had been attorney general of would come from the courts estab- give rise to the greatest debate in New Jersey and had also been pre- lished in each state as federal trial both houses, had been fleshed out sent aPhiladelphia for the drafting courts, responsible primarily for in more detail. In addition to exclu- of the Constituion. hearing admiralty cases. The circuit sive original jurisdic .ion over all Within three weeksthe commit- court's jurisdiction in non-criminal civil admiralty and maritime cases, tee had drafted a set of gu'ding cases was restricted in most in- district courts were also given juris- principles that clearly reflected the stances to cases of at least three diction over some other lesser fed- concerns raised during the ratifica- hundred dollars or more. Appeals eral matters. The committee made tion debate over limiting federal to the Supreme Court could only be trial by jury protections explicit in court jurisdiction. The resolutions made in cases involving amounts veralsituations, among them indicated that the committee fa- above two thousand dollars. Final- :iminal cases and suits brought by vored a small judiciary and had ly, the committee gave the Supreme the United States fo: amounts over already adopted the idea of limiting Court explicit powers of judicial one hundred dollars. Similarly, jury this Constitution 196 21 the committee with Lee and who would join Lee in voting against the bill in its final form, did not support Lee on this point. Maclay joined with the Federalists in believing that the Constitution's scheme would be thwarted unless the federal courts could adjudicate other issues besides admiraltysuch as taxation, duties and imports, naturalization, coinage, counterfeiting, and treason. He also made the long- standing Federalist point that the state judges would not enforce federal laws. William Paterson may have advanced some of the additional reasons against using state courts as federal tribunals: his personal notes reflect that he thought the elective office of most state judges was not compatible with the Senator Charles Carroll of Maryland. Library of Congress. constitutional requirements of tenure during good behavior and fixed salaries. Paterson agreed that state trials were required in civil and impartially. State judges who held judges should not be relied upon to criminal cases in the circuit courts office only for specified terms enforce federal criminal laws or the and in original Supreme Court cas- could not be relied upon to be collect:on of federal revenue. The es involving individuals who were independent, and appeals to the Su- Federalist majority, many of whom United States citizens. It is clear preme Court would have to be al- had already rejected the notion of that Richard Henry Lee wanted his lowed in large numbers of cases to state courts as lower federal courts jury trial protections incorporated ensure the enforcement of national in their correspondence with con- at every possible point. interests. Moreover, some argued stituents, followed this view. After agreeing to report the com- that as soon as state judges exer- mittee bill, Richard Henry Lee then cised federal powers they would The Bill of Rights leveled an Anti-Federalist attack at become federal judges, with life the jurisdiction of the district tenure and secure salaries as man- At the same time that the Senate courts. On the opening day of de- dated by the second clause of Arti- was considering the judiciary bill, bate, June 22, Lee moved to limit cle III section 1. Why Lee chose to the House had taken 1.p the subject the district courts to admiralty ju- introduce his amendment after ap- of a bill of rights. As originally risdiction. Simply stated, Lee's pro- parently having gone along with the proposed by James Madison on posed amendment called for the committee in setting up a lower June 6 it included several amend- judiciaries of the several states to court system is not known. Perhaps ments pertaining to the judicial sys- serve as lower federal courts in Lee felt obligated to bring this pro- tem. Deemed most important were most instances. While many people posal to the attention of the full those protecting the rights of the believed that state courts could Senate because he had been so criminally accused: the right to handle the business that might be directed by the Virginia legislature. grand jury indictment, to a speedy assigned to lower federal courts, The oddity is increased by the fact and public trial by an impartial jury opponents of this view argued that that Virginia had just enacted a of the vicinage, to know the cause state control over the application of restriction on its courts forbidding and nature of accusations, to confederal law would result in dimin- them to try causes arising under the front witnesses and have compul- ished popular confidence that na- laws of the United States. sory process to produce them, to tional laws were being executed Even Maclay, who had been on assistance of counsel, to due proc-

22 this Constitution 197 ess, and to protection against self- incrimination, double jeopardy, excessive bail, fines, and cruel and unusual punishment. With the exception of the jury of the vicinage, which was struck by the Senate, all of these became parts of the Fifth, Sixth and Eighth Amendments. Madison's listalso included the three judicial system amendments considered most important by the Anti-Federalists: a guarantee of jury trial in common law cases (that is, suits governed by earlier judicial decisions rather than by statutes) above twenty dollars; a prohibition on the re-examination of the facts found in a case by the trial court except by the restrictive rules of the common law (which meant that jury decisions would not be easily overturned); and a monetary re- Justice Samuel Chase, painting by John Wes lay Jarvis. National Portrait Gael); Smithsonian Institution. striction on all appeals to the Su- preme Court. The Senate removed this last provision, but the first two cases. they considered the judiciary bill became the Seventh Amendment. Having postponed consideration and the bill of rights is a letter of The Senate also voted down a re- of the judiciary bill until after pas- September 24 from Madison to Ed- quirement for unanimous jury ver- sage of a bill of rights, the House mund Pendleton, discussing the bill dicts and the grant of a right to began debate on the former on Au- of rights. "It will be impossible I make jury challenges. Moreover, gust 27. Despite heavy speculation find to prevail on the Senate to that body refused to agree to what that Madison would lead the attack concur in limitation on the value of Madison considered the most im- he failed to do so and few substan- appeals to the Supreme Court," portant of all: a prohibition against tive changes were made. Tucker complained Madison, state violations of fundamental renewed his attempts, made with- which they say is unnecessary, rights; inoludLtg trial by jury. out success during the bill of rights and might be embarrassing in Although Madison had received debates, to eliminate the district questions of national or Constitu- House approval of his amendments courts. He was joined in this by tional importance in their princi- as the only ones to be discussed, Samuel Livermore of New Hamp- ple, tho' of small pecuniary members continued to attempt ad- shire; their proposal engendered amount. They are equally inflexi- ditions. The most extreme judicial more debate than any other issue, ble in opposing a definition of the amendments offered were those of but ultimately went down to defeat. locality of Juries. The vicinage Thomas Tudor Tucker of South In his closing speech on the bill, they contend is either too vague Carolina to limit lower federal delivered on September 17, Madi- or too strict, too vague if depend- courts to admiralty jurisdiction and son summed up the views of most ing on limits to be fixed by the to prohibit any federal jurisdiction of his colleagues that the bill, how- pleasure of the law, too strict if over diversity cases, suits involving ever imperfect, was the best they limited to the County.. .. The foreigners, and suits involving land could get at this late date in the Senate suppose also that the pro- grants from two different4ates. session, and that it could always be vision for vicinage in the Judicia- Unsuccessful in that effort, Tucker, changed as experience proved nec- ry bill, will sufficiently quiet the on the last day of debate again essary. fears which called for an amend- tried, but failed, to limit the lower The only direct evidence of inter- ment on this point. courts to hearing only admirality action between the two houses as On September 19 the Senate had this Constitution 198 23 proposed a compromise to the judi- mon law a the several states, they tablished with great particularity a ciary bill which allowed the trial may have wished merely to permit, limited jurisdiction for the district jury in capital cases to be drawn not to compel, the federal trial and circuit courts, gave the Su- from the county in which the crime courts to apply state common law. preme Court the original jurisdic- was committed. It was adopted by Still another possibility is that the tion provided for in the Constitu- the House on September 21, the bill's framers deliberately worded tion,and granted the Court same day that a joint conference the provision vaguely so as to leave appellate jurisdiction in cases from committee of Representatives Mad- its meaning open to future judicial the federal circuit courts and from ison, Sherman and Vining, and Sen- interpretation. Itsliteral meaning state courts where those courts' ators Ellsworth, Paterson and Car- notwithstanding, the thirty-fourth rulings had rejected federal claims. roll was appointed to resolve the section was written, like the other The decision to grant federal courts differences over the bill of rights. sections, in the spirit of reconciling a jurisdiction more restrictive than Three days later on September 24, national interests with those of the that allowed by the Constitution as the conference committee was various states. The enactment ofrepresented a recognition by the agreeing to limit constitutional pro- the Judiciary Act of 1789 marked Congress that the people of the tection to a jury of the district, the culmination of an effort to im- United States would not find a full- President Washington signed the plement federal law adequately and blown federal court system palat- Judiciary Act into law. Although yet in a manner least detrimental to able at that time. little hard evidence exists to sug- state policies and practices. For nearly all of the next century gest that the Judiciary Act and the the judicial system remained essen- Bill of Rights were deliberately Conclusion tially as established by the Judicia- fashioned to complement each oth- ry Act of 1789. Only after the coun- er, the fact is that together they The passage of the Judiciary Act tryhad expanded acrossa took care of most Anti-Federalist of 1789 was crucial to the growth of continent and had been torn apart concerns about the judiciary under the federal judiciary. The remarks by civil war were major changes the Constitution. of Associate Justice Samuel Chase, made. A separate tier of appellate Probably none of the Judiciary in a 1799 opinion, sum up its impor circuit courts created in 1891 re- Act's provisions captured the spirit tance. "The notion has frequently moved the burden of circuit riding of balancing state and federal inter- been entertained," noted Chase, from the shoulders of the Supreme ests that informed the creation of that the federal courts derive Court justices but otherwise left the Act better than Section 34. The their judicial power immediately intact the judicial structure. section stipulated, simply enough, from the Constitution; but the With minor adjustments it is the [tjhat the laws of the several political truth is that the disposal same system we have today. Con- States except where the Consti- of the judicial power (except in a gress has continued to build on the tution, treaties or statutes of the few specified instances) belongs interpretation of the drafters of the United States shall otherwise re- to Congress. If Congress has giv- first judiciary act in exercising a quire or provide, shall be regard- en the power to this court, we discretionary power to expand or ed as rules of decision in trials at possess it, not otherwise; and if restrict federal court jurisdiction. comon law in the Courts of the Congress has not given the pow- While opinions as to what consti- United States in cases where they er to us or to any other court, it tutes the proper balance of federal apply. still remains at the legislative dis- and state concerns vary no less While the First Congress may well posal. today than they did nearly two cen- have intended "laws of the several The generality of Article III of the turies ago, the fact that today's fed- states" merely as a shorthand for all Constitution raised questions that eral court system closely resembles the laws then in effect, including Congress had to address in the Ju- the one created in 1789 suggests the unwritten common law, itis diciary Act of 1789. These questions that the First Congress performed equally possible that the framershad no easy answers, and the solu- its job admirably. meant "laws" to refer only to stat- tions to them were achieved politi- utes, leaving the federal courts free cally. The First Congress decided The authors have all been associated to fashion common law remedies of that it could regulate the jurisdic- with the Documentary History of the Su- their own. Even if the drafters did tion of all federal courts, and in the preme Court of the United States, 1789-. intend that "laws" include the com- Judiciary Act of 1789 Congress es- 1800. 24 .19D this Constitution DOCUMENTS Ratifying the New Constitution by JOHN P. KAMINSKI

ong before the Constitutional Convention as- alone, and our acquiescence, depends our future sembled, Americans believed that they were in happiness and prosperity." a crisis. By mid-1786 some people thought that Many of these newspaper warnings were sponta- the country had to be divided into three smaller neous, but some were well orchestrated. Federalist confederacies or to return to a monarchical form David Humphreys, who operated two newspapers of government. George Washington wrote to John in Connecticut, wrote George Washington shortly Jay: after the Constitutional Convention adjourned:

What astonishing changes a few years are Indeed the well affected have not been capable of producing. I am told that even wanting in efforts to prepare the minds of respectable characters speak of a monar- the Citizens for the favorable reception of chical form of Government without hor- whatever might be the result of your Pro- ror. Frcm thinking proceeds speaking; ceedings.... Judicious & well-timed pub- thence to acting is often but a single step. lications have great efficacy in ripening George Washington to John Jay the judgment of men. 1 August 1786 David Humphreys to George Washington, 28 (George Washington Papers, September 1787 (George Washington Papers, Library of Congress) Library of Congress)

For a number of observers, the Constitutional Con-Confederation Secretary of War Henry Knox wrote vention offered the last chance to save the Confed-to the Marquis de Lafayette at about the same eration. Thus the American Museum magazine, time, "The minds of the people at large were fully published in Philadelphia, warned Americans in prepared for a change without any particular March 1787: specification!' The printers of the Northern Cen- tinel in Lansingburgh, New York, even admitted Many, very many wish to see an emperor that they "conceived it a duty incumbent on them at the head of our nation. And unless the to prepare the minds of their readers" for the re- states very soon give to Congress the nec- ception of whatever the Constitutional Convention essary powers to regulate trade and to proposed. Thus, even before the Constitution was form a systemoffinancefor the support published, Federalists had won a decisive battle in of national credit, such an event may take the war to ratify the new form of government. In place suddenly. It may not be at the dis- this atmosphere the delegates to the Constitutional tance of one short year. Convention signed the new Constitution on Sep- tember 17, 1787, ending four long months of secret With this crisis at hand, Americans were adviseddebates. to accept whatever the upcoming Constitutional One of the most important subjects decided in Convention might propose. A correspondent in thethe Constitutional Convention was how the new June 30, 1787, Massachusetts Centinel predicted Constitution would be adopted. The experience of ominously: the previous six years convinced many delegates that their recommendations, whatever they might Unless an energetick, permanent conti- be, would not obtain the unanimous approval of nental government is speedily established, the state legislatures as required by the Articles of our liberties will be set afloat in the con- COnfederation. fusion that will inevitably ensue. At pre- In recognition of this problem, the Virginia Reso- sent we ... areeveryday tottering on the lutions, introduced in the Constitutional Conven- brink of civil dissention.... It would be tion on May 29, 1787, provided that the Conven- better to embrace almost any expedient tion's recommendation ought first to be approved rather than to remain where we are. by Congrr:s and then be submitted to specially elected state ratifying conventions for their ap- The Petersburg Virginia Gazette for July 26 con- proval. Some delegates opposed this novel idea curred. "The Grand Foederal Convention it is and wanted to abide by the ratification procedure hoped will act wisely, for on their deliberations provided by the Articles. Others, however, pointed

200 this Constitution 25 - **44 11"CAN4S1405!t! r 4 "i'. V4f .':12100Pgi. 741.1614.41...""14;

js.1 71 r'I t'si* -,-'1193 ti Li; NAZI Yk; ;, - ..70`,1* ". QV t; 4,. -pc;.fitikia,,c to the utility of state conventions. They would be given by most of the state legislatures. Supporters single-house bodies, which made it easier to obtainof the Constitution wanted it sent to the states 'their approval than the approval of the state legis- with the approbation of Congress. On September latures, which required a vote in each of two 27 Virginia delegate Richard Henry Lee moved that houses. Some of the ablest men in the country a bill of rights be appended to the Constitution, were not members of the state legislatures and but the motion was rejected. Anti-Federalists knew could be elected to the ratifying conventions. Fur- that there was nothing they could do to prevent thermore, since the Convention's recommenda- Congress from endorsing the new Constitution. tions would probably reduce the powers of the But Federalists wanted to propagate the illusion states, the state legislatures be less likely that the Constitution was warmly supported by all than conventions to approve the new Constitution. of Congress they did not want opposition to ap- On June 5, James Wilson of Pennsylvania pro- pear officially either on the journals of Congress or posed that a plurality of the states be sufficient to in the resolution sending the Constitution to the adopt the Convention's recommendations, the firststates. Consequently a compromise was reached: mention of the abandonment of the unanimity pro-Congress would transmit the Cc.istitution to the vision of the Articles of Confederation. No one ob-states with neither approbation nor a minority jected. Twelve weeks later the Convention recon- expression of disapprobation. The resolution send- sidered the issue. Different delegates proposed thating the Constitution to the 5.';es thus read tersely: seven, eight, nine or all thirteen states be required to ratify the Constitution. Gouverneur Morris of Congress having received the report of Pennsylvania suggested that a smaller number of the Convention lately assembled in Phila- states be required for ratification if the states were delphia contiguous and a larger number if the ratifying Re' olved Unanimously that the said Re- states were dispersed. James Madison proposed port with the resolutions and letter ac- that seven or more states entitled to a majority of companying the same be transmitted to representatives in the first U.S. House of Represen- th4 several legislatures in order to be sub- tatives would be proper. This formula would "re- mitted to a convention of Delegates chosen quire the concurrence of a majority of both the in each state by the people thereof in con- States and people." formity to the resolves of the Convention At this point John Dickinson of Delaware asked made and provided in that case. whether Congress' assent was needed for ratification and whether the non-ratifying states could be Commenting on the congressional resolution, ignored. The Convention decided that Congress' George Washington observed: approval was not needed to adopt the new Consti- tution and that once nine state conventions had I am better pleased that the proceedings of ratified, the Constitution would take effect among the Convention is handed from Congress the ratifying states. These decisions played a criti- by a unanimous vote (feeble as it is) than cal role in the ratification process. if it had appeared under stronger marks On Tuesday, September 18, the Constitution was of approbation without it.This apparent printed as a six-page broadside in Philadelphia. It unanimity will have its effect Not every was also printed in the Philadelphia Evening one has opportunities to peep behind the Chronicle on the eighteenth and the next day in curtain; and as the multitude often jude five other Philadelphia newspapers. By the end of from externals, the appearance of una- October at least seventy-five newspapers had print- nimity in that body, on this occasn., will ed the proposal for a new form of government. be of great importance. The Constitution was read in Congress on Sep- George Washington to James Madison, 10 Oc- tember 20, 1787, and debate over it began a week tober 1787 (Special Collections, Signers of the later. Critics wanted the Constitution sent to the Declaration of independence, Amherst Col- states with the acknowledgment that the Constitu- lege) tional Convention had violated the Articles of Con- Reports of the public's reception of the Constitu- federation, the congressional resolution of Febru- tion were scattered at first. By mid-October, how- ary 21 calling the Convention, and the instruction 3ever, delegates to Congress were informing their

this Constitution 27 ?. 202 correspondents about the reaction to the Constitu-nor George Clinton) in the New York Journal on tion that had come in from around the country. September 27; an address by sixteen Anti-Federal- One of these reports was sent by Virginia delegate ist Pennsylvania assemblymen in the Philadelphia Edward Carrington to Thomas Jefferson, U.S. Min- Independent Gazetteer on October 2; and the first ister to France: of eighteen essays by "Centinel" (Samuel Bryan) also in the Philadelphia Independent Gazetteer on The project is warmly received in the October 5. Federalists countered with three essays Eastern States, and has become pretty by "An American Citizen" (Tench Coxe) in the generally a subject of consideration in Philadelphia Independent Gazetteer on September Town-meetings and other Assemblies of 26, 28, ar:d 29; the first of three essays by "Curtius" the people, the usual result whereof, are in the New York Daily Advertiser on September declarations for its adoption. In the Mid- 29; the first of two essays by "Caesar" (thought to dle States appearances are generally for be Alexander Hamilton) in the New York Daily it, bit not being in habits of assembling Advertiser on October 1; and James Wilson's pub- for public objects, as is the case to the lic speech in Philadelphia on October 6 in the Eastward, the people have given but few Pennsylvania Herald three days later. instances of collective declarations. Some The most extensive and thoughtful series pub- symptoms of opposition have appeared in lished explaining the nature of the new govern- New York and Pennsylvania. From the ment was The Federalist. Published between Octo- Southern States we are but imperfectly in- ber 27, 1787 and May 28, 1788, the eighty-five formedevery member from the Caroli- essays (written by Alexander Hamilton, James na's and Georgia, as well in Convention, Madison and John Jay) were published in newspa- as Congress, are ?Vann, for the new consti- pers and in a two-volume book editionthe first tution, and when we consider the ascen- volume containing thirty-six essays appeared on dency possessed by men of this descrip- March 22, 1787; the second volume with the re- tion over the people in those States, it maining forty-nine numbers on May 28. Federalists, may well be concluded, that the reception for the most part, believed that these essays pre- will be favorable. In Virginia there may sented the best analysis of the Constitution. Anti- be some difficultytwo of her members Federalists and some less appreciative Federalists in Convention whose characters entitle thought the essays were too "elaborate" and "not them to the public confidence, refused to well calculated for the common people." The actu- sign the reportthese were Colo[nel al impact of The Federalist on the ratification George/ Mason and Governor /Edmund/ struggle is uncertain, but their importance in Randolph, nor was that state without its American political thought has increased with the dissentients, of the same description, in passing of time. Congressthese were Mr. R.H. Lee & Mr. The crux of the issue dividing Anti-Federalists 1Williaml Grayson, but upon very oppo- and Federalists was well put by James Madison in site principlesthe former because it is his Federalist No. 51. too strong, the latter because it is too weak. If men were angels, no government would Edward Carrington to Thomas Jefferson, 23 be necessary. If angels were to govern October 1787 (Thomas Jefferson Papers, Li- men, neither external nor internal con- brary of Congress) trouls on government would be necessary. In framing a government which is to be Departing from the unanimity they displayed be- administered by men over men, the great fore the adjournment of the Constitutional Conven- difficulty lies in this: You must first ention, newspapers waged a veritable war over the able the government to control the gov- Constitution when it was published. On September erned; and in the next place, oblige it to 26, the Philadelphia Freeman's Journal published control itself. the first public criticism of the Constitution. This attack was followed by others: the first of seven Anti-Federalists agreed with Federalists that the essays by "Cato" (thought to be New York Gover- new government under the Constitution would be

21 2O3 this Constitution able to control the people, but they did not believe this Government to suppress these, or, for that the governmentwouldbe able to control any other purpose, the language it as- those in power. sumes is clear, express, and unequivocal, Anti-Federalists feared that the Constitution but when this Constitution speaks of priv- would create a national government that would ileges, there is an ambiguity, a fatal amend in either an aristocracy or monarchy. The Con- biguity;an ambiguity which is very as- stitution was, in their judgment, a counterrevolu- tonishing. tion that would overthrow the principles of the Speech in Virginia Convention, 5 June 1788 Declaration of Independence. The President and (Debates and Other Proceedings of the Con- the Senate were too powerful. The Senate had leg- vention of Virginia (3 vols., Petersburg, Va., islative, executive and judicial powers, thus violat- 1788-891, I, 58) ing the commonly accepted theory that there ought to be a complete separation of powers Consequently, Anti-Federalists wanted the re- among the different branches of government. The establishment of Article II of the Articles of Con- House of Representatives was too small and thus federation which provided that each state retained would not adequately represent all segments of its sovereignty and independence and that all pow- American society. Terms of office were too long ers that were not expressly delegated to Congress and Congress' power to regulate federal elections were reserved to the states. Anti-Federalists also was dangerous. The provisions in the Articles of charged that various provisions of the Constitution Confederation for recall of legislators and for the recognized,ondoned, protected and even encour- mandatory rotation of office for all elected officialsaged slavery. had been abandoned. Congress also had other dan- But the most serious Anti-Federalist charge was gerous powers, some of which were undefined that the Constitution lacked a bill of rights. This (the "necessary and proper" clause and the generalomission was especially dangerous because the welfare clause). Patrick Henry warned his fellow Constitution provided that the Constitution, trea- Virginians in the state's ratifying convention: ties, and laws made in pursuance of the Constitu- tion were supreme no :natter what state judges There are sufficient guards placed /in the said or what was in state laws or constitutions. Constitution] against sedition and licen- Thus, despite Federalists' assertions to the con- tiousness: For ven power is given to trary, state bills of rights were worthless when

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this Constitution 204 21 t were ready to make a report. The Assembly fixed 11 o'clock the next morning as the time to consider the report. Benjamin Franklin, President of the Pennsylvania Supreme Executive Council, led the delegation in to the Assembly chamber and presented the Constitution saying that it would "tend to promote the happiness and prosperity of Penn- sylvania and the United States. For the next ten days the Assembly debated whether a state convention should be called immediatelyeven before Congress had officially transmitted the Constitu- tion to the statesor whether the Assembly they conflicted with federal law. should postpone such an important issue until af- Federalists responded the Constitution ter the state elections that were scheduled to take would create a confederated repubac with powers place on October 9. divided among le*lative, executive and judicial The decision was political: Federalists had a branches that would check each other. They be- comfortable majority in the outgoing Assembly and lieved that the Constitution was the fruition of the thus they would have no trouble calling a conven- Revolution. After all, didn't the Declaration of In- tion that would meet in-.Federalist- dominated Phil- dependence condone the right of revolution? The adelphia. Anti-Federalists, aware of their weakness Constitution was, in essence, a peaceful revolution in the Assembly, sought to delay the decision on a in favor of government. Federalists argued that the convention until after the state elections, hoping new government would have only delegated pow- that they would win control of the legislature. On ers, and thus a bill of rights was unnecessary and September 28 a vote was taken and a convention maybe even dangerous because every right re- was authorized; the Assembly, however, adjourned tained by the people could not be listed. The for the day without passing the necessary mea- unanimity of the Constitutional Convention sures for implementing the call of the convention. demonstrated that the Constitution was an accom- Anti-Federalists tried to take advantage of the gap. modation among many jarring interests. The great When the Assembly reconvened the next morning, men of the countryled by George Washington the last scheduled day of the legislative session, and Benjamin Franklin favored the Constitution, Anti-Federalists boycotted the session, thus depriv- while opponents were labeled selfish state office- ing the Assembly of the two-thirds majority it holders, demagogues, debtors, Shaysites, Tories, needed for a quorum. The sergeant at arms was and worse. sent to corral the necessary seceding assemblymen Federalists believed that the Constitution would to obtain a quorum. This officer reported that he secure personal and economic liberties. If the Con- had chased Anti-Federalists up and down the stitution were rejected, they argued, anarchy streets and alleys of Philadelphia, but he returned would ensue; and, using the circular theory of gov- empty-handed. A mob of Philadelphians, however, ernment, it would be followed by the usurpation ofwas not so timid. Two seceding Assemblymen power by a tyrant who would promise stability but, were forcibly returned to the chamber and the nec- in time, would establish despotism. Once the new essary implementation legislation was enacted for government was functioning, defects in the Consti- the convention. tution could be corrected through its own process Pennsylvania held its election for convention of amendment. delegates on November 6, 1787. Even before the Pennsylvania was the first state to consider the convention met in Philadelphia on November 20, it Constitution. The Constitutional Convention met inwas widely known that two-thirds of the delegates Philadelphia in Independence Hall, the same build- were ardent Federalists. The convention debated ing in which the Pennsylvania Assembly was meet- the Constitution by paragraphs for three weeks being. Thus when the Convention adjourned on Sep- fore voting 46 to 23 to ratify on December 12. The tember 17, the Pennsylvania delegates inur ediately minority was not allowed to enter its objections on sent a letter to its legislature informing it that a the convention journals and a proposed bill of new Constitution had been proposed and that they rights was similarly kept off the record. Anti-Feder-

IN,Cr 11:)- 205 ao this Constitution 11.4

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alists had lost the first major battle in the sate conventions, but Federalists were hurt by the tactics they had used to obtain ratification. Even though the convention had ratified the Constitu- tion, Pennsylvania's population still remained fiercely divided, and a petition campaign was begun to undo the convention's action. On December 7, five days before Pennsylvania ratified, Delaware's convention adopted the Consti- tution unanimously. New Jersey and Georgia likewise ratified without dissent before the end of 1787, while Connecticut ratified by a three-to-one majority on January 9, 1788. The stage was thus these amendments, Federalist leaders approached set for the most important event in the entire rati- Governor Hancock, their arch political enemy, ask- fication struggle, the Massachusetts convention. ing him to present the amendments to the conven- On January 3, 1788, ten of Boston's twelve dele- tion as his own. In return, Federalists promised not gates to the Massachusetts convention attended a to run a candidate opposite him in the spring gu- dinner caucus. Anti-Federalist Governor John Han- bernatorial elections and to support his election to cock, ostensibly ill with the gout, declined the invi-the Vice Presidency of the United States. Then, if tation. But Sam Adams did come, and he there Virginia did not ratify the Constitution (leaving broke his long public silence on the Constitution. George Washington ineligible), Hancock would be Adams declared that he opposed the Constitution the obvious choice for President. and would work against it in the state convention. The bait was strong. Hancock's gout improved; In response to this potent threat, Federalist lead-he attended the convention and proposed "his" ers called a meeting of Boston's tradesmenAd- amendments. Sam Adams, the consummate politi- ams' base of political support. The four hundred cian, seeing that ratification was now inevitable, tradesmen who assembled did not agree with Ad- jumped on the bandwagon. The final vote was tak- ams; instead they expressed strong support for the en on February 6 and the convention ratified the Constitution, and they warned the Boston dele- Constitution by a narrow nineteen-vote margin- gates that a vote against the Constitution would be 187 to 168. "contrary to the best interests, the strongest feel- Federalists nationwide were relieved. James ings, and warmest wishes of the Tradesmen of the Madison found "the amendments ... a blemish, but town of Boston." ... inthe least offensive form." Anti-Federalists Still, the convention, elected between mid-No- such as Patrick Henry scoffed that Massachusetts vember 1787 and early January 1788, reflected had "put the cart before the horse." But after see- Massachusetts' Anti-Federalist majority. When the ing Massachusetts' amendments, Thomas Jefferson convention assembled, Governor Hancock was changed his mind about the best procedure to fol- elected president. Again, however, his gout flared low in ratifying the Constitution: up (a familiar reaction to difficult political problems) and he stayed away. With him absent, Feder- My first wish was that 9 states would alists were able to make significant inroads into adopt it in order to ensure what was good the large Anti-Federalist majority, but they realized in it, & that the others might, by holding that if a vote were taken, the Constitution would off, produce the necessary amendments. still be defeated. But the plan of Massachusetts is far pref- In an effort to win over the votes to tip the bal- erable, and will I hope be followed by ance, Federalists decided to recommend amend- those who art yet to decide. ments to the Constitution. The bargain they pro- Thomas Jefferson to Edward Carrington, 27 posed was that the convention would ratify the May 1788 (Thomas Jefferson Papers, Library Constitution unconditionally, but it would instruct of Congress) the state's representatives and senators in the first federal Congress to support certain amendments As it turned out, Jefferson's second wish came to the Constitution. To insure a warm reception for true; six of the remaining seven states used the

this Constitution 266 31 then with you, will in my opinicn, determine the fate of the Constitution, and with it, whether peace and happinessor discord and confusion is to be our lot." Maryland Anti-Federalists proposed a postponement so they could confer with the Anti- Federalist Virginians, whose convention was scheduled for June. Washington feared that a Maryland adjournment might "stagger" South Caro- lina. North Carolina would side with Virginia and everyone knew that New York was strongly opposed to the Constitution. Thus, knowing the importance of their states, Federalists in Maryland Massachusetts technique of ratifying the Constitu- and South Carolina (whose convention started on tion unconditionally, at the same time proposing May 12) resisted delay. They used their majorities amendments. This process saved the Constitution. in both conventions to steamroll the Constitution Massachusetts' decision was the turning point in through by votes of 63 to 11 and 149 to 73. Mary- the ratification struggle. land's convention had met for only nine days and But the impact of Massachusetts' action was not South Carolina's for only thirteen. quickly apparent. Reports that had been circulating The second session of the New Hampshire con- of North Carolina's ratification proved false. Then, vention then met on June 17 and four days later the New York legislature barely passed a resolu- ratified the Constitution, recommending amend- tion calling for a state convention, illustrating the ments by a vote of 57 to 47. New Hampshire was difficulty the Constitution faced in that state. Lu- the crucial ninth state. Whatever else happened, ther Martin's accounts of the serious divisions the Constitution had been adopted. within the Constitutional Convention became wide- But even with nine states assenting to the Con- ly publicized at the same time revealing that the stitution, the Union would have difficulty surviving Convention had not been so unanimous as the without Virginia and New York. The refusal of public had been led to believe. Then, on February these two large states to ratify the Constitution 21, 1788, a bombshell hit. The seemingly safe New would have divided the new union into three enti- Hampshire convention adjourned wiriout ratifying tiesNew England, the Middle States, and the ex- the Constitution. Federalists all over tne country treme South. Everyone recognized the importance had thought that the Massachusetts ratification sig- of Virginia and New York, and both Federalists and nalled the end to the struggle. No one dreamt that Anti-Federalists exerted their str "ngest effort in a problem would arise in New Hampshire, which these states. was expected to follow Massachusetts' lead. In Virginia, George Mason and Patrick Henry led Worse, Federalists in the New Hampshire conven- the Anti-Federalists. Henry urged the convention tion reported that a vote in the convention would not to be swayed by the other states. If the Consti- have meant a rejection of the Constitution; a ma- tution was "wisely constructed," he counseled, "let jority of delegates either opposed the new govern- us receive it." But, he continued, ment or were instructed by their towns to vote against it. A month later, on March 24, a statewide shall its adoption by eight States induce referendum in Rhode Island overwhelmingly de- us to receive it, if it be replete with the feated the Constitution 2,708 to 237. most dangerous defects? They [Federal- The events of February and March had a sober- ists' urge that subsequent amendments ing effect on Federalists. Their bandwagon had are safer than previous amendments, and been halted. Now, they saw a need for strenuous that they will answer the same ends. At efforts to ratify the Constitution in the next sched- present we have our liberties and privi- uled state conventions in Maryland and South Car- leges in our own hands. Let us not relin- olina. quish them. Let us not adopt this system Maryland's convention began on April 21; the till we see them secured. There is some outcome was critical. George Washington wrote to small possibility, that should we follow a Maryland Federalist, "Decisions, or indecisions the conduct of Massachusetts, amend-

32 20 7 this Constitution ments might be obtained. There is small possibility of amending any Government; but, Sir, shall we abandon our most ines- timable rights, and rest their security on a mere possibility? Speech in Virginia convention, 7 June 1788 (Virginia Debates; I, 142-43)

Without substantial amendments, Virginia Anti- Federalists believed that the Constitution would "destroy the State Governments, and swallow the liberties of the people." In response to these arguments, James Madison and Governor Edmund Ran-ation Congress passed an ordinance providing for dolphnow a convert to the Federal sidemain- the first federal elections, and on March 4, 1789, tained that the Confederation was "too defective the first Congress under the Constitution assem- to deserve correction." "Let us take farewell of it," bled. The two remaining statesNorth Carolina they advised, "with reverential respect, as an old and Rhode Islandratified the Constitution in No- benefactor. It is gone, whether this House says so, vember 1789 and in May 1790, respectively. or not." The Constitution alone could save the It had taken a long, bitter struggle to ratify the Union, Madison and Randolph claimed. And they Constitution. Amazingly, however, the revolution in prevailed. A small majority voted 89 to 79 on June favor of government was accomplished peacefully. 25, 1788 to ratify the Constitution unconditionally, The opposition was loud enough to convince the recommending amendments. new Congress under the Constitution to propose a Virginia's acceptance brought New York's. Over bill of rights which was soon adopted by the two-thirds of New York's convention opposed the states. Anti-Federalists had made a significant con- Constitution; but, after hearing about ratification intribution. In the words of Thomas Jefferson, there New Hampshire and Virginia, a group of Anti-Fed- had "been opposition enough to do good, & not eralists broke away from Governor George Clin- enough to do harm." ton's Anti-Federalist party and voted on July 26, The country had, in essence, gone through a sec- 1788 for unconditional ratification, with amend- ond revolution. Americans had exchanged a weak ments recommended. New York's support, they be-confedera.ion of states for a potentially strong na- lieved, was needed in the first federal Congress to tional government. The new Constitution, unlike get a bill of rights and the other amendments pro- the Articles of Confederation, could realistically be posed. Without New York's participation in Con- amended and could be regularly interpreted by the gress no amendments would be submitted to the judiciary. With these two safety valves, the Consti- states and New York would be isolated. It was, ac-tution would endure, alive and vital. cording to Anti-Federalists,

our object to improve the plan proposed: Suggested additional readings: to strengthen and secure its democratic Max Farrand, The Framing of the Constitution of the United features; to add checks and guards to it; States (1913). to secure equal liberty by proper Stipula- Merrill Jensen, The Making of the American Constitution (1964). tions to prevent any undue exercise of Jackson Turner Main, The Antifederalists: Critics of the power, and to establish beyond the power Constitution, 1781-1788 (1961). of faction to alter, a genuine federal re- Carl Van Doren, The Great Rehearsal- The Story of the Making public. and Ratifying of the Constitution of the United States (1948). Nathan Dane to Melancton Smith, 3 July 1788 (John Wingate Thornton Collection, New En- gland Historic Genealogical Society, Boston, Mass.) John P. Kaminski is the director of The Documentary His- tory of the Ratification of the Constitution and The Center Thus the people of the United States created a for the Study of the American Constitution at the Univer- viable union. On September 13, 1788, the Confeder- sity of Wisconsin-Madison.

this Constitution 33 ( 0". State Constitutions: Pillars of the Federal System by A. E. DICK HOWARD

State constitutions spring from of choosing a governor, the number not explicitly spelled out in the a tradition distinct from that of of houses in the legislative branch United States Constitution. Gradu- the document drafted at Phila- (some were bicameral, others uni- ally, after 1776, courts in several delphia' in 1787. A study of state ctmeral), legislators' terms of of- states began to declare and exer- constitutions, their history, and fice, and provisions for the fran- cise the power of judicial review their development reveals basic as- chise. (thus anticipating John Marshall's sumptions, a philosophical frame- The drafters of the first state reasoning in his 1803 decision in work, a level of discourse, and an constitutions were, however, in Marbury v.Madison). array of usages that set them apart general agreement on many major In the two centuries since the from the United States Constitu- issues. Those framers did not pro- adoption of the first state constitution. Hence, as the na.ion cele- duce abstract tracts on political tions, the evolution of those docu- brates the Bicentennial of the feder- theory; they grounded the first con- ments has reflected the great move- al document, state constitutions stitutions in Americans' experience ments andcontroversiesof merit special attention in their own during the colonial era. Thus state American history. The early years right. constitutions reflected a belief in of the nineteenth century brought limited government, the consent of the pressures of Jeffersonian and Early State Constitutions the governed, and frequent elec- Jacksonian democracy, growth in tions. They incorporated a Whig the country's population and econ- In 1776, when Virginia's conven- tradition emphasizing direct, active, omy, and westward migrations. tion instructed its delegates in Con- continuing popular control over the States rewrote their constitutions gress to introduce the resolution legislature in particular and over in ways that reflected the impera- for independence, it set to work on government in general. tives of that age. Revisers progres- a frame of government and a decla- Notwithstandingdeclarations sively abolished property qualifica- ration of rights. George Mason, of about the separation of powers, the tions for voting, more nearly Fairfax County, played a central first state constitutions in fact equalized representation in state role in the drafting of both docu- made the legislature the dominant legislatures, gave governors more ments. His Declaration of Rights branch of government. In the years power and states, placed limits on provided the model for the bills of before the revolution, governors legislative powers (as people dis- rights subsequently adopted in the and judges, appointed by the covered that legislators, too, were other states, and it foreshadowed Crown, often provoked popular capable of actions inimitable to the the Bill of Rights added to the Unit- mistrust. The American colonists common good), and made explicit ed States Constitution in 1791. saw their legislatures as spePidng provisions for the revision and Revolutionary conventions or for the people's liberties. Not sur- amendment of constitutions (a sub- legislative assemblies drafted the prisingly, legislative primacy car- ject often neglected in the original first state constitutions, usually ried over into the original state con- documents). A central theme of without referendum. At that early stitutions. state constitutional reform in the stage in thinking about constitu- State governors were, by ccn- early decades of the nineteenth tions, the notion of a convention trast, virtual ciphers. Only in New century was, in short, the extension elected for the express purpose of York and Massachusetts did the of popular control over govern- drafting a constitutiondistinct people elect the governor. In the ment. from bodies elected to enact ordi- other states the legislature elected The years of Civil War and Re- nary lawswas not well developed. the governor, who lacked the pow- construction stirred another period Massachusetts set a pattern for the er of veto and who executed the of great activity in the writing and future when, in 1780, its citizens laws with the advice of a council of rewriting of state constitutions. Be- elected a convention specifically state chosen by the legislature. tween 1860 and 1875, eighteen charged with drafting a constitution Nor did state courts, at the out- states adopted new or revised con- which was then submitted to the set, have much more status. The stitutions. Revisers focused on is- voters for their approval. first state constitutions did not for- sues of economic regulationgov- The first state constitutions dif- mally embody the principle of judi- ernmental responses to the building fered in some specific provisions. cial reviewthe power of a court of railways and the activities of For example, states followed vary- to declare a legislative act unconsti- banks and corporations. In the ing practices regarding the manner tutionaljust as that doctrine was South, race was an issue. Recon-

34 209 this Constitution I State constitutions reflected a belief in. limited government, the consent of the governed, and frequent elections. They incorporated a Whig tradition emphasizing direct, active, continuing popular control over the legislature in particular and over government in general.

struction constitutions obliged for- the concept of public administra- stitutional law. Several factors in- mer Confederate states to respect tion promoted by, among others, duced this decline of interest in the rights of the newly freed slaves. Woodrow Wilson. state constitutional law. Too often With the end of Reconstruction, In the twentieth century, "good the states had an unimpressive rec- southern states rewrote their con- government" groups sought to ord in protecting individual rights. stitutions,ofteninstitutionalizing "streamline" state government. Guarantees in state constitutions "Jim Crow" and achieving wide- They argued that state constitu- frequently went unenforced by spread disenfranchisement of tions should be revised to give state courts. In southern states, for blacks through registration and oth- more power to the governor, make example, courts interpreted state er requirements. fewer offices elective (by way of constitutions as allowing legisla- the "short ballot," thus concentrat- tures to undertake a barrage of Twentieth Century ing more power in the executive "massive resistance" measures (in- branch), focus control of the state's cluding even the closing of public State constitutions mirrored the administration, and create a civil schools) aimed at preventing deseg- era of populism and progressive service. The paradigm of this kind regation in public education. reform movements. Progressives of state charter is the National Mu- The activism of the Warren Court pressed for forms of direct govern- nicipal League's Model State Con- further eclipsed state constitutional mentthe initiative, referendum, stitution (first drafted in 1921 and law. During the tenure of Earl War- and recall (Oregon leading the now in its sixth edition). ren, the Supreme Court became an way). By the mid-1920s, 19 states Between 1921 and 1945 no state engine of reform, decreeing reap- had adopted constitutional provi- adopted a new constitution, but the portionment of legislativeseats, sions for popular initiative of legis- years since World War II have been mandating an end to racial segrega- lation, 14 states had provided for active ones. Some of the impetus tion in public programs, and work- initiative of constitutional amend- has come from the states' greater ing something of a revolution in ments, 21 states for referenda, and role in the delivery of services (of- criminal justice. During those high- ten states for recall measures. ten implementing federal pro- ly charged years, state courts could Concurrently with the rise of ex- grams). In 1955 the Kestnbaum do little more than try to keep pace panded notions of the roles of gov- Commission declared that state with the high court's opinions. State ernment, including the delivery of constitutions made it "difficult for judges had little time or opportuni- services, some observers began to many states to perform all of the ty to see to the development of seek to recast state constitutions in services their citizens require, and doctrine under state constitutions. a managerial mode. Where the first consequently have frequently been The academic community played state constitutions had emphasized the underlying cause of state and a part in emphasizing the primacy direct and active popular control municipal pleas for federal assist- of federal constitutional law. Many over government, the managerial ance." professors and scholars, esp'.:cially model emphasized efficiency and Another impetus for state consti- those writing about constitutional rational administration. tutional revision came with reap- law, aspire to a national reputation. A managerial conception of gov- portionment of state legislatures. The United States Constitution and ernment has its roots in the think- The Supreme Court's "one-person, the Supreme Court are popular sub- ing of Alexander Hamilton. He one vote" decision in Reynolds v. jects for commentary. With such stressed the importance of execu- Sims (1964) made it easier to win orientation to national issues, state tive leadership, preferring, in the acceptance of moves to rewrite constitutional law tended to be ne- national government, more central- state constitutions. Between 1950 glected. ization of power under a strong and 1980 twelve states (among Recent years, however, have president. (On this issue, of course, them Virginia) adopted new consti- brought a revival of interest in state Hamilton and like-minded Federal- tutions. constitutional law. While the Bur- ists clashed with Jeffersonian Re- ger Court (1969-1986) was no publicans of the time.) In the nine- State Constitutional Law stranger to activism (the Court's teenth century, managerial ideas of controversial abortion decisions government gained ground under During much of the twentieth being examples), the headlong pace the influence of Bismarck's Germa- century, judges, lawyers, and schol- of the Warren years seemed to ny and, in the United States, with ars have often neglected state con- slacken. In criminal justice deci- this Constitution 35 o 7 2 Lawyers are realizing the importance to their clients of understanding that a state's constitution may, in a given case, offer an attractive alternative to reliance solely on the United States Constitution.

sions, in particular, the Court cut spirit. In the 1960s, mistrust at- based upon the United States Con- back on earlier trends to impose tached to state courts (at least, stitution. Indeed, if a state court national standards on state criminal such seemed the tone of many Unit- decides that a state statute or other procedures. ed States Supreme Court opinions). action violates the state constitu- The states themselves have be- Today, state courts are far more tion, such a ruling, of itself, raises come healthier entities. Once again professional and much better no federal question, the United the states merit the label of social equipped to do their job than was States Supreme Court will decline and political"laboratories"that true even a few years ago. State review of the case (citing the "ade- Justice Louis Brandeis once at- courts now have professional ad- quate and independent state tached to them. Partly as a result of ministrators, and respected institu- ground" doctrine). the reapportionment of state legis- tions (such as the National Center Examples of state courts' looking latures, the states have undertaken for State Courts at Williamsburg) to state constitutions suggest the bolder attacks on the great prob- promote the welfare of state courts. range of possibilities. Sometimes lems of our time. State government One finds ample evidence that the state courts use state constitu- has been rev"Ialized, its administra- state courts have begun to take tions where the United States Con- tion improved, its spirit refur- state constitutions seriously. Some stitution has little or nothing to say bished. of the country's leading state about the problem at hand. Other Trends in national politics in the judges, such as Oregon's Hans times a state court will use the state 1980s have obliged the states to Linde and California's Stanley charter in an area in which federal accept more responsibility. Presi- Mosk, have called for a renaissance doctrine exists but there is room del.& Reagan's calls for deregula- of state constitutional law. Scholars for additional state interpretation. tion, for a "new federalism," and for and law reviews no longer neglect Several areas of adjudication will less stress on the role of the Feder- the subject. Lawyers are realizing help illustrate. al Government have spotlighted the the importance to their clients of Economic regulation. Since place of the states in the American understanding that a state's consti- 1937, the Supreme Court has polity. State governors more often tution may, in a given case, offer an backed off from using the Four- become national figures; our two attractivealternative to reliance teenth Amendment's due process most recent presidents were gover- solely on the United States Consti- clause to oversee how the states nors before assuming the nation's tution. order their economic affairs (al- highest office. A state court, in interpreting a though, of course, questions may Virginia's Commission on Consti- state constitution, need not tie its arise under the commerce clause or tuional Revision, reporting in 1969 reading of that document to the some other provision of the Consti- to the Governor and General As- meaning of the Federal Constitu- tution). Some state courts, howev- sembly, caught the spirit of the tion. A state judge must, of course, er, continue to review economic times. The Commission premised enforce the United States Constitu- regulations closely. Nebraska's Su- its report on a belief "that the peo- tion, just as does a federal judge. preme Court, for example, has said ple of Virginia want to shape their But the state and federal constitu- that it will review state statutes, own destiny, that they do not want tions are separate documents, each such as those restricting competi- to abdicate decisions to others, to be enforced in its nwn right, tion, to guard against "pressure such as the Federal Government, independently of the other. groups which seek and frequently and that therefore they want a con- Thus, while a state court cannot secure the enactment of statutes stitution which makes possible a do less than the Federal Constitu- advantageous to a particular indus- healthy, viable, responsible state tion requires, the court can look to try." government." Even though many the state constitution for impera- Church and state. In a series of provisions in Virginia's Bill of tives quite beyond anything found decisions the Supreme Court has Rights have parallels in the Federal in federal constitutional law. The invalidated state programs channel- Bill of Rights, the commissioners United States Constitution places a ing state money to the support of saw "no good cause not to look first floor beneath which a state and its religious schools. In this area, the to Virginia's Constitution for the courts may not fall. But the federal Court has been quite strict. The safeguards of the fundamental document does not preclude a justices have, however, recognized rights of Virginians." state's shaping a body of state con- that some programs, such as reim- State courts, too, have caught the stitutional law independent of that bursement for the cost of bus trans-

36 211 this Constitution M I N U TES OF THE CONVENTION 0 T II E COMMONWEALTH

O P N N S Y L V A N IA, WHICH COMMENCED AT PHIL A.DELPHI A, On TUESDAY the twenty-fourth Day of NOVEMBER,

THE YEAR OF OUR LORD ONE THOUSAND SEVEN HUNDRED AND IGNTV-NIZIF, FOR TUE PIJRPOSE OF REVIEWING,

AND IF THEY SEE OCCASION, A I.T.ERING AND AMENDING, T H I

CONSTITUTION-OF THISSTATE.

Minutes of the Pennsylvania State Constitutional Convention, November 24, 1789. The HistoricalSociety of Pennsylvania.

portation for children attending pa- grams may, however, be struck general language of the First rochial schools, are permissible down under some state constitu- Amendment. under what has come to be called tions, many of which have quite Criminal procedure. Through a the "child benefit" theory (that the detailed and specific prohibitions process of "incorporation," most of program is seen as aiding the stu- against aid to religions, provisions the provisions of the Bill of Rights dents, not the schools). Such pro- whose specificity contrast with the (originally adopted to bind the Fed-

this Constitution 212 37 11111MIMMI In state constitutions, the people of the states record their moral values, their definition of justice, their hopes for the common good. A state constitution defines a way of life.

eral Government) have come to ap- have detailed provisions on educa- state constitutional grounds. ply to the states. Even in this highly tion. They typically address at "federalized" area of constitutional length the powers and duties of the A Federal System law, state constitutions play a role. state and of localities in creating In some instances a state constitu- and running school systems. The No function of a constitution, es- tion may explicitly require a stan- Supreme Court of New Jersey con- pecially in the American states, is dard not laid down in federal cases. cluded that the state constitution's more important than its use in de- For example, whereas the Supreme mandate of "a thorough and effi- fining a people's aspirations and Court has said that states may have cient system of public schooling" fundamental values. In state consti- juries of fewer than twelve jurors in required equal educational opportu- tutions, the people of the states criminal cases, most state constitu- nities for the state's children. Thus record their moral values, their def- tions expressly command a jury of the court struck down a public inition of justice, their hopes for the twelve. In other instances, a state school financing system that relied common good. A state constitution court may construe a state constitu- heavily on local taxation. defines a way of life. George Mason tional provision similar to a federal Judicial decisions based on a understood that precept when, in provision as implying a higher stan- constitution, whether state or fed- drafting Virginia's Declaration of dard of conduct. Thus courts in eral, trigger inevitable tensions be- Rights in 1776, he wrote that "no some states have read the state ban tween two principles, both built free government, nor the blessings on unreasonable searches and sei- into our system of government. One of liberty, can be preserved to any zures as forbidding police actions is the principle that decision people" but by a "frequent recur- that might be upheld under the Su- should be made by agents ultimate- rence to fundamental principles." preme Court's Fourth Amendment ly accountable to the society's elec- A study of constitutionalism in decisions. tors. The other principle is that of the United States is incomplete if Environment. Although there judicial review: the power of aone considers only the Federal has been considerable federal legis- court to enforce the commands of Constitution. That document de- lation protecting the environment the Constitution, even in the face of serves all the attention we can give (such as the National Environmen- a legislative or popular majority. it. But those who drafted it under- tal Protection Act), federal courts A states' voters have various stood that an enduring and viable have refused to recognize a federal ways of expressing discontent with federal system rested as well on the constitutional right to a decent judicial decisions. In some states, pillars of the state constitutions. environment. State constitutions judges stand for reelection, and Through those constitutions the have much to say about environ- their decisions may be a topic for people of the respective states mental protection. For example, debate in that election (the success- structure governments closer to New York's Constitution imposes ful campaign mounted by conserva- them than they find in Washington. restraints on the use of public lands tives against California's Chief Jus- Pluralism and a dispersal of power and resources and Illinois' Consti- tice, Rose Bird, attracted national buttress our free society. Maintain- tution authorizes citizens' suits to attention). ing the state constitutions in good protect the environment. More generally, it is far easier to repair and understanding their pos- Education. The Supreme Court amend a state constitution than it is tulates help us move forward with a has refused to use the Fourteenth to amend the United States Consti- system of government that has Amendment to require that states tution. Voters have used this power. served us well for two centuries equalizeexpenditures among Constitutional amendments in Cali- and gives hope and promise for the wealthier and poorer school dis- fornia and Florida, emphasizing the next century and beyond. tricts. While total deprivation of rights of the victims of crime, have education (as for aliens) would curbed state courts' ability to sup- raise serious federal constitutional press the introduction of evidence D Copyright A. E. Dick Howard, 1987 questions, the Court's ruling on challenged to being the product of A. E. Dick Howard is White Burkett school finance leaves the issue of an illegal search or seizure. In Mas- Miller professor of law and public affairs, University of Virginia. He is the comparative inequalities among sachusetts and California, constitu- author of The Road from Runnymede: school districts largely to state law. tional amendments have over- Magna Carta and Constitutionalism in In contrast to the United States turned court decisions which had America (University Press of Virginia, Constitution, state constitutions invalidated the death penalty on 1968). 38 213 this Constitution Charles A. Beard's Economic Interpretation of the Origins of the Constitution by ELLEN NORE

It was 1913. The red-haired, confi- ogeaous flock of men and women Constitution was a collection of dent thirty-nine-year-old profes- all over America who were trying to public policies suited to the late sor of American politics and gov- develop a "New Politics" of de- eighteenth century, a set of policies ernment at Columbia University mocracy for the mature industrial which clearly reflected the prior- had just published his seventh society. New York City, with its ities of those who had drawn up the book, An Economic Interpretation ..altitude of foreign-born and first- document. "The people" who or- of the Constitution of the United generation Americans and its often dained and established the Consti- States. Though the author modestly reactionary elites, looked to these tution were, said Beard, white, male described it as a "long and arid "Progressives" to be a "living labo- property-owners who wanted to surveypartaking of the nature of ratory" for public policy. Confident fund the public debt left from the a catalogue," the book was an im- that reason and modern science War for Independence and to elimi- mediate succes de scandale; it has applied In a democratic context nate certain threatening aspects of influenced the written history of could solve or mitigate many urban popular government under the Arti- the Constitution's creation ever problems, Progressives believed cles of Confederation, such as pa- since. that active citizenship was a duty per money inflation and "stay The professor, of course, was and they sought to shift the direc- laws," which impaired the obliga- Charles A. Beard, his thesis became tion of public policy toward active tion of contract between debtors known as the Beardian interpreta- government. and creditors. Significant groups in tion of the Constitution. Few other Changes in publie; policy to meet the populationslaves, women, in- interpreters achieved a position of the needs of urban America de- dentured servants and males with- such intellectual dominance. manded, Beard thought, a changed out propertyhad had no part in However, his argument met view of the histj of the Constitu- framing, promoting or implement- resistancesome of it intense tion. Beard presented the Constitu- ing the new government, and conse- early in the game. "SCAVENGERS, tion not as an historic document quently their interests were not re- HYENA-LIKE DESECRATE THE but as an historical document, a flected in the Constitution. GRAVES OF THE DEAD PATRI- public law containing many clauses Having established that "the peo- OTS WE REVERE," read the head- representing the interests of men of ple" forming the "more perfect line of the Marion Ohio Star. The property and social standing in the union" were politically active editor who wrote it had not even eighteenth century. If the founding white, male property-owners, Beard read what he called Beard's "li- fathers had written the Constitution then divided these perso.is into two belous, vicious and damnable" with their own public policy goals main economic interest groups. book of "filthy lies and rotten as- in mind, why should not progres- First, there were holders of real persions." sives and democrats on the courts estate (among them smaller farm- What did Beard say? Put simply, in 1913 rewrite it through interpre- ers with debts, manorial lords, and Beard asserted that the Constitu- tation to meet the needs of urbaniz- slaveholders of the South). Then tion was not the work of "the whole ing America in the twentieth centu- there were personal property hold- people," as generations of school- ry? ers (creditors, holders of public se- children had been taught; it did not curities, manufacturers and ship- represent the interests of the entire Beard's Argument pers, and speculators in Western society of common folk, men and lands). Under the Articles of Con- women, free and unfree. Rather, it Thus, writing about the Constitu- federation, the latter group, "per- had oeen written by a group of tion in 1913, Beard asked this ques- sonalty" (holders of personal prop- wealthy individuals with specific tion: "Did they [the members of the erty), was, Beard argued, economic policies in mind, policies Convention] representdistinct experiencing difficulty and "was, in that would benefit themselves. groups whose economic interests short, the dynamic element in the If Beard alleged that the founding they understood and felt in con- movement for the new Constitu- fathers had ulterior private motives crete, definite form through their tion." for framing the government as they own personal experience with iden- Using the imaginative and novel did, it is fair for us to ask about his tical property rights, or were they technique of collective biography, own motives in framing his argu- working merely under the guidance Beard centered An Economic In- ment. While not part of any political of abstract principles of political teipretation of the Constitution on party, Beard stood among the heter- science?" He also answered it: The a survey of the economic interests this Constitution 39 4., 214 What did Beard say? Put simply, Beard asserted that... 111w Constitu- tion] had been written by a group of wealthy individuals with specific economic policies in mind, policies that would bengfit themselves.

of the members of the Convention. ufacturing centers. "In a few simple blood with their feet firmly on the A majority of the delegates in Phila- words," he concluded, "the mercan- ground and their minds on their delphia, he found, were lawyers tileand manufacturing interests own interests. from towns or coastal regions, and wrote their Zweck inn Recht [con- Continuing his theme, the Consti- the dusty Records of the Treasury crete interests into the law), and tution as the work of a restricted Department of 1790, a source Beard they paid for their victory by large group of interested men, Beard re- was the first historian to use, concessions to the slave-owning minded readers that there had been showed him that 40 of the 55 mem- planters of the South." Thus, the no direct popular vote taken on the bers who attended the Convention Constitution prohibited interfer- Constitution. Using secondary ac- were listed as holders of public ence with the international trade in counts, scattered records of ratify- securities. Reading backwards, captive people until 1808, required ing conventions in the states, and Beard assumed that holders of se- return of fugitive slaves, and al- Treasury Department records, curities in 1790 had also been hold- lowed for three-fifths of the people Beard attempted to generalize his ers in 1787. "Economic biogra- in slavery to be counted for pur- thesis about the Convention of Phil- phies" of the members of the poses of congressional representa- adelphia into a hypothesis that Convention revealed still other eco- tion and taxation. would describe the alignment of nomic interests that would be se- Two clauses in particular, Beard economic interests in the states. He cured under the new government. argued, embodied demands of "per- was not prepared, he said, to do "a Fourteen of the 55 were speculating sonalty" against the agrarians: study of the natural history" of ap- in public lands, 24 were involved in States could not issue paper money, proximately 160,000 men involved loaning money at interest, "at least" and they could not make laws im- in the adoption of the Constitution 11 members represented "personal- pairing the obligation of contracts. in the states. A glance at the eco- tyinmercantile, manufacturing, The latter prohibition arose from nomic interests represented in con- and shipping lines," and "at least" the fact that some states had ventions of the states suggested to 15 members represented "personal- passed "stay laws" during the de- Beard that those conventions did ty in slaves." pression-ridden 1780s. These laws not "seem to have been more 'disin- Beard conceded that superficial had interfered with contracted terested' than the Philadelphia con- students of the Constitution might loans between debtors and their vention"; in fact, "the leading cham- have difficulty thinking of it as an creditors by delaying payment or pions of the new government economic document. The Constitu- changing the nature of payment. appeared to have been mostly "men tion did not explicitly recognize the Beard pointed out that politicians of the same practical type, with economic interest groups Beard of the eighteenth century could actual economic advantages at had outlined, nor did it mention frankly recognize "classrights." stake." "Almost uniformly" the op- property qualifications on voting or They "were not under the necessi- ponents came from farming regions office holding; criteria for determin- ty," as were "modern partisan writ- and from areas "in which the debt- ing who voted were left to the ers," of clouding "the essential eco- ors had been formulating paper states. Yet, he maintained that the nomic antagonisms featuring in law money and other depreciatory "true inwardness" of the Constitu- and constitution making. Their clar- schemes." Contemporary accounts, tion was directly revealed in the ity of thought," Beard observed, Beard thought, supported his hy- "correspondence of the period, "was greatly facilitated by the dis- pothesis that during the election of contemporary newspapers and franchisement of the propertyless, delegates to the ratifying conven- pamphlets, the records of the de- which made it unnecessary for po- tions in the Sates, there had been "a bates in the Convention at Philadel- litical writers to address them- deep-seated conflict bet. Ten a phia and in the several state con- selves to the proletariat and to ex- popular party based on paper mon- ventions, and particularly The plain dominant group interests" in ey and agrarian interests, and a Federalist." He also focused on the such a way that they appeared "in conservative party centered in the government's positive powers: the the garb of 'public policy.' " Beard towns and resting on financial, mer- power to tax, to raise military wanted to take "the founding fa- cantile, and personal property and forces, and to control foreign and thers" out of the cloud-strewn interests generally." interstate commerce, as reflections realms of Gilbert Stuart's paintings Beard aimed his final sentences of "the strong impulse of economic of disinterested public servants and directly at his selected audience of forces in the towns and young man- to portray them as men of flesh and judges, lawyers, and students of

40 215 this Constitution Rl; "77.- IskoZt. CAP--r e.7-7/ Cy3

/74-7L7g.::.\ t.0 THE "OPEN ROAD" 'TP0,e you know the force that k behind thenew pat ty that has recently been formedthe di.,Otntlilt with the regular parties ofthe United States. so-called Progressive party, #.'.it often enough, and that they It is the feeling that men havegone into blind alleys propose to find an open road for thetuselveA."WoonaowWit.SoN Vrton the fourna/ (Boston)

Illustration from American Reviewof Reviews,v. 46, 1912, p. 473. Library of Congress.

public law: ocratic setting. Professors, judges, highly respected academic col- The Constitution was not created lawyers, and managers of by 'the whole people' corpora- leagues. In the leading scholarly as the ju- tions who thought in formal,static journal, The American Political rists have said; neitherwas it terms about the law were wrong. created by 'the states' as South- Science Review, John Latane point- Beard confided to a student ed out that the security holdings of ern nullifiers long contended; but something of the spirit in which he it was the work of a consolidated six leading supporters of the Con- wrote this book: "The thing to do is stitutionJames Madison, Alexan- group whose interests knew no to lay a mine, store it with nitro, and der Hamilton, James Wilson, state boundaries and were truly then let it off in such a fashion that national in their scope. George Washington, Gouverneur it rips the bowels out of something Morris and Charles Pinckneyto- Thus, Beard concluded, the Consti- important, making it impossible for tution reflected the spirit of these taled $21,046, according to Beard's the fools to travel thatway any figures, while a similar group of eighteenth-century conflicts; itwas more." not a set of eternal prescriptions. In opponents, including Elbridge Ger- ry, Luther Martin, Oliver Ellsworth, the twentieth century, it must be- The Response come a Constitution based upon and William S. Johnson, held securities amounting to $87,979.90. Thus, twentieth-century relations ofpro- An Economic Interpretation duction and consumption ina dem- Beard's own estimates indicated fared badly in reviews by Beard's that security holdingswere not a Q. this Constitution t.) 216 41 Beard's economic interpretation has been replaced ....Still, Beard's work deserves our respect. ...Ile understood that ideas clone do not explain politics and public policy.

of the origins of the Constitution. reliable basis for predicting men's of delegates to the convention the 'personalty' interests were success- Beard's relatively sophisticated outlook on the Constitution. Latane treatment, as well as his message, was willing to acceptinterpreta- ful; if there was so much economic conflict between the farmers and found a hospitable audience, espe- tions which stressed the economic cially in the 1930s. In the late 1950s, nature of sectionalism or which al- the security holders and traders, how could this result have been however, scholars began to review lowed that members of the Conven- Beard's sources. Forrest McDonald, tion had indeed been influenced by secured when the landed class con- the economic interests of their controlled the legislatures which elect- in We the People: The Economic stituents. But he concluded that ed the delegates?" and if the Consti- Origins of the Constitution (1958), tution was so clearly an economic looked closely at the economic in- Beard had not successfully demon- terests of the fifty-five members of strated a connection between per- issue, then "why was so much of the opposition conciliated by prom- the Convention and argued that sonal financial interests of mem- members of the Convention were bers of the Convention and their ises of amendments (The Bill of Rights) in which questions of per- not a cohesive grow nor did they position on the Constitution. vote according to their economic Other reviewers suggested that sonal liberty and states' rights pre- dominated?" interests. One-fourth of the dele- Beard's methodusing the Trea- gates at Philadelphia had, as mem- sury's records after 1790 to interpo- This critical fray left An Econom- ic Interpretation tattered. Contem- bers of their state legislatures, been late the security holdings of mem- supporters of paper money or of bers of the Convention of 1787 poraries saw that Beard's picture reader was out of focus. Yet Beard yielded laws relieving debtors. Another was dubiousor, as one fourth of the delegates had eco- put it, "With all due respect, thisis nothing and reiterated his conclusions on the making of the Consti- nomic relationships that were ad- the most unmitigated rot.... Why versely affected by the Constitution should not former members of the tution with bravado at the close of Convention have invested their Economic Origins of Jejfersonian they helped to write. Fixing his lens Democracy (1915). In this sequel to on the economic interests of thou- money in public securities in 1790 sands of males involved in ratifica- and tha years following, when they his book on the Constitution, Beard insisted that the divisions over the tion at the state level, McDonald saw these rising in valueand be- demonstrated that the Beardian coming safe sources of income?" Constitution were the origin of the Beard's evidence showed only that Federalist and Democratic Republi- picture of creditors and security can party split which developedin holders against agrarians did not seven members of the Convention, In excepti:ig Robert Morris, "had held the early Republic after 1790. It had appear as Beard had predicted. been "established upon a statistical fact, landed rather than fiscal prop- public securities anterior to the erty was dominant among both meeting of the Convention," that basis," he reiterated, that the Con- these securities were worth less stitution had been "the product of a Federalists and Anti-Federalists. In conflict between capitalistic and some states, ratification wasrelat- than $90,000, and that "fully two- ed to an entirely different set of thirds" of this amount belonged to agrarian interests." Supporters of the new government had come issues from those Beard had pre- Elbridge Gerry, who "however, was sented. Georgia, for example, easily so little influenced by this consider- "principally from the cities and regions where the commercial, finan- ratified because of an exposed fron- ation that he refused to sign the tier and desire for federal military Constitution and opposed its adop- cial, manufacturing, and speculative interests were concentrated"; assistance. In Pennsylvania, two tion!" Another reviewer comment- large holders of public securities ed perceptively that An Economic opponents had come "from the Interpretation was "principally at small farming and debtor classes, led the opposition to the Constitu- particularly those back from the tion. fault in its lack of perspective; the McDonald's work unseated period of constitution-making is too seaboard." Thus, Beard slipped un- narrowly limited." Beard, he ar- der the barbed fence with his inter- Beard as the chief interpreter of the pretive shirt noticeably fullof Constitutionalthough Jackson gued, had neglected the impact of Turner Main, Political Parties the colonial and revolutionary ex- holes. Yet, the critical notices of astute Before the Constitution (1974), periences upon the founders. maintained, with Beard, that the l'fistorian William K. Boyd asked contemporaries did not prevent. An Economic Interpretation from be- Federalists were more commercial- Beard two searching questions ly-oriented and that the Anti - Feder- about his hypothesis: "In the choice coming.the dominant interpretation this Constitution 42 217 1 -614. y?

ps. va,."1"."'"`

WealloW0000.-

Crudes A. Beard. Library of Congress. 218 43 Thus, Beard concluded, the Constitution reflected the spirit of these eighteenth-century conflicts; it was not a set of eternal prescriptions. In the twentieth century, it must become a Constitution based upon twentieth- century relations of production and consumption in a democratic setting.

alists were less so. Main's economic in different social circumstances." theologians to God." Yet, Beard divisions were not precisely the The Federalists, according to this added, it did seem 0 him that "in same as those seen by Beard, but line of reasoning, saw the Constitu- the great transformations in socie- Main asse.ted that there was an tion as a bulwark against the popu- ty, such as was brought about by economic division corresponding lar energy released by the revolu- the formation and adoption of the to the political division over ratifi- tionaryexperience.Beard's Constitution, economic 'forces' are cation. economic interpretation has been primordial or fundamental, and By the 1980s, Beard's analysis replaced by Wood's complex social come nearer 'explaining' events has been supplemented by more interpretation stressing the role of than any other 'forces'." sophisticated perspectives, Gordon ideas and social conflict rather than To eliminate or omit economic Wood's chief among them. Wood simple material interests. aspects from history or from dis- stated that Beard's notion of the Still, Beard's work deserves our cussion of public policy meant, relaticnship between property and respect. He was on a meaningful Beard argued, a substitution of my- political behavior "was so crude and important trail. He understood thology for reality and a confusion that no further time should be spent that ideas alone do not explain poli- of issues instead of a clarification on it." Yet, Wood agreed with Beard tics and public policy. In 1935, The of them. The founding fathers were that "the Constitution was in some Macmillan Company, his publisher, great statesmen because they un- sense an aristocratic document de- re-issued An Economic Interpreta- derstood how to use the formalities signed to curb the democratic ex- tion, and Beard provided a new of the law to protect their interests. cesses of the Revolution." Empha- introduction in which he admitted "It is for us," Beard urged, "recipi- sizing, in The Creation of The to having been influenced in 1913, ents of their heritage, to inquire American Republic, 1776-1787 by "the spirit of the times" and to constantly and persistently, when (1969), the importance of revolu- having been eager to rescue discus- theories of national power or tionary experience at the local level sion of the Constitution from the states'rights are propounded: and also the role of ideas about the mire of "abstract discussions of 'What interests are behind them nature of government current in the states' rights and national sover- and to whose advantage will eighteenth century, Wood takes the eignty and...formal, logical, and changes or the maintenance of old rhetoric of the debate between Fed- discriminative analyses of judges' forms accrue?' By refusing to do eralists and Anti-Federalists seri- opinions." As always, Beard firmly this we become victims of his- ously. During the war and after, denied that his was z. Marxian view toryc14 in the hands of its mak- people at large had acted to control of the Constitution. For one thing, ers." prices, prevent profiteering and although he admired Marx, Beard punish local Tories. In the states, was always a relativist who be- Suggested additional reading: citizens tried to carry out the lieved that there were no "laws" of Forrest McDonald, We the People (1958). revolutionary ideal of specifically history. His writings as a whole do Jackson T. Main, Political Parties Before the instructing their legislators. Anti- not have theoretical coherence; Constitution (1974). Federalists believed popular gov- sometimes ideas are important and Gordon S. Wood, The Creation of the Ameri- can Republic, 1776-1787 (19C9). ernment to be endangered by the sometimes material considerations Max Farrand, The Framing of the Constitu- new Constitution. The Federalists predominate in his explanations of tion of the United States (1913). they claimed, were " Astocratic." events. For another, Beard was Ellen Nore, Charles A. Beard: An Intellectu- The Federalists did believe, says fond of pointing out that James al Biography (1983). Wood, in "the right of a natural Madison himself, in The Federalist John Patrick Diggins, "Power and Authority in American History: The Case of Charles aristocracy to speak for the peo- No. 10, saw political factions A. Beard and His Critics," American His- ple." They pictured themselves as emerging from conflicting econom- torical Review, 86 (1981), 701-730. "worthy" members of society, "the ic interests. "I have never," Beard better sort of people," and the Anti- wrote in 1935, replying to those Ellen Nore is assistant professor of His- Federalists as "licentious" and who labeled him an economic de- tory at Saint Vincent College in Latrobe, "void of reputation and character." terminist, "believed that 'all history' Pennsylvania. She is the author of This rhetoric, Wood argues, is not can or must be 'explained' in eel- Charles A. Beard: An Intellectual Biog- as Beard suggested a reflection of raphy. In 1983, she was a Senior Ful- nomic terms, or any other terms. I le bright Lecturer in Colombia and is now "class warfare." It is, rather, a ques- who really 'explains' history must working on an intellectual biography of tion of "opposing ideologies rooted have the attributes ascribed by the Camillo Torres Restrepo.

44 this Constitution 1 For the Classroom

The Meaning of theConstitution: A Syllabus by WALTER F. MURPHY

This syllabus has been designed under the auspicesof Project '87 to provide a common group of readings fora series offive discussion seminars to be organized by librariesor community groups for the Bicentennial of the Constitution. These seminarsare intended to help participants obtain a deeper understanding of the issuessurrounding constitutional interpretation. Walter F. Murphy is McCormickProfes- sor of Juris Prudence, Department of Politics, Princeton University.

The Nature of the Enterprise

Article VI of the American constitutional documentsays: This Constitution, and the Laws of the United Stateswhich shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of theUnited States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby,any Ming in the Constitution or Laws of any Sate to the Contrary notwithstanding. Like every other form of law, the Constitution needsto be interpreted. It speaks in "majestic generalities"as well as in very specific terms. One might be able to apply mechanically suchclauses as that requiring a president to be at least 35years old, but other sections enumerate such broadpowers as that of the president to be "commander in Chief of the Army and Navy" or to "take Care that the Laws be faithfully executed." The rights of individualsinclude "the equal protection of the laws" by state governments, "free exercise of religion," and defense against"unreasonable searches and seizures." The Ninth Amend- ment's broad proclamation of rights: The enumeration in the Constitution, of certain rights, shallit be construed to deny or disparage others retained by the people provides an almost perfect counterweight to the sweepingdelegation of power to Congress in Article I: The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execu- tion the foregoing [list of specific/ Powers, and all otherPowers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof This "necessary and proper" clause as wellas the national supremacy clause of Article VI are to some extent paralleled by the Tenth Amendment: The powers not delegated to the United States by theConstitution, nor prohibited by it to the States,are reserved to the States respectively, or to the people. Thus what "the law" is of the Constitution is sometimesdifficult to discover and the field of constitutional lawor constitutional interpretation is complex. It is also fascinatingas well as critical to our lives. Our rights to travel, to have a family, to enjoy privacy, to vote, to go to public or private schools,to enjoy a presumption of innocence if accused of crime, indeedour very rights to American citizenship itself depend on constitutional interpretation,for the document itself says either nothing at all or very little about these and dozens of other issuesat the core of our sysskin of values. Source books that the syllabus will cite by short title: Alpheus Thomas Mason & Gordon E. Baker, Free Governmentin the Making (4th ed.; New York: Oxford University Press, 1985) cited as Free Government Walter F. Murphy, James E. Fleming, & William F. Harris,H, American constitutional Interpretation (Mineola, N.Y: Foundation Press, 1986), cited as ACI There are other casebooks that contain many if not all ofthe materials listed in the syllabus. Among themare: Gerald Gunther, Constitutional Law (11th ed.; Mineola, N.Y:Foundation Press, 1985) Alpheus Thomas Mason, William M. Beaney, and D. GrierStephenson, American Constitutional Law (7th ed.; Engle- wood Cliffs, Ni.: Prentice Hall, 1983)

Working Sessions 1. The nistorical Background Whether we are bound by what the framers and ratifiers of theconstitutional document of 1787 and its later amendments had in their minds is a heatedly disputed question. Butwhatever the legal status of heir specific intentions, the foundinggen- eration's general purposes to construct a strongyet limited government based on consentat least the consent of white males -- continues to shape not only the American Constitutionbut the nation's more general ethos as well. The Constitution may now be ours, but the framers' wisdom can never be irrelevantto our lives. this Constitution 220 ,;:;") 45 Readings James Madison, "Vices of the Political System of the United States," reprinted inFree Government, pp. 158-160 Irving Millard, "Dateline Philadelphia, 1787," from Michael N. Danielson & Walter F.Murphy, eds., Modern American Democ- racy (New York: Holt, Rinehart & Winston, 1969), pp. 8-29 The Anti-Federalists' Objections: Writings by Richard Henry Lee, GeorgeMason, & Robert Yates, reprinted in Free Govern- ment, pp. 227ff. The Federalists' Defense: Hamilton & Madison, reprinted in Free Government, pp. 251ff. Adoption of the Bill of Rights: Jefferson & Madison, reprinted in FreeGovernment, pp. 285ff.

2. What is the Constitution? The question may refer to the nature of the Constitution: Is it a contract amongconsenting parties and so subject to the rules regarding interpretation of agreements among private citizens? Or is it acharter for government and so subject to very different canons of interpretations? Or is it, as Aristotle said, a way of life, and sosubject to even broader rules of interpretation? Second, the question might be asking what the "Constitution" includesmerelythe document adopted in 1787 together with its amendments? Or does it also refer to certain understandings at the timeof itr adoption? And/or certain long established practices (e.g., executive privilege) or even other documents (e.g., the secondparagraph of the Declaration of Indepen- dence)? Does it also include particular political philosophies and/or economic theoriesthat the terms of the document imply? The question has yet another dimension: Is the American Constitution an effort to sketch avision of a good society or is it merely a set of procedures for settling disputes about public issues? Readings The Document: Preamble; amendts. 1-10; amendt. 14, §1 Calder v. Bull (1798), ACI, p. 86 Palko v. Connecticut (1937), CI, p. 94 "A Note on Incorporation," ACI, p. 98 Griswold v. Connecticut (1965), ACI, p. 113 Missouri v. Holland (1921), ACI, p. 132 William H. Rehnquist, "The Notion of a Living Constitution," ACI, p. 163 Ronald Dworkin, "Taking Rights Seriously," ACI, p. 168

3. Who Has Authority to Interpret the Constitution? Most Americans who have thought about constitutional interpretation probablythink of it as a judicial function. To what extent is that association justified by: The constitutional document? Thehistorical practices of the American republic? The demands of the political theories of democracy and of constitutionalism thatunderpin the political system? Necessity? Under what circumstances should one branch of the federal government defer tothe constitutional interpretation of another branch? How much deference should one branch give toanother's constitutional interpretations? Readings The Document: Arts. I, §8; II, §3; III, §2; & VI, §2 Hamilton, Federalist #78, ACI, p. 195 Madison on Judicial Retriew & Judicial Supremacy, ACI, p. 198 The Great Debate of 1802-1803, ACI, p. 202 The Senate Debates, p. 203 Marbury v. Madison (1803), p. 211 Andrew Jackson's Veto, AU, p. 225 Abraham Lincoln's first Inaugural, ACI, p. 226 Nixon v. United States (1974), ACI, p. 234

4. How to interpret the Constitution? Structural Analysis and a Democratic System The American constitutional document is composed of seven articles and twenty-fouramendments. (The Twenty-first Amendment repeals the Eighteenth.) Even if one restricts the tend "theConstitution" to that document, one cannot intelli- gently interpret it by treating clauses as if they were isolated instructions. Structural analysislooks to the "architectural scheme" of the Constitution; it views the Constitution as a totality and from that scheme att-pts to rank rights, duties, and powers. Only from that whole, structuralists argue, doindividual clauses convey their true meaning. Structural analysis does not have to be limited to the document's text. William F.Harris, II, points out that structural approaches to constitutional interpretation can range from purely textual ("immanent"is the word he uses) to transcendent, which "looks for structures and coherent wholes outside the :--nittenj Constitution which aresignalled by the document. The political, not the linguistic, order itself is viewed as an organized text to beinterpreted...." Beyond the transcendent is what Harris calls "ultra-structuralism," which relies ongeneral political theory(ies) not found in the text of the document ("Bonding Word and Polity," American PoliticalScience Review, LXXVI (1982), 341.

this Constitution 46 221 This session's readings as well as those of the next are largely examples of the kind of structural analysis that Harris calls "transcendent," even "ultra-structural." They involve judicial perceptions of signals within the document -hat point to certain general political theoriesdemocracy and/or constitutionalism. The first asserts that "the people" .nust be self-governing, not necessarily directly through referenda but at least through representatives freely chosen after open debate to serve for limited terms. Constitutionalism adds that all government, even government that perfectly reflects the wishes of "the people," is limited by certain basic rights that individual human beings have because they are human beings and not because any political system recognizes those rights. It is "to secure these rights," as the Declaration of Independence put it, that "governments are instituted among men." Two of the prerequisites for a representational democracy are freedom of political communication and a broadly based right to vote. To the extent that officials can determine who can debate political issues and just what issues are open or are not open to debate, a people are not selfgoverning, even though they formally elect representatives. Similarly, if government can exclude from the ballot box adult citizens who are of sane mind and not in prison, elections become suspect. Thus, almost all restrictions on political communication seem illegitimate. But are there no limits here? Should a person have a right to urge that citizens assassinate public officials instead of voting them out of office? Or to incite fellow citizens to rid the world of "social undesirables?" Or to publish military secrets in time of war? Or to advocate political objectives in vile and'or insulting language? Readings The Document: Preamble, Art. I, §2; Art. II, §1, 112; amendts. 14 ( §1), 15, 17, 19, 26 United States v. Carotene Products (1938), ACI, p. 482 John Hart Ely, Democracy and Distrust, chap. 4 Whitney v. California (1927), ACI, p. 503 Dennis v. United States (1951), ACI, p. 510 Yates v. United States (1957), ACI, p. 519 Barenblatt v. United States (1959), ACI, p. 525 New York Times v. Sullivan (1964), ACI, p. 596 Reynolds v. Sims (1964), p. 349

5. How to Interpret The Constitution? Structural Analysis and the Discover; tCreation?) of Fundamental Rights If the heart of constitutionalism is protection of the autonomous individualfurtherance of human dignityconstitutional government must respect a zone of privacy around each individual's personality as well as a wide range of individual control over his/her body. But much of what we do in a complex, interdependent, urban society seriously affects the rights of others. How or where does one find limits on individual rights, limits that protect but do not oppress? To what extent should judges defer t-) the judgment of popularly elected officials in drawing those lines? To what extent should popularly elected officials defer to the wishes of their own constituents here? Readings The Document: Preamble; Art. I, §9, cl 2; amendts. 1-9, 13, & 14 §1 Meyer v. Nebraska (1923), ACI, p. 1089 Jacobson v. Massachusetts (190:5), ACI, p. 91 Buck v. Bell (1927), ACI, p. 278 Skinner v. Oklahoma (1942), ACI, p. 868 Rochin v. California (1952), ACI, p. 100 Griswold v. Connecticut (1965), ACI, p. 113 Roe v. Wade (1973), ACI, p. 1122 Bell v. Woffish (1979), ACI, p. 1134 222 this Constitution () 47 4. '4%.; . Bicentennial Gazette

Bicentennial Presentations The following list includes recently produced television programs, video cassettes, films, filmstrips, radio programs, audio cassettes, scripts, and other presentations designed for the Bicentennial of the Constitution. For information on additional films and video programs, readers should consult the Educational Film Video Locator (1986). Lists of related materials can also be obtained from the Commission on the Bicentennial of the United Stases Constitution, 736 Jackson Pl., Washington, DC 20503, (202) 982-1787, and from The U.S. Constitution Bicentennial: A WE THE PEOPLE Resource Book, published by the American Bar Association and the American Library! Association, and available from the ABA, 750 N. Lake Shore Dr., Chicago, IL 60611 for $8.50 (which includes three posters). Scripts the U.S. Constitution, Maryland State Archives, Box 828, An- napolis, MD 21404; (301) 269-3916.

NOAH WEBSTER'S WORDS WITH MUSIC, one-hour musi- AFTER THE REVOLUTION, a play about ratification in cal play about Noah Webster and the ratification, by Wade New Hampshire. Contact David J. Magidson, New Hampshire Barnes, 3A-20 Beekman Place, New York, NY 10022; (212) 840- Commission on the Bicentennial of the United States Constitu- 1234. tion, Middletown Road, Wolfeboro, NH 03894. PATRIOTS AND THIEVES: A MUSICAL TALE OF 1787, ALEXANDER HAMILTON, a three-act play about the politi- by Ken Stone and Jan Powell, for ages 12+. Contact Ken cal rivalry between Hamilton and Aaron Burr. Contact Daniel Stone, 513 South Pacific Avenue, #2, Glendale, CA 91204; Fernandez, 601 W. 176th St., NY, NY 10033. (818) 956-5105.

THE CONSTITUTION. 110 scripts with corresponding quiz- THE SUN IS RISING; THE EAGLE SOARS; 1787, a multi- zes. Contact Rory Benson, National Association of Broadcast- media docudrama set in 1787 as the founders create the Con- ers, 1771 N Street, N.W., Washington, DC 20036; (202) 429-5446. stitution. Contact John A. Wiegand, 3455 Doris Road, Cleve- land, OH 44111. THE CONSTITUTION: LITTLE SHORT OF A MIRACLE, one-act drama for middle and high schools by George T. THE UNITED STATES CONSTITUTION: A NON-TRIV- Blume, which takes place on September 17, 1787. Contact the IAL PURSUIT, 52 two-minute radio scripts telling the story American Legion, P.O. Box 1055, Indianapolis, IN 46206. of the Constitutional Convention, by Walter Mead, 1279 Grizzly Peak Blvd., Berkeley, CA 94708; (415) 549-1386. THE CONSTITUTION OF THE UNITED STATES, script, props and activities for elementary school children written WE ALL ARE A PART OF IT: USA 1776-1840, by Jean Lut- and illustrated by Janice Howes. A 35-page story book is also terman. Musical play for elementary school students. Norwood available. $8.50 each. Teachers Publishing House, P.O. Box School, 8821 River Road, Box L, Bethesda, MD 20817; (301) 9358, Canton, Ohio 44711-9358. 365-2595.

THE CONSTITUTIONAL DIALOGUES, three dialogues among members of the founding generation about constitu- Touring Plays tional issues, by Ferdinand Alexi Hilenski, Academic Develop- ment Office, SDEV-106, Fayetteville, Arkansas 72701; (501) 575- 4653. FOUR LITTLE PAGES, a play about the founders. Tours the national parksall ages. Produced by Franklin S. Roberts As- DECISION AT RICHMOND: JUNE 1788, a three-act play sociates, Philadelphia, PA. For information, contact Division of on the ratification battle in Virginia, by Robert 0. Byrd, 34 Ox- Interpretation, Recreation and Visitor Services, National Park ford Street, Richmond Hill, Ontario, CANADA MC 4L5. World Service, 1100 Ohio Drive, S.W., Washington, DC 20242. Without War Publications, 421 S. Wabash, Chicago, IL 60605; (312) 663-4250. THE PUBLIC HAPPINESS: THOMAS JEFFERSON'S CRUSADE AGAINST IGNORANCE. Contact Warren FATHER ANONYMOUS, a three-au play based in Massachu-Kliewer, Artistic Director, East Lynne Company, 281 Lincoln setts from the Boston Massacre until the ratification of the Avenue, Secaucus, NJ 07094; (201) 863-6436. Constitution. Contact Robert Blecker, 15 Bayberry Ridge, Ros- lyn, NY 11576. Slide Shows MERCY, a one-act play reenacting the life of Mercy Otis War- ren (1782-1814), by Francine Ringold, 3215 S. Yorktown, Tulsa, OK 74105. THE BLACK AMERICAN AND THE BICENTENNIAL OF THE U.S. CONSTITUTION: A MASS MEDIA PERSPEC- A MORE PERFECT UNION, a play about the Annapolis TIVE, a traveling exhibit consisting of 175 items of print, Convention by William K. Paynter, for adult audiences. Con- paintings, documents, posters, postcards, newspapers and tact Greg Stiverson, Maryland Office for the Bicentennial of magazines from the 1700s to the 1960s, with a slide show lec- 9 n 41 (.. this Constitution ture. Contact Charles E. Simmons, P.O. Box 2235, Washington, The evolution of the Constitution, from the historic political DC 20013-2235; (202) 636-7856. theories on which it is founded, to today's modern interpretations. Price: $179, video or sound filmstrips. GA Guidance As- BLESSINGS OF LIBERTY, 16-minute sound/slide show. sociates, Inc., Communications Park, Box 3000, Mount Kisco, Contact the National Audiovisual Center, 8700 Edgewater NY 10549-9989, or Sales Department, Prentice Hall Media, Box Drive, Capital Heights, MD 20743-3701; (301) 763-1896. 1050, Mt. Kisco, NY 10549; (914) 666-4100.

Films, Filmstrips, Television, Video Cassettes THE CONSTITUTION: FOUNDATION OF OUR GOVERN- MENT examines the seven constitutional articles; outlines the principles of republicanism, federalism, separation of powers, and checks and balances; and explains the amendment proc- AN ABRIDGEMENT OF HOPE: THE STORY OF JOHN ess, congressional elaboration, and judicial review. Includes PUNCH, a documentary about an indentured servant in colo- three filmstrips with cassettes, a library kit, and a Teacher's nial Virginia, preceded by an introduction dealing with the Guide. Also filmstrips (GU-6140); or video cassette (GU- roots of freedom in the colonial period. Scheduled far Septem- 6140V). Contact Opportunities for Learning, Inc., 20417 Nordof ber 1987, PBS. Funded by NEH. Produced by Past America, St., Dept. VR, Chatsworth, CA 91311. Inc., 12100 NE 16th Avenue, Miami, Florida 33161; (305) 893- 1202. CONSTITUTION MINUTES, 26 one-minute spotson the Constitution. Remarks by historians, actors and dignitaries. AMERICA: CCLONIZATION TO CONSTITUTION, fife Available in VHS, 3/4" and 1" Master. Cost depends on outlet. sound filmstrips for grades 5-12. No. 03719. Other filmstrips Contact Lou Reda Productions, Box 68, 44 North Second available on American government. Contact National Geo- Street, Easton, PA 18042; (215) 258-2957. graphic Society, Educational Services, Dept. 87, Washington, DC 20036; (800) 368-2728. CONSTITUTION OF THE UNITED STATES, a 19-minute look at the Constitutional Convention as seen through theeyes AMERICAN FORUM: MADISON, JEFFERSON AND of James Madison. Available in VHS. Cost: $440. Contact HAMILTON AND THEIR RELATIONSHIP TO THE CON- Yvonne Dye, Encyclopaedia Britannica Education Corp., 425 N. STITUTION. Three half-hours. Produced by World News In- Michigan Avenue, Chicago, IL 60611; (312) 321-6800. stitute, P.O. Box 484, Great Falls, VA 22066; (703) 759-5808. Also available from the Southeastern Education Committee THE CONSTITUTION PROJECT, a non-profit educational Association, P.O. Box 5966, 2628 Millwood Ave., Columbia, SC corporation, is developing a seven-part series for public televi- 29250. sion. The first two programs are The Ghosts of '87 and The Road to Runnymede. Additional programs will address free- THE BLESSINGS OF LIBERTY, ABC News Specialon the dom of speech and religion, minority rights and criminal jus- Philadelphia Convention. Peter Jennings, David Brinkley, and tice. Contact Matthew E. Simek, 1126 S.W. 13th Avenue, Port- Ted Koppel, hosts. Aired September 16, 1987, 8:00-11:00p.m. A land, OR 67205; (202) 285-7135. 16-minute video is available: VHS, 3/4", 16 mm, and dissolved slide show. Cost: $15.45. Contact Mail Order Department, East- THE CONSTITUTION: THAT DELICATE BALANCE. ern National Parks and Monuments, 313 Walnut Street, Phila- Thirteen-part series (one hour each) presented by the Public delphia, PA 19106; (800) 821-2903. Broadcasting Service and produced by Columbia University Seminars on Media and Society. Judges, scholars, lawyers, A CELEBRATION OF CITIZENSHIP, live broadcaston public officials, and journalists discuss constitutionalissues. ABC of events September 16, 1987, at the Capitol, including First aired in January 1983. Scheduled for rebroadcastbegin- presentations by President Reagan and retired Chief Justice ning in September 1987. For rental of cassette andpreview in- Warren Burger. Contact Mike Schum, ABC, 1330 Avenue of the formation, write to the Annenberg/CPB Collection, 1231Wil- Americas, NY, NY 10019; (212) 887-7777. mette Avenue, Wilmette, IL 60091, or call 1-800-LEARNER.

THE CONSTITUTION, one-minute video/audio spots ofcom- THE CONSTITUTION: WE LIVE IT EVERY DAY,an ments by spouses of Congress members. Available in limited hour-long program hosted by David Hartmanon ABC, aired quantities. Contact Rory Benson, National Association of September 8, 1987, at 10 p.m. Four stories about personalfree- Broadcasters, 1771 N Street, N.W., Washington, D.C. 20036; dom. Contact Mike Schum, ABC, 1330 Avenue of theAmericas, (202) 429-5445. NY, NY 10019; (212) 887-7777.

THE CONSTITUTION: A FRAMEWORK TO GOVERN CONSTITUTIONAL LAW IN ACTION. NYT851C-V6. Four THE NATION. High School students question Washington filmstrips (Search, and Seizure, Due Process, Rightto Counsel, law professor Edward Bruce about the importance of the Con-and State Action) dramatize actual cases, involving rights stitution in the 1980s. Originally produced for telecastover C- granted by the Constitution. The class is invitedto interpret SPAN. Close Up Foundation. Color. 28 minutes. 1985. Price: the case before hearing the actual Supreme Court verdict. $75, BETA videocassette (CU106B-V6); VHS videocassette Price: $95, 4 color filmstrips, 4 cassettes, guide. SocialStudies (CU106V-V6). Social Studies School Service, 10200 Jefferson School Service, 10200 Jefferson Blvd., Room R-2, P.O.Box 802, Blvd., Rm. R-2, P.O. Box 802, Culver City, CA 90232-0802. Culver City, CA 90232-0802.

THE CONSTITUTIONA LIVING DOCUMENT,a six-part A DESIGN FOR LIBERTY: THE AMERICANCONSTITU- filmstrip which explores the dynamic nature of the Constitu- TION, a 28-minute program on liberty from theAmerican Rev- tion and encourages students to comment on interpretations olution to the Constitution. Available in VHS, 3/4", 16mm. of its meaning. #07968-920. Price: $189. GA Guidance Asso- Free on loan. Contact Modern Talking Pictures, 5000 Park ciates, Inc., Communications Park, Box 3000, Mount Kisco, NY Street North, St. Petersburg, FL 33709; (813) 541-5763. 10549-9989; (800) 431-1242. JOHN DICKINSON, 60-minute film produced bythe Dela- THE CONSTITUTION AT 200: WHY DOES IT STILL ware Heritage Commission, Carvel State Office Building, 820 WORK? Four parts, Teacher's Guide, Library Kit. #31330-920. N. French Street, Wilmington, DE 19801. this Constitution 224 49 ECHOES OF FREEDOM, a 30-second public service televi- Hosted by John A. Moore, Jr. For more information, contact sion announcement recorded in January 1987 at Independence Robert Threlkeld, Distance Learning Center, California State Hall by the Army Reserve program. Contact Office Chief, Army Polytechnic University, 3801 W. Temple Ave., Pomona, CA Reserve, Attn: DAAR-PA, Room 434, 2461 Eisenhower Avenue, 91768; (714) 869-2277. Alexandria, VA 22331;.(703) 325-8480. INSIDE THE CONSTITUTION, a year-long weekly series on EDMUND ROSS. Black-and-white. The Kansas senator blocks C-SPAN, January-December 1987, on Saturday at 1:00 a.m. EST the impeachment of Andrew Johnson, basing his vote on the and 7:00 p.m. EST. The series includes interviews that examine trial evidence rather than the dictates of his party's leaders. the historical development of the Constitution. Part of the television series, Profiles in Courage. 50 minutes. In addition, C-SPAN will air a variety of special events dur- Prices: $85, BETA videocassette (ZF106B-V6); $85, VHS video- ing 1987, including a conference of the governors of the origi- cassette (ZF106V-V6); $95, 3/4" videocassette (ZF106X-V6). So- nal 13 states in May in Philadelphia and the Philadelphia cele- cial Studies School Service, 10200 Jefferson Blvd., Room R-2, bration on September 17. Inquiries should be addressed to C- P.O.Box 802, Culver City, CA 90232-0802. SPAN, 444 North Capitol Street, N.W., Suite 412, Washington, D.C. 20001. THE 1879 TRIAL OF PONCA CHIEF STANDING BEAR, a 90-minute docudrama of the 1879 legal case which estab- INVENTING A NATION, a 20-minute tape from the "Ameri- lished that native Americans were recognized under the Con- ca: A Personal History of the United States" series. Available stitution. Scheduled October 1987; PBS. Cassette available VHS only to organizations and educational institutions. Not for March 1988. VHS, BETA. Nonbroadcast use only. Cost: $50. TV rebroadcast. Cost: $250. Contact Time-Life Films, 100 Ei- Viewer Guide $3.00. Contact Mary Schutz, Nebraska ETV Net- senhower Drive, Paramus, NJ 07652; (201) 843-451)5. work, P.O. Box 83111, Lincoln, NE 68501; (402) 472-3611. KOREMATSU v. UNITED STATES, a 60-minute docu- EQUAL JUSTICE UNDER THE LAW, six half-hour dramas drama, produced b: Past America, Inc. The program involves that cover the career of the first Supreme Court Chief Justice, constitutional issues relating to the internment of Japanese- John Marshall, through his most important decisions (i.e., Mar-Americans during World War II. Contact Shep Morgan, Past bury v. Madison, Gibbons v. Ogden, McCulloch v. Maryland, America, Inc., 12100 NE 16th Avenue, Miami, FL 33161; (305) and the trial of Aaron Burr). Produced by WQED Pittsburgh 893-1202. and the Judicial Conference of the United States. Repackaging will include narratives delivered by notable figures such as re- A LITTLE REBELLION NOW AND THEN: PROLOGUE tired Chief Justice Burger. Scheduled for fall 1987. Cassettes TO THE CONSTITUTION, a 30-minute program on the years available from Social Studies School Service, 10200 Jefferson after the Revolution, culminating in Shays' Rebellion and lead- Blvd., Room R-2, P.O. Box 802, Culver City, CA 90232-0802. ing to the Constitutional Convention. Available in Beta, VHS, 3/ Price: $535, 4 BETA videocassettes, guide (NAC110B-V6); or 4 4", 16 mm. Only to organizations and educational institutions. VHS videocassettes, teacher's guide (NAC110V-V6). Not for TV rebroadcast. Cost: $50 to rent. $365 for Beta, VHS, 3/4". $540 for 16 mm. Contact Churchill Films, 662 N. Robert- THE FIFTH AMENDMENT. SED107C-V6. The evolution son Blvd., Los Angeles, CA 90069; (800) 334-7830 or (213) 657- and application of the controversial protection against self-in- 5110. crimination, discussing the impact of the McCarthy hearings in the 1950s and the Miranda decision. Price: $89, 2 color film- MAIN STREET, a series of five youth-oriented programs dis- strips, 2 cassettes, 8 reproducible pages, guide. Social Studies cussing the Constitution. Produced by NBC and hosted by Bry- School Service, 10200 Jefferson Blvd., Room B-2, P.O. Box 802, ant Gumble. Contact Beverly Whitner, NBC Washington, 4001 Culver City, CA 90232-0802. Nebraska Ave., N.W., Washington, D.C. 20016; (202) 885-4000.

THE FIRST AMENDMENT: THAT RADICAL DOCU- THE MAKING OF THE AMERICAN CONSTITUTION, a MENT. Three or four programs examining the First amend- 44-minute video docudrama on the Convention of 1787. Vol- ment from the perspective of current issues. Produced by ume one of three. VHS. Cable networks and educational use. WHYY-Philadelphia. Scheduled for January 1988. Contact Su- Contact Mark Lipsitz, American Study Center/Radio America, san Hanson, WHYY-Philadelphia, 150 North Sixth Street, Phila- 499 South Capitol St., S.W., Suite 404, Washington, D.C. 20003; delphia, PA 19106; (215) 351-1200. (202) 188-7122. THE FIRST FREEDOM, a documentary examining religiousMIRACLE AT PHILADELPHIA, an ABC production of freedom through the Virginia statute that served as the basis Catherine Drinker Bowen's book. Funded by General Motors. for the First Amendment. Contact Karen Thomas, Film Ameri- Contact Mike Schum, ABC, 1330 Avenue of the Americas, New ca, 1832 Biltmore Street, N.W., Washington, D.C. 20009; (202) York, NY 10019; (212) 887-7777. 332-5817. A MORE PERFECT UNION: THE CONSTITUTION AT GOVERNMENT AS IT IS: THE EXECUTIVE, LEGISLA- 200, a 22-week television series (AprilSeptember 1987) of TIVE AND JUDICIAL BRANCHES. Two versions available two-minute vignettes, produced by Cable News Network on government branches-30-minute tapes and 1-hour tapes (CNN). Daily segments run six times a day examining specific on all three branches or individual branches. Available in Beta sections of the Constitution, Bill of Rights and landmark Su- 1 and 2, VHS, 3/4" and 16 mm. Only to organizations and edu- preme Court decisions. In addition to the two-minute vi- cational institutions. Not for TV rebroadcast. Prices vary ac- gnettes, CNN will produce and air 11 half-hour programs of a cording to version and format. Contact Tammy Arneson, Pyra- similar nature. Contact Cable News Network, 100 International mid Film & Video, Box 1048, Santa Monica, CA 90406; (213) Blvd., Atlanta, GA 30348; (404) 827-1700. Also available as A 828-7577. MORE PERFECT UNION, a series of eight 40- minute videotape, on the framers, the Constitutional Convention and major A GRAND EXPERIME:JT: BRINGING THE U.S. CON- Supreme Court decisions. Master index. Contact Britannica STITUTION INTO THE CLASSROOM, two interactive satel- Films, 425 N. Michigan Ave., Chicago, IL 60611, (800) 544-9862. lite teleconferences for secondary school teachers scheduled for October and November 1987 to discuss teaching resources.

50 this Constitution MOYERS: IN SEARCH OF THE CONSTITUTION, a seriesEducation; Gideon v. Wainwright and Miranda v. Arizona. of ten one-hour conversations between Bill Moyers and philos-Each filmstrip is accompanied by a teacher's guide and a li- ophers, Supreme Court justices, judges, scholars and histori- brary kit. Prices. $59 (filmstrip); $69 (filmstrips-on-video). GA ans. Aired April-June 1987. Funded by General Motors, pre- Guidance Associates, Inc., Communications Park, Box 3000 Mt. sented by WNET-New York and WTVS- Detroit. Contact WNET- Kisco, NY 10549-9989; (800) 431-1242. New York, 356 West 58th Street, New York, NY 10019; (212) 560-2000. THIS CONSTITUTION: A HISTORY. Five thirty-minute television programs: the Federal City, South Carolina and the MOYERS: KEPORT FROM PHILADELPHIA, a series of United States, Prayer in the Classroom, the Pursuit of Equality, 90 3-minute historical perspective commentaries by Bill and the Rise and Fall of Prohibition. Scheduled for fall of Moyers on the Constitutional Convention, May to September 1987. Videocassettes available. Produced by the International 1987. Contact WNET-New York, 356 West 58th Street, New University Consortium (IUC) and Maryland Public Television, York, NY 10019; (212) 560-2000. in cooperation with Project '87. Contact Diane Harrison, Mary- land Public TV, Maryland Center for Public Broadcasting, NEW TESTS OF THE FIRST AMENDMENT. NYT122C-V6. 11767 Bonita Avenue, Owings Mills, MD 21117; (301) 356-5600. A teacher's guide with discussion questions and a reproducible worksheet are included. New York Times 1980. Price: $28, col- THIS HONORABLE COURT two one-hour programs exam- or filmstrip, cassette, spirit duplicating master, guide. Social ining the history and function of the Supreme Court. Produced Studies School Service, 10200 Jefferson Blvd., Room R-2, P.O- by WETA; hosted by Paul Duke. Scheduled for spring of 1988. .Box 802, Culver City, CA 90232-0802. Contact WETA, P. 0. Box 2626, Washington, D.C. 20013; (202) 998-2626. OUR LIVING CONSTITUTION, two sound filmstrips for grades 5-12, 17 minutes each: "The Constitution and the Bill THIS PRECIOUS HERITAGE: CIVIL RIGHTS IN THE of Rights" and "Amendments 11 through 26." No. 04060. Other UNITED STATES. Anti-Defamation League. AD144C-V6. filmstrips available on the U.S. government. Contact National Price: $30, Color filmstrip, cassette, guide. Social Studies Geographic Society, Educational Services, Dept. 87, Washing- School Service, 10200 Jefferson Blvd., Room R-2, P.O. Box 802, ton, DC 20036; (800) 368-2728. Culver City, CA 90232-0802.

PORTRAIT OF A DAUGHTER, a 30-minute slide show withTO FORM A MORE PERFECT UNION, a 31-minute pro- script on the evolution of documents from the Mayflower com- gram depicting the Federalists' and Anti-Federalists' struggle pact to the present. Available in slides with script. Cost: in ratifying the Constitution. 16 mm film available at $325.50; $40.00. Contact June Saylor, Daughters of the American Revo- videocassette (VHS), item No. 51224 at $69.95. Produced by lution, 1776 D Street, N.W., Washington, D.C.; (202) 978-3372. National Geographic Society, 17th and M Streets, N.W., Wash- ington, D.C. 20036; (800) 368-2728. Contact Marylou Crtunmitt. PRESIDENTS IN CRISIS, a four-part series. Fall 1988; PBS. Produced by WGBY-TV, Springfield, MA. The first program is THE U.S. CONSTITUTION, six 30-minute programs, hosted entitled, "Lincoln and Fort Sumter." Contact Tula Urdaz, by Bill Moyers, on limited government, federalism, separation WGBY-TV, 44 Hampden Street, Springfield, MA 01103; (413) of powers, free speech, equal protection, and the economy. 781-2801. Price: $180.00 each. Contact Agency for Instructional Technol- ogy, Box A, Bloomington, IN 47402; (800) 457-4509. THE PRESIDENCY AND THE CONSTITUTION explores the domestic and foreign issues facing the modern presidency THE UNITED STATES CONSTITUTION: A DOCUMENT in 8 one-hour programs. Tapes available. Contact Barbara Ed- FOR DEMOCRACY. This video and sound filmstrip produc- dings, Media and Society Seminars, Columbia University tion, narrated by newscaster Bill Kurds, explores the Constitu- School of Journalism, New York, NY 10027; (212) 280-4150. tion as a living framework for government and introduces the framers. Availalile on VHS cassette ($59) and filmstrip ($35). SEARCHING FOR JUSTICE: THREE _IMERICAN STO- Grades 5-9. For information call (800) 621-1900 or write SVE, RIES, an examination of three Supreme Court cases, 1 deal- 1342 W. Diversey Avenue, Chicago, IL 60614. ing with capital punishment, one with abortion, and one about racial discrimination. Includes commentary by Associate Jus- THE U.S. CONSTITUTION IN ACTION: CREATING A tice Thurgood Marshall. Carl Rowan, moderator. Aired Septem-FEDERAL UNION. Four 15-minute filmstrips. Educational ber 1987. Gannett Broadcasting Group, 1611 W. Peachtree St. use only. Cost: $193. Contact Random House Inc., Educational N.E., Atlanta, GA 30309; (404) 892-1611. Enrichment Materials, Dept. 9261, 400 Haan Road, Westmin- ster, MD 21157; (800) 638-6960. SIGNERS OF THE CONSTITUTION, a set featuring 39 one- minute spots on the Signers and a 6-minute, 40-second piece THE U.S. CONSTITUTION IN ACTION: THE LIVING on George Washington. Remarks by Secretry of the Army JohnDOCUMENT. Four 15-minute filmstrips. Educational use 0. Marsh, Jr. Cassette available in Vr:S and 3/4". Contact Cap- only. Cost: $193. Contact Random House Inc., Educational En- tain Boggs, U.S. Army, Command Info. Unit, Electronic Media richment Materials, Dept. 9261, 400 Haan Road, Westminster, Branch, Building 160/2, 2nd & M Sts., S.E., Washington, D.C. MD 21157; (800) 638-6960. 20315-0300; (202) 433-2404. THE U.S. CONSTITUTION: ORIGINS IN CLASSICAL SIMPLE JUSTICE: THE STORY OF BROWN v. TOPEKA GREECE. A 13-minute videotape that discusses the Greek in- BOARD OF EDUCATION (1954) SUPREME COURT DE- fluence on the Philadelphia Convention, the Constitution, and CISION, a four-hour mini-series, scheduled to air Spring 1989. architecture in America. VHS cassette, 16 mm film available. Produced by New Images Productions, Inc., 919 Euclid Ave- Produced by American Hellenic Alliance, 1700 North Moore nue, Berkeley, California 94708; (415) 548-1790. Street, Suite 927, Arlington, VA 22209; (703) 525-1717. Contact Barbara Darr. SUPREME COURT DECISIONS THAT CHANGED THE NATION: Marbury v. Madison; McCulloch v. Maryland; The VISIONS OF THE CONSTITUTION, a series of five pro- Dred Scott Decision; Plessy v. Ferguson; Brown v. Board of grams that examines the Constitution and how it functions. this Constitution 226 51 Produced by WQED and Metropolitan Pittsburgh Public DATELINE 1787, National Radio Theatre of Chicago. 13 half- Broadcaiting. Hosted by Judy Woodruff and Tom Gerety. Con- hour weekly programs. Available free to public radio stations. tact Peggy Zapple, WQED, 4802 Fifth Avenue, Pittsburgh, PA NRT, 600 N. McClurg Court, suite 502-A, Chicago, IL 60611; 15213; (412) 622-1324. (312) 751-1625.

WE THE PEOPLE, four one-hour public affairs programs, THE DECLARATION OF INDEPENDENCE AND HOW produced by American Bar Association and KQED-TV, San IT CAME ABOUT, first of the Americana series by Words Francisco. Peter Jennings, host. Scheduled for September and Music Studio, P.O. Box 156, Newtonville, MA 01260; (617) 1987. Eight 30-minute videocassettes available with study 244-2044. guide. Contact Films for the Huinanities, Inc., P.O. Box 2053, Princeton, NJ 08543; (800) 257-5126. THE LIVING CONSTITUTION OF THE UNITED STATES, a recorded reading of the Constitution, with music. WE THE PEOPLE 200: THE CELEBRATION OF THE Available on LP record or cassette. Contact Project Constitu- BICENTENNIAL OF THE CONSTITUTION OF THE tion, P.O. Box 302, Little Falls, NJ 07424. UNITED STATES, live coverage of the events in Philadel- phia on September 17, 1987, by CBS, 51 West 52 St., NY, NY MR. ADAMS AND MR. JEFFERSON: A DRAMATIZA- 10019; (212) 975-4321. TION FOR THE RADIO, Carleton College, Northfield, MN 55057; (507) 663-4303. THE WORK OF PEACE: THE TREATY OF PARIS, 1783, film and curriculum materials pertaining to the Treaty of Paris NEWS REPORTS, 88 three-minute programs. America Stud- which ended the American War of Independence. Contact Of- ies Center, 426 C St., N.E., Washington, DC 20003; (202) 547- fice of Telecommunications, Natural History Building, Room 9409. C22B, Smithsonian Institution, Washington, D.C. 20560; (202) 357-2984. VOICES OF FREEDOM, three-minute segments by Walter Cronkite on tape, reciting passages about the Constitution by Programs for Children George Washington. Produced by People for the American Way, 1424 16th Street, N.W., Washington, D.C. 20036. User's Guide available. Contact Nancy Stella (202) 462-4777. MUSICAL SALUTE TO THE CONSTITUTION, a 43-minute musical salute as soon through the eyes of children. Available WE THE PEOPLE, twelve 30 to 60-second audio documen- in VHS or 3/4". Contact Alice Beebe, Young Citizens for Ameri-taries on the Constitution, the Soldier Signers, and the role of ca, 310 Constitution Avenue, N.E., Washington, D.C. 20002; the Army Reserves in the ratification process. Audio cassette (202) 543-9262. available. Contact Office Chief, Army Reserves, Attention: DAAR-PA, Room 434, 2461 Eisenhower Avenue, Alexandria, RAINBOW'S END, a half-hour television program for deaf VA 22331; (703) 325-8480. children, 8-12 years of age, is being produced by D.E.A.F. Me- dia, Inc. entitled, "Rules, Laws and the U.S. Constitution." PBS. Programs for Children Contact Susan Rutherford, D.E.A.F. Media, Inc., 2600 Tenth Street, Berkeley, CA 94710; (415) 841-0165. CHILDREN'S GUIDE TO THE CONSTITUTION, audio Radio, Records, Audio Cassettes tape. Audio cassette available. Contact Mark Lipsitz, American Study Center, 499 South Capitol Street, S.W., Suite 404, Wash- ington, D.C. 20003; (202) 488-7122.

BILL OF RIGHTS RADIO EDUCATION PROJECT, a se- I LOVE AMERICA, audio tape of songs about the Constitu- ries of 13 half-hour radio documentaries on controversial is- tion and America by children. Audio cassette available. Con- sues (e.g., the insanity defense, abortion, gun control, sex edu- tact Alice Beebe, Young Citizens for America, 310 Constitution cation, prayer in the public schools). Scheduled for public Ave. N.E., Washington, D.C. 20002; (202) 54.1-9262. radio stations, fall 1987. Audio cassettes, $11.00 each. Pro- duced by the American Civil Liberties Union and Pacifica Foundation. For more information, contact Pacifica Radio Ar- chives, 5316 Venice Blvd., Los Angeles, CA 90019; (213) 931- 1625.

A CHORAL READING OF OUR ENDURING CONSTITU- TION. LP record or cassette. Heritage Enterprises, 325 N. 13th St., Philadelphia, PA 19107-1118; (215) 627-4340.

THE CONSTITUTIONAL CONVENTION, 24 one-minute ra- diO messages recorded by actor Gregory Peck which focus on the delegates and issues of the Constitutional Convention held at Philadelphia in 1787. Produced by the Constitutional Rights Foundation and the Los Angeles County Bar Association. The recorded messages will be distributed free of charge to radio stations nationwide through the cooperation of the National Association of Broadcasters. They will also be made available on cassette and in printed form for distribution to schools in Los Angeles County. Contact Rory Benson, National Associa- tion of Broadcasters, 1771 N Street, N.W., Washington, D.C. 20036; (202) 429-5446. Thomas Jefferson. library of Congress.

52 2 ) " this Constitution Television-Assisted Course Focuses Publications on Constitutional History The United States Constitution and its development over its two-hundred-year history is the focus of THE UNITED STATES CONSTITUTION: "This Constitution: A History," a new television-assisted PERSONALITIES, PRINCIPLES, AND IS- open learning course developed by the International Uni- SUES versity Consortium at the University of Maryland Univer- sity College, in association with Project '87 and Mary- Avolume by Walter B. Mead, published by the Universi- land Public Television. ty of South Carolina Press, Columbia, SC 29208; (803) "This Constitution: A History" was designed so that it 777-5243.Available in August 1987.$9.95 (pap.);$22.95(bc). can be used as a self-contained course on the Constitu- tion for adult, part-time students. In addition, individual components can be used to support college classroom FEDERAL LAW AND SOUTHERN ORDER: instruction in a variety of history and political science RACIAL VIOLENCE AND CONSTITUTIONAL courses. CONI"JCT IN THE POST-BROWN SOUTH The components include five half-hour television programs that explore the Constitution's role in a variety of michal R. Belknap examines the federal government's social issues (including school prayer, affirmative action, posture toward racial conflict in the South in the and prohibition), a new Anthology that provides an in- 1950s and 1960s. 387 pp. $35.00. University of Georgia terdisciplinary approach to understanding the Constitu- Press, Athens, GA 30602; (404) 542-2830. tion, and a Course Guide that ties together all components for the adult student. The package will be used as a course by member in- SCIENCE, TECHNOLOGY AND THE CONSTI- stitutions of the International University Consortium be- TUTION ginning this fall and will be available for licensing by other colleges and universities throughout the United Abackground paper by the Office of Technology As- States. Individual television programs, and the Anthology sessment. 23 pp. $1.50. Available from the Superin- will be available for use in classrooms and by communi- tendent of Documents, Government Printing Office, ty groups as part of the bicentennial celebration of the Washington, DC 20402-9325; (202) 783-3238. U.S. Constitution. "This Constitution: A History" was developed through grants from the National Endowment for the Humanities JAMES MADISON: THE FOUNDING FATHER and involved a team of constitutional scholars chaired by Herman Be lz of The University of Maryland and in- Abiography of Madison by Robert A. Rutland. 287 pp. cluding Michal R. Belknap, California Western School of $19.95. Macmillan Publishing Co., 1866 Third Ave., Law; Michael Les Benedict, Ohio State University; Rich- NY, NY 10022. ard C. Cortner, University of Arizona; Thomas E. Cronin, Colorado College; Don E. Fehrenbacher, Huntington Li- brary; Tony Freyer, University of Alabama; Kermit L. THE FRAMING AND RATIFICATION OF THE Hall, University of Florida; Ralph Lerner, University of CONSTITUTION Chicago; and Peter Onuf, Southern Methodist University. For more information on "This Constitution: A His- Twenty essays edited by Leonard W. Levy and Dennis tory," contact The International University Consortium, . Mahonney. 395 pp. $24.95. Macmillan Publishing The University of Maryland University College, Universi- Co., 1866 Third Ave., NY NY 10022. ty Blvd. at Adelphi Road, College Park, MD 20742-1612; (301) 985-7811. THE CONSTITUTION OF THE UNITED STATES: A GUIDE AND BIBLIOGRAPHY TO CURRENT SCHOLARLY RESEARCH

Exhibits Aselective bibliography of legal writings on the Consti- tution from 1970 to 1986, arranged by section of the Constitution. Compiled by Bernard D. Reams, Jr., and Stuart D. Yoak. 562 pp. $65.00. Oceana Publications, Inc., "Designing a Nation: Science, Dobbs Ferry, NY 10522. Technology & The Constitution" Exhibit Opens WE THE PEOPLE: BITS, BYTES AND HIGH- LIGHTS OF THE U.S. CONSTITUTION AND From April 30 to September 30, 1987, the American THE BILL OF RIGHTS Philosophical Society, in its first modern exhibition, is displaying books, manuscripts, artifacts and works of This 32-page picture book describes the Constitutional art from its collections to tell the story of the federal Convention for children ages 8 and older through car- government's use of science and technology from 1787 toon characters playing a computer game. Written by to 1830. Catalogue available. Write to the American Heidi Wolf, illustrated by Jerry McDaniel. $4.95 from Philosophical Society Annex, 427 Chestnut St., Philadel- STORYVIEWS Publishing Co., 136 E. 55 St., NY, NY phia, PA 19106; or call (215) 627-0706. 10022.

this Constitution 228 53 CAPITAL CITY: NEW YORK AFTER THE lowed by a commentary. Available for $30 from Scholarly Re- REVOLUTION sources, Inc., 104 Greenhill Ave., Wilmington, DE 19805; (800) 772-8937. This guide to a special exhibit organized by Fraunces Tavern Museum includes an introductory essay, 40 illustrations, and a bibliography. 52 pp. $7.95. Fraunces Tavern Museum, 54 THE CONSTITUTION AND THE STATES: Pearl Street, NY, NY 10004-2429. THE ROLE OF THE ORIGINAL THIRTEEN IN THE CREATION OF THE FEDERAL CON- A GRAND EXPERIMENT: THE CONSTITU- STITUTION TION AT 200 Edited by Patrick T. Conley, Esq., this volume containsan essay on each of the original thirteen states, including a bibli- Edited by John A. Moore, Jr. and John E. Murphy, this vol- ography for each. Illustrated and written for the general pub- ume includes 8 essays by the participants of the Douglass lic, the book also includes an introductory overview. Available Adair Symposia: Leonard Levy, Richard B. Morris, Sarah Wed- in January 1988 from Madison House. Contact Patrick T. Con- dington, Austin Raney, C. Lani Guinier, William F. Buckley, ley, Esq., 189 Wickenden St., Providence, RI 02903; (401) 861- Jr., Harry V. Jaffa, James MacGregor Burns. Each piece is fol- 5656.

Scholarly Conferences

HOW DOES THE CON- NEW AMERICANS of Pennsylvania; Daniel Ru- Nat. Sci. Pol.; J.W. Burrow, STITUTION ESTAB- AND OUR CHANGING hinfeld, UC Berkeley; Peter Univ. Sussex; A.E. Campbell, LISH JUSTICE? CONSTITUTION: Leslie, Queens University; Univ. Birm.; Richard Hodder- DREAM AND REALI- Richard Buxbaum, UC Berke- Williams, Univ. Bristol; James American Enterprise Insti- TY FOR IMMIGRANTS ley; Kent Newmyer, Univ. of L. Sundquist, Brookings Inst.; tute TO AMERICA Connecticut; Michael Parrish, Kenneth W. Thompson, U.Va.; U.S. Department of Justice UC San Diego; Robert Post, Hon. Arthur J. Goldberg. Washington, DC William Paterson College of UC Berkeley. Principal topics: fundamental September 11-12, 1987 New Jersey Principal topics: federalism rights; judicial interpretation; Wayne, NJ and constitutional law; medi- constitutional models. Principal speakers: Robert October 23, 1987 cal care and the federal sys- For fkuther information, con- Bork, U.S. Circuit Court of tem; fiscal federalism in the tact Sarah E. Green, Fulbright Appeals; Abram Chayes, Har- Principal speakers: Rudolph USA and Canada; federalism Commission, 6 Porter Street, vard Law School; Henry J. Vecoll, Univ. Minn.; Steven and the judicial mind. London, England W1M 2HR. Manne, George Mason Law Golin, Bloomfield Coll.; Henry For further information, con- School; Michael Peny, North- Bischoff, Ramapo Coll.; Wil- tact Harry N. Scheiber, semi- western Law School; Walter son Carey McWilliams, nar director, Boalt Law Berns, Georgetown Universi- Rutgers Univ.; Leonard Din- School, University of Califor- ty; Harry Clor, Kenyon Col- nerstein, Univ. Ariz.; Lydio F. nia, Berkeley, CA; (415) 642- lege; Edwin Meese III, U.S. :omasi, Cent. for Migration 4038. Attorney General; Christo- Studies; Gary E. Rubin, Amer. pher DeMuth, AEI. Jewish C'ttee. THE U.S. CONSTITU- For information, contact KatyFor further information, con- TION: THE FIRST 200 Breen, AEI, 1150 17th St. NW, tact Joseph Brandes, History YEARS Washington, DC 20036; (202) Department, William Paterson 862-5885. College, Wayne, NJ 07470; Fulbright Colloquium 198/ (201) 595-3045. University House, LIBERTY AND THE University of Birmingham LAW: THE POWER OF BERKELEY SEMINAR United Kingdom THE JUDICIARY IN ON FEDERALISM September 4-8, 1987 HISTORICAL PER- Sponsored by the US-UK Ful- SPECTIVE bright Commission, University of California The University of Virginia, Purdue University /Calumet Berkeley, CA and the British Academy Hammond, IN October 30-31, 1987 November 21, 1987 Principal speakers: Rt. Hon. Principal speakers: Daniel Lord McCluskey; Cathy Mat- Principal speaker: Robert V. Elazar, Temple University; son, Univ. Tenn.; David Rab- Remini, University of Illinois. A. E. Dick Howard, Universityban, Univ. Texas; John For further information, con- of Virginia Law School; David Zvesper, Univ. E. Anglia; Lou- tact Edward P. Keleher, Dept.Rothman, Columbia Universi- is Henkin, Columbia Univ.; of History and Political Sci- ty; Edward Beiser, Brown A.E. Dick Howard, U.Va.; ence, Purdue University Calu-University; Eugene Lee, UC Gunter Moitmann, Univ. Ham- met, Hammond, IN 46323. Berkeley; Robert Inman, Univ. burg; Odile Rudelle, Fond.

54 229 this Constitution National Endowment for the Humanities Initiative on the Foundations of American Society

Continuing the emphasis that began with the initiative on the Bicentennial of the U.S. Constitution, the Na- tional Endowment for the Humanities has announced a new special initiative on the foundations of American society. The Endowment welcomes proposals involving studies by scholars or dissemination of scholarship over the whole range of philosophical, historical, and cultural questions raised by the early founding period. Six "topics of special interest" include: history of the founding period; the character of constitutional democracy; cultural life in the new nation; ideas of representation and institutional arrangements; constitutional principles; the Bill of Rights. Applications will be considered by the appropriate NEH division or program. For further information, call or write: Office of Publications and Public Affairs, NEH, Room 409, 1100 Pennsylvania Ave. NW, Washington, DC 20506; (202) 786-0438.

Subscription Information 1987-1988

Subscriptions received by June 1, 1988 will include Ave issues, beginning with issue no. 14 (Spring, 1987) and ending with issue no. 18 (Spring, 1988). Publication of this Constitution will conclude with issue no. 18. Individual copies of issue no. 13 (Winter, 1986) through issue no. 17 (Winter, 1987) can be purchased for $4.00 each. Issue no. 18 (Spring, 1988) an expanded issue can be purchased for $6.00. Issue nos. 1-12 are out of print. Contact Project '87 for information on ordering 10 or more copies of one issue. Orders must be prepaid; purchase orders cannot be accepted. All orders should be sent and made payable to: Project '87, 1527 New Hampshire Avenue, N.W., Washington, D.C. 20036, A1TN: Publications.

Quantity Unit Price TOTAL

1987-88 Subscription (Issues 14-18); Individual $15.00 Institutional $21.00 Foreign Individual $20.00 Foreign Institutional $26.00 Single copies of issues 13, 14, 15, 16, 17 (circle issues you are ordering) $ 4.00 Single copy of issue no. 18 $ 6.00

GRAND TOTAL: SHIP TO:

Name Address City State Zip

this Constitution 230 55 FROM PROJECT 87 Celebrate Your Constitution!

Celebrate THE BLESSINGS OF LIBERTY and theBicentennial of the United States Constitution with a poster exhibit that tells the story of the American founding. The exhibit has received official recognition by the Commission on the Bicentennial of the United States Constitution. These 12 full color posters, each 22"x36',' attract the attention of viewers, who learn about constitutional principles through vivid graphics accentuated by brief, carefully crafted texts. THE BLESSINGS OF LIBERTY conveys information and inspire; further inquiry. The poster exhibit comes with a User's Guide, which features an essay describing the events, ideas and leaders pictured in the posters, separate lessons for students in grades 4-6, 7-9, and 10.12, and other essays and bibliographies. The posters are available unmounted or on a sturdy cardboard mounting system 6' tall, charcoal gray, and foldable for reshipment. The poster exhibit can be displayed effectively in libraries, civic centers, businesses. schools or courthouses.

Exhibits are ,-;old only in complete sets of twelve posters. Individual posters are not available for purchase. PRICES:

UNMOUNTED: $70.00 per exhibit MOUNTED: 5110.00 per exhibit

ADDITIONAL COPIES OF THE USER'S GUIDE: $4.00 each

Additional shipping charges for orders sent to cities not served by UPS. Alaska. Hawaii. foreign countries. and APO & FPO according to distance and weight.

Orders must be prepaid; purchase orders will not be accepted. All orders should be sent and nude payable to Project 117 TI II! BLESSINGS OF1.111F.RTY. 1527 Poster 'Titles: New t lampshire Ave.. NW. Washington. D.C. 20036. The Blessings of Liberty Quantity Unit I'rice The Articles of Confederation A "Less Perfect" Union, 1781.1788 Unmounted Pxhibits The Constitutional Convention Mounted Fxhibi ts The Founders' Achievement Additional Users Guides The AntiFederalist Argument Ratification GRAND TOTAI The Bill of Rights St III' TO A City Plan for the Constitution Name The Principle of Federalism Organiration The Supreme Low of The Lund Address To Ourselves and Our Posterity City State Zip

this Constitution 231. Chronology of State Constitutions continued from inside frontcover

PENNSYLVANIA. MARYLAND. NEW HAMPSHIRE. SOUTH CAROLINA

vention which is still in session, completes its work andJune 16, 1780: The Massachusetts constitution is rati- declares its new constitution in force immediately. Dele-fied by the people and goes into effect on October 25. gates then disband to allow for elections under thenew March 1, 1781: Articles of Confederation, declaring a constitution. This is the first constitutional convention "perpetual Union betwec.., the States," are ratified and to complete a constitution. It is also the first body to go into effect. write a constitution and then adjourn, rather thancon- June 2, 1784: New Hampshire adopts a new constitu- tinuing in office as the legislate-- tion which was written by a convention specifically September 28, 1776: The Pennsylvania constitutional called for that purpose and was ratified by the people convention finishes its work and declares thenew con- through votes at their town meetings. stitution in effect. January 21, 1786: The Virginia Assembly p: ()poses a October 1776: Connecticut declares its colonial charter"Joint Meeting of Commissioners from the States to to be in force, but deletes all references to the King. Consider and Recommend a Federal Plan for Regulating This document remains the basis of government in Con- Commerce" to take place in Annapolis, Maryland in Sep- necticut until 1818. tember. November 8, 1776: Maryland proclaims its constitu- September 11, 1786: Commissioners from New York, tion to be in force through a special congress elected New Jersey, Pennsylvania, Delaware, and Virginia meet for the purpose of writing such a document. This con- in Annapolis, Maryland. The "Annapolis Convention" ac- gress stays in,Power as the new legislature of the state. complishes little concerning commercial regulation, but December 18, 1776: The North Carolina constitution commissioners unanimously recommend that another is written and put into force by a congress called in the convention meet in Philadelphia on the "second Monday state for that purpose. in May next, to take into consideration the situation of February 5, 1777: Georgia's constitution, written by the United States, to devise such further provisions as the provisional congress, is passed and put into effect. shall appear to them necessary to render the constitu- April 20, 1777: New York's provisionalcongress ap- tion of the Foederal Government adequate to the exi- proves a constitution it wrote. Demands for popular rati-gencies of the Union." fication of this constitution are rejected by the congress May 25, 1787: Delegates from seven states meet in because New York City and other areas of the state are Philadelphia for the first session of the Constitutional under British military occupation and ratification by citi- Convention. The Convention will meet all summer. zens in those areas would be impossible. July 13, 1787: The Congress, meeting in New York, June 1777February 1778: The Massachusetts house passes the Northwest Ordinance, establishing a basis for of representatives writes a constitution for the state. governing the national territories and creating new March 19, 1778: South Carolina's general 2ssembly states. writes a new constitution for the state. This is passedasSeptember 17, 1787: The Constitutional Convention if it were an ordinary law. South Carolina becomes the finishes its work and transmits me new Constitution to first state to rewrite its constitution during this period. the Congress, which senis it to the states for ratifica- March 1778: The Massachusetts constitution is su! tiit tion. ted to voters in the state. This is the first time that a constitution is submitted to the people for ratification. Principal Sources: Charles G. Tansill, ed., Doe: ments il- The constitution is defeated by a vote of 2,083 in favor lustrative of the Formation of the Union of the Ame,r, of ratification and 0,972 against ratification. ican States (1927); Willi Paul Adams, The First September 1, 1779: Massachusetts constitutionalcon- American Constitutions (1980); Gordon Wood, The vention meets in Cambridge. This is the first such con- Creation of the American Republic (1969). vention called by a sitting and legitimately elected legislature, elected by the people, and brought together for Paul Finkeltnan is a member of the history departtnent at the sole purpose of writing a constitution. the State University of New York at Binghamton. He is March 2, 1780: The Massachusetts constitutionalcon- the author of An Imperfect Union: Slavery, Federalism, vention submits its work to the people of the state for and Comity (Chapel Hill: Univ. of North Carolina Press, 1981), and the editor of Slavery, Race and the American ratification. A two-thirds majority of those votingin Legal System, 1700-1872 16 vols. (New York: Garland town meetings is needed to ratify it. Press, 1988). 232 this Constitution 57 .do ordain and estahtisb tisConstitution for tbe UnitedStatesofAmericA.

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July 2, 1788: The President of Congress, Cyrus July 27, 1789: Congress establishes the Depart- Griffin of Virginia, announces that the Constitution ment of Foreign Affairs (later changed to Depart- has been ratified by the requisite nine states. A ment of State). committee is appointed to prepare for the change 'n government. August 7, 1789: Congress establishes the War De- partment. July 26, 1788: New York ratifies by vote of 30 to 27 after Alexander Hamilton delays action, hoping September 2, 1789: Congress establishes the that news of ratification from New Hampshire and Treasury Department. Virginia would diminish Anti-Federalist sentiment. September 22, 1789: Congress creates the office August 2, 1788: North Carolina declines to ratify of Postmaster General. until the addition to the Constitution of a bill of September 24, 1789: Congress passes the Feder- rights. al Judiciary Act, which provides for a chief justice September 13, 1788: Congress selects New York and five associate justices of the Supreme Court as the site of the new government and chooses and which establishes three circuit courts and thir- dates for the appointment of and balloting by pres- teen district courts. It also creates the office of the idential electors, and for the meeting of the first Attorney General. Congress under the Constitution. September 25, 1789: Congress submits to the September 30, 1788: Pennsylvania chooses its states twelve amendments to the Constitution, in two senators, Robert Morris and William Maclay, response to the five state ratifying conventions the first state to do so. Elections of senators and that had emphasized the need for immediate representatives continue through August 31, 1790, changes. when Rhode Island concludes its elections. November 20, 1789: New Jersey ratifies ten of October 10, 1788: The Congress of the Confeder- the twelve amendments, tine Bill of Rights, the first ation transacts its last official business. state to do so. January 7, 1789: Presidential electors are chosen November 21, 1789: As a result of congressional by ten of the states that have ratified the Constitu- action to amend the Constitution, North Carolina tion (all but New York). ratifies the original document, by a vote of 194 to 77. February 4, 1789: Presidential electors vote; George Washington is chosen as president, and December 19, 1789: Maryland ratifies the Bill of John Adams as vice-president. Rights. March 4, 1789: The first Congress convenes in December 22, 1789: North Carolina ratifies the New York, with eight senators and thirteen repre- Bill of Rights. sentatives in attendance, and the remainder en January 25, 1790: New Hampshire ratifies the route. Bill of Rights. April 1, 1789: The House of Representatives, with January 28, 1790: Delaware ratifies the Bill of 30 of its 59 members present, elects Frederick A. Muhleriberg of Pennsylvania to be its speaker. Rights. February 24, 1790: New York ratifies the Bill of April 6, 1789: The Senate, with 9 of 22 senators in attendance, chooses John Langdon of New Hamp- Rights. shire as temporary presiding officer. March 10, 1.790: Pennsylvania ratifies the Bill of April 30, 1789: George Washington is inaugurated Rights. as the nation's first president under the Constitu- May 29, 1790: Rhode Island ratifies the Constitu- tion. The oath of office is administered by Robert tion, by a vote of 34 to 32. R. Livingston, chancellor of the State of New York, on the bait any of Federal Hall, at the corner of Nall and Broad Streets in New York City. Continued on page 80

234 ...do ordain and establis6 tOis Constitution for the UnitedStatesofAmerica.

A Bicentennial Chronicle No. 18 Spring/Summer 1988 James MacGregor Bums. Richard B. Morris.

From the Editor

In 1976, the president of the American Political Science Association, James MacGregor Burns, and the president of the American Historical Association, Richard B. Morris, proposed that the two associations undertakea joint effort to prepare for the Bicentennial of the Constitution; Project '87was the outcome. A unique collabo- ration, Project '87 has drawn on the expertise of the scholarly community to provide substantiveprograms and materials to underpin the Bicentennial commemoration. Throughout the twelve-yearspan of Project '87, Profes- sors Burns and Morris have offered their leadership and inspiration and countless hours of attention and effort. Its success is due to their contribution, as well as to the generosity of themany other scholars who have worked with Project '87 on its programs and materials. Project '87 has also benefited from thesupport and guidance of the executive directors of the two associations, Samuel Gammon and Thomas E. Mann, whooversaw its operations, and to the judgment and energy of the members of the Joint Committee of scholars that has governed Pro- ject '87 over the last decade. Project '87 began publication of this Constitution: A Bicentennial Chronicle in 1982, with support for its publication costs provided by the National Endowment for the Humanitiesas part of its special initiative on the Bicentennial of the United States Constitution. A grant from the William and Flora Hewlett Foundationfor Pro- ject '87's education activities also made an important contribution to the magazine. The magazine's editorial board, chaired first by Harry Scheiber, University of California at Berkeley, then by Frank Sorauf, University of Minnesota, and finally by Milton Klein, University of Tennessee, has playeda seminal role in its development and production. Members included Patricia Bonomi, New York University, Frances K. Burke, Suffolk University, Bonnie Cochran, Bethesda-Chevy Chase (Md.) High School, Milton C. Cummings, Johns Hopkins University, Charles Eldredge, National Museum of American Art, Margaret Horsnell, AmericanIn- tea national Collage, James 0. Horton, George Washington University, Gary Puckrein, National Museum of Ameri- can History, Dot Ridings, League of Women Voters, and Richard Wilson, Montgomery County (Md.) Public Schools. For the m< ne's design, the editors are indebted to Charles S. Snyder, who created the original layout and who has prepared every subsequent issue for the press, and to Rebecca Hirsh, who found the photographsthat have accompanied the articles. Byrd Press has composed, printed and mailed the magazine beginning with the first issue, maintaining its high quality throughout its publication. The ultimate contribution came from the authors who responded to Project '87's invitation to share theirex- pertise with a wider national and international audience. Through their efforts, the magazine, like all of Project '87's materials and programs, has rested upon a solid foundation of scholarship, tailored to the specificneeds of readers and users in public and educational settings. this Constitution has provided a link between the scholars of constitutional history, politics and theoryand a public audience engaged in thinking about constitutional questions. Although this issve, Spring'Summer1988, is the final ...umber, many of the articles will continue to be available ina two-volume collection published by Con- gressional Quarterly, Inc. As at the beginning, we continue to urge our readers to consider theseresources for their programs and to sustain for the years to come the thoughtful discussion of constitutional issuesthat has so far characterized the Bicentennial era. this Constitution is published with the assistance ofa grant from the National Endowment for the Hu- manities as part of its special initiativeon the Bicentennial of the United States Constitution. Editori- al offices are located at 1527 New Hampshire Avenue, N.W., Washington,D.C., 20036. All material in this publication may be photocopied if attributedas follows: "Reprinted from this Constitution: A Bi- centennial Chroniclr,, Spring/Summer 1988, published by Project '87 of the American Historical Associ- ation and the American Political Science Association." Project '87 woulda $'preciate notification from those who photocopy material in this issue foruse in presentations to other groups. <0 Copyright 1988 by the American Historical Association and the American PoliticalScience Association. Printed by Byrd Press, Richmond, Va. this Constitution 2 3 5 this Constitution published by Project '87 of the Table of Contents American Historical Association and the American Political Science Association THE BILL OF RIGHTS James Madison and the Bill of Rights 4 James MacGregor Burns and by Jack N. Rakove Richard B. Morris, co-chairs Executive Editor George Mason's "Objections" and the Bill of Rights 11 Sheilah Mann, Director, Project '87 by Robert A. Rutland Managing Editor The Nationalization of the Bill of Rights: An Overview 14 Cynthia Iarrison, Deputy Director, by Richard C. Conner Project '87 The Bill of Rights: Protector of Minorities and Dissenters 20 Editorial Assistant by Norman Dorsen Elsie T. Oppenheim Slavery at the Constitutional Convention 25 Design Director by Paul Finkelman Charles S, Snyder Constitutional Equality 31 Photographic Research by Stanley N. Katz Rebecca Hirsh Religion and the Constitution 46 Circulation Manager by A. James Reich ley Judy Caruthers The Constitution and Criminal Procedure 53 Editorial Board by John C. Hall Milton Klein (Chair), Department of History, University of Documents Tennessee Milton C. Cummings, Jr., The Bill of Rights: Roger Sherman's Draft 36 Department of Political Science, by James H. Hutson Johns Hopkins University Margaret Horsnell, John Marshall and the Contract Clause 38 Department of History, by Charles F. Hobson American International College James 0. Horton, THE FUTURE OF THE CONSTITUTION Department of History, Constitutional Understanding and American Culture: 58 The George Washington Future Prospects in Historical Perspective University, and Afro-American Communities Project, by Michael Kammen Smithsonian Institution Why Criticize the Constitution? 64 Frank J. Sorauf, by Donald L. Robinson Department of Political Science, University of Minnesota Our Constitutional Future 66 Richard H. Wilson, by James Oliver Horton Secondary Social Studies Coordinator, Montgomery County (MD) Public Schools

Cover: Bill of Rights Sesquicentennial poster by Howard Chandler Christy. Library of Congress.

2 this Constitution 2 '-'0 (-7: , Joint Committee

James MacGregor Burns, Co-Chair, Department of Political Science, Williams College Richard 13. Morris, Co-Chair, The Papers of John Jay, Columbia Chronology of Datesfrom Ratification inside front cover University to Adoption of the Bill of Rights Lucius J. Barker, Department of Political Science, Washington From the Edit& University, St. Louis 1 Herman Belz, Department of History, For the Classroom University of Maryland 70 Walter F. Berns, Department of Affirmative or Negative: The BakkeDecision Government, Georgetown University Pro/Con: Patricia Bonomi, Department of A Single Six-Year PresidentialTerm 74 History, New York University Charles Bartlett and Thomas E. Cronin Richard L. Bushman, Department of The Genesis of Project '87 History, University of Delaware 76 Beverly B. Cook, Department of by Richard B. Morris Political Science, University of Wisconsin, Milwaukee Roger H. Davidson, Congressional Bicentennial Gazette 78 Resource Update Research Service, Library of Congress Index to Issues 1-17 Don Fehrenbacher, Department of 83 History, Stanford University Joel B. Grossman, Department of Political Science, University of Wisconsin, Madison Harold M. Hyman, Department of History, Rice University Linda K. Kerber, Department of History, University of Iowa Walter Murphy, Department of Politics, Princeton University Mary K. B. Tachau, Department of History, University of Louisville James S. Young, Department of Political Science, University of Virginia Samuel R. Gammon, Executive Director, American Historical Association Catherine E. Rudder, Executive Director, American Political Science Association Advisory Board Warren E. Burger, Honorary C .air- man; Birch Bayh; Griffin B. Bell; Mary F. Berry; Richard Bolling; John Brade- mas; Joan R. Challinor; Robert L. Clare, Jr.; Lawrence A. Cremin; Thom- as E. Deacy, Jr.; Wilfred Feinberg; John T. Fey; Robben W. Fleming; Alan Geyer; Ruth Bader Ginshurg; Fred P. Graham; Orrin Hatch; A. E. Dick How- *V.* ard; Shirley M. Hufstedler; John Jay Iselin; Harry W. Jones; Amalya Lyle Kearse; Edward M. ;:ennedy; Francis R. Kirkham; Edward II. Levi; A. Leo Levin; Frank J. Macchiarola; Robert Project87 AtcClory; Bruce K. MacLaury; Charles McC. Mathias, Jr.; Paul J. Mishkin;Jo- seph A. Pechman; J. W. Peltason;'Wil- The American Constitutional Bicentennial son Riles; Peter W. Itodino, Jr.; Paul Simon; Strom Thurmond; Laurence H. Tribe; Patricia M. Wald; Charles Alan Wright this Constitution 23 7 3 James Madison andthe Bill of Rights by JACK N. .RAKOVE

ames Madison went to the Fed- most needed." Even after Jeffer- son's deepest reservations about eral Convention of 1787 con- son's entreaties finally led him to the wisdom of adopting any bill of vinced that it faced no greater admit that bills of rights might have rights reflected his awareness of challenge than finding some means their uses, it still took a difficult the difficulty of enumerating all the of checking "the aggressions of in- election campaign against another rights that deserved protection terested majorities on the rights of friend, James Monroe, to get Madi- against the "infinitude of legislative minorities and of individuals." He son to declare that, if elected tothe expedients" that could be deployed left it still fearful that the new Con- House of Representatives, he would to the disadvantage of individuals stitution would not effectually "se- favor adding to the Constitution and minorities. Madison's notion of rights was thus open-ended, but his cure individuals againstencroach- "the most satisfactory provisions ments on their rights." In his best for all essential rights." ideas about which kinds of rights known contribution to American To trace the evolution of James were most vulnerable changed over political theory, The Federalist, No. Madison's thinking about the vir- time. In 1787 he felt that the great- 10, Madison again voiced his great tues and defects of a bill of rights, est dangers to liberty concerned the rigl-ts of property. The passage of concern that majorities were enact- then, is to confront the ambiguous ing laws "adverse to the rights of mix of principled and political con- paper money laws in various states other citizens," and he went on to cerns that led to the adoption of the revealed the depths of "injustice" to define the protection of the individ- first ten amendments. Today, when which these populist forces were ual "faculties" of men as "the first disputes about the meaning of the willing to descend. Worse might be yet to come. At the Federal Conven- object of government." Bill of Rights and its lineal descendant, the Fourteenth Amendment, tion, Madison told his fellow dele- These and other statements sug- gates that he foresaw a day when gest that Madison should have wel- have become so heatedwhen, indeed, we often regard the Bill of "power will slide into the hands" of comed the addition of a Bill of "those who labour under all the Rights to the Constitution. And in Rights as the essence of the Consti- fact Madison can rightly be regard- tutionit is all the more important hardships of life, and secretly sigh to fix the relation between the Con- for a more equal distribution of its ed as the principal framer of the Bill blessings." And even if the Consti- of Rights which the First Federal stitution of 1787 and the amend- Congress submitted to the states in ments of 1789. To do this there is no tution succeeded in checking the 1789. Many congressmen felt that better place to begin than with the danger from a dispossessed prole- he was acting with undue haste in concerns that troubled James Madi- tariat, Madison thought that almost son. any act of legislation or taxation calling for quick action on the sub- would affect rights of property. ject of amendments. Had Madison not pressed them to consider the Enumerating Rights "What are many of the most impor- amendments he had introduced tant acts of legislation," he asked in early in the session, the Bill of Much of the contemporary de- Federalist 10, "but so many judicial Rights might never have been add- bate and controversy about the determinations ... concerning the rights of large bodies of citizens?" ed to the Constitution rights-based decisions that the Su- Yet even as he was shepherding preme Court has made over the But the development of Madi- past three decades centers on the son's ideas of liberty long predated the amendments through Congress the specific concerns he felt about in August 1789, Madison privately question of whether the judiciary described his efforts as a "nauseous should protect only those rights the economic legislation of the project." His acceptance of the that enjoy explicit constitutional or 1780s. His first known comments statutory sanction, or whether it on political issues of any kind ex- need for a Bill of Rights came pressed his abhorrence at the per- grudgingly. When the Constitution can act to establish new rightsas in the case of abortionon the secution of religious dissenters in was being written in 1787, and even his after it was ratified in 1788, Madi- basis of its understanding of certain pre - Revolutionary Virginia; and son dismissed bills of rights as so general principles of liberty. We first notable action in public life had been to secure an amendment many "parchment barriers"whose cannot know how Madison would "inefficacy" (he reminded his good decide particular cases today. But to the Virginia Declaration of friend, Thomas Jefferson) was re-one aspect of his analysis of the Rights, the most influential of the peatedly demonstrated "on those problem of rights seems highly per- bills of rights that had been at- occasions when [thei:1 control is tinent to the current debate. Madi tached to the state constitutions

this Constitution 4 (7) Cri CONGRESS OF THE UNITED STA'T'ES. In tIg HOUSE iREPRESENT.1TIVES, :Monday,24th Augull, 1789,

Illtn..THE SENATE AND HOUSE OF REPRESENTA- TIVIi_Oi'iNi',UNITED STATES OF A1 ERICA IN CONGRESS Iimifes deeming* neceflary, That the,following Articles be;piopofed to the Lekiffatities Of theTeveral the COnflitution of the'.Upited Statel, all fon-1AS of the raid Hires, to tic valid 51.p Ses a,1 part-. of the

. . of the Federal Convention in May amendmentbc,

this Constitution 6 240 Madison's deepest reservationsabout the wisdom of adoptingany bill of rights reflected hisawareness of the difficulty of enumerating all the rights that deserved protectionagainst the "infinitude of legislativeex- pedients" that could be deployedto the disadvantage of individuals and minorities.

this problem operated at two levels. ments. But if such governments did He reserved his most radicalpro- existor could be createdwhat rely confidently on the theory of the posalan absolute national veto advantages of multiple factions he need would they have for billsof had derived just prior to the Con- over state laws "in all cases whatso- rights? ever"for the continuing needto vention. "In the extended republic Most of the framers at Philadel- of the United States, and among the protect individualrightsagainst phia agreed that there wasno need majority misrule within the states. great variety of interests, parties, for adding a bill of rights to thenew and sects which it embraces," he In effect, Madison hoped the nation- Constitution, but they rejected al government wouldserve as a wrote in The Federalist, No. 51, "a Madison's two pet proposals fora coalition of a majority of the whole "disinterested and dispassionate national veto and a Council of Revi- umpire in disputes between differ- society could seldom take place sion. The Convention protected in- upon any other principles than ent passions and interests" within dividual liberty only by placing the states. a those of justice and the general handful of prohibitionson the legis- good." State laws might still work But Madison was also prepared lative authority of the states (nota- to concede that the wrong kinds of wholesale injustice; national laws, bly laws impairing the obligation of he believed, would not. majorities might still coalesce with- contracts) or Congress (habeascor- in the new Congress that the Feder- pus, ex post facto, bills of attain- Anti-Federalist Clamor al Convention would create. "Expe- der). When George Mason belatedly rience in all the States had evinced insisted that the new Constitution As Madison threw himself into a powerful tendency in the Legisla- required a much longer list of ture to absorb all power into its enu- the campaign to ratify the Cons".tu- merated rights, his argumentswere tion, however, he was forced to vortex," he reminded the Conven- ignored. tion on July 21. Who could take seriously the growing clamor say The rejection of his pet scheme for the addition of a bill of rights whether Congress might notprove for a national veto on all state laws equally "impetuous"? To protect especially after Jefferson wrote him greatly disappointed Madison. Dur- to affirm his conviction "that a bill citizens against the danger of unjust ing the first weeks after the Con- national legislation, Madison fa- of rights is what the peopleare vention's adjournment, heseems to entitled to against every govern- vored establishing a jointexecu- have feared that the new Constitu- tive-judicial council of revision ment on earth, general or particular tion was fatally flawed because the [i.e., national or local], and whatno armed with a veto over acts of new government would still lack Congress; he was also attracted to just government should refuseor the authority to deal with the prob- rest on inference." Had the issue of the idea of an independent and lem of "vicious" popular and legis- powerful Senate, insulated from amendments been confined to mat- lative majorities in thestates. Even ters of rights alone, Madison might both the state legislatures and the though the supremacy clause of the electorate, to counteract the have readily agreed. But fearing ex- Constitution established a basis for that many diehard Anti-Federalists cesses of the House of Representa- state and federal judges to overturn tives. hoped to exploit the call for amend- laws violating individual rights,he ments to propose major changes in Madison justified all of thesepro- doubted whether the judiciary posals in terms of the protection the Constitution or even to promote could ever muster the willor politi- a second convention, Madison they would extend to individual and cal strength to withstand majoritar- minority rights. But he went to the balked at accepting Jefferson'scor- ian excesses or the ingenuityof rectio, t. Convention convinced that bills of ambitious legislators. rights could add little if anything to In October 1788more thana When it came to the dangers that year after the adjournment of the the defense of civil liberty. None of liberty might face from the nation- Convention, and a good four the existing state bills of rightspro- al government, however, hewas far vided an effective check against leg- months after Virginia becamethe more optimistic. Though not entire- tenth state to ratify the Constitu- islative or popular excess. The ly happy with the system of checks problem was that bills of rights tionMadison wrote Jefferson to and ba'ices that would shape rela- explain why, though now willi-a, were not self- enforcing. The actual tions among the three branches, to protection of the lofty principles see a bill of rights added to .e Madison thought it would discour- Constitution, he foundno other sol- they espoused required the exis- age the enactment of harmful legis- tence of well-constituted govern- id reason to support it thanthe fact lation. Moreover, he continuedto "that it is anxiously desired byotli- this Constitution 2 4 1 7 err 64.`

ers." With other Federalistsnota- bly James Wilson of Pennsylva- niahe still thought that a bill of rights was superfluous because the federal government could exercise only those powers that were expressly delegated to itand those powers did not extend to violating individual liberties. Moreover, Mad- ison confessed his "fear that a positive declaration of some of the most essential rights could not be ob- James Mad6-0, age B2. Library of Cong:oss. tained in the requisite latitude." Better (in other words) not to have any bill of rights than to incorpo- But Madison, for all his originality amendments guaranteeing such rate in the Constitution weak state- as a I.tical theorist, was also a "essential rights" as "the rights of ments that might actually leave working politiciah. His early disap- Conscience in the fullest latitude, room for the violation of the very pointment with the Constitution the freedom of the press, trials by liberties they were meant to pro- had quickly given way to the belief, jury, security against general war- tect. as he wrote in The Federalist, No. rants &c." Even then, however, he Again, however, Madison drew 38, that "the errors which may be was careful to note that he had hus greatest doubts about the value contained in the Constitution... "never seen in the Constitution ... of a bill of rights from his analysis [were] such as will not be ascer- those serious dangers which have of the problem of majority tyranny. tained until an aeoal trial shall alarmed many respectable Citi- In a monarchical regime, Madison have pointed them out." Amend- zens." noted, such dec:arations might inents taking the form of a bill of serve as "a signal for rousing and rights might serve a vital political Political Exigencies uniting tip : superior force of the runctioneven though unneces- community" against the govern- .4,' v on their merits--if they could Madison carried the election by a ment. But in z.s. republic, where the be , .amed in such a way as to margin of 336 votes out of 2,280 greatest dangers to libei:y arose reconcile the moderate opponents cast. Four weeks into the first ses- hol from government but from the of the Constitution without opening sion of Congress, he informed his people themselves, a bill of rights an avenue to a radical assault on coil/agues of his intention to bring could hardly serve to rally the ma- the essential structure of the new t subject of amendments for- jority against itself. The most Madi- government. ward, but another month passed son would concede was that a bill This sensitivity to the need to before he was at last able to present of rights might WI) to instill in the assuage popular opinion was rein- a comprehensive set of proposals people greater respect for "the fun- frced by Madison's own experi- On June 8, 1789. damental maxims of free govern- ence in the first congressional elec- Some congressmen thought that ment," and thus "counteract the tions of 1788-89, when he faced a Madison was acting from political impulses of interest and passion." difficult fight against James Mon- motives alone. Senator Robert Mor- He was willing to entertain, too, the roe. With reports abroad that Madi- ris of Pennsylvania scoled that idea that a bill of rights would be son "did not think that a single Ma 4ison "got frightened in Virginia useful in case "usurped acts of the letter of [the Constitution] would 'and wrote a Book"a reference government" threatened the liber- admit of a change," he found it to his public letters on amend- ties of the community but in :.is necessary not only to return to Vir- ments. But there was nothing disin- thinking, that problem remained ginia from his seat in the Confeder- genuous about Madison's June 8 only a speculative possibility. ation Congress at New York and to speech introducing his plan of Like any intellectual, then, Madi- travel around the district debating amendments. Having reconciled son valued consistency too highly with Monroe, but more important, himself to political exigencies, Mad- to renounce ideas to which he was to issue public letters affirming his ison sought to achieve goals consis- deeply and personally committed. wiiiingness to propose and support tent with his private beliefs. 242 this Constitution [Madison' proposed adding to the prohibitions on state legislative authority already found in Article VI... restraints in the three critical areas of religion, speech, and criminal law ....On this proposal, Madi- son again met defeat"

In typical scholarly fashion, he inserted merely for greater cau- in criminal cases." All the other had culled from over two hundred tion." Here Madison sought to pre- amendments that Madison enumer- amendments proposed by the state vent the enumeration of specific ated elsewhere in his speech im- ratification conventions a list of rights from relegating other rights posed limitations on the power of nineteen potential changes to the to an inferior statusa concern the national government alone. This Constitution. Two of his proposals that was consistent with both his amendment, by contrast, proposed concerned congressional salaries open-ended notion of rights and his adding to the prohibitions on state and the population ratio of the fear that any textually specific legislative authority already found House; two can best be described statement might inadvertently or in Article VI of the Constitution as general statements of principles otherwise create loopholes permit- these further restraints in the three of government. The remaining ting the violation of liberties. As critical areas of religion, speech, amendments fell under the genera: finally adopted by Congress and and criminal law. Here, in effect, rubric of "rights." ratified by the states, this amend- Madison belatedly hoped to salvage The most noteworthy aspects of ment came to read: "The enumera- something of his original intention Madison's introductory speech of tion in the Constitution, of certain of creating a national government June 8 is that it faithfully recapitu- rights, shall not be construed to capable of protecting individual lates the positions he had taken not deny or disparage others retained rights within (and against) the indi- onlyin his election campaign by the people." vidual states, in a manner consis- against Monroe but also in his cor- Among all the provisions of the tent with his belief that the greatest respondence with Jefferson. He Bill of Rights, this somewhat myste- threats to liberty would continue to took care to deal with the objec- rious formula has had perhaps the arise there, and not at the national tions that could come from Anti- most curious history. Long ignored level of government. Federalists and Federalists alike, and disparaged because it did not On this proposal Madison again noting his reasons for originally op- identify the additional rights it im- met defeat. Not until the adoption posing amendments, explaining plied should be protected, it was of the Fourteenth Amendment in why he had changed his mind, yet resurrected in the critical 1965 case 1868 would the Constitution con- also leaving his listeners and read- of Griswold v Connecticut In his tain provisions that would establish ers with a clear understanding that concurring opinion, Justice Arthur a firm foundation upon which the he was acting on a mixture of politi- Goldberg invoked theNinth federal government could finally cal and principled motives. The Amendment to support the claim act as the James Madison of central elements of his analysis of that state prohibition on contracep- 1787-89 had hoped it would. But the problem of protecting rights in tion even for married couples vio- after a variety of procedural delays, a republican government were all lated a fundamental right of privacy Congress finally endorsed Madi- there: the difficulty of enumerating that did not need to be specifically son's remaining provisions for the rights, the emphasis on the greater identified to be deserving of consti- protection of individual liberty. All danger from pop.lar majorities tutional protection. If interpreted in of the first ten amendments that we than acts of government, the risks Madisonian terms, this "forgotten" collectively describe as the Bill of of trusting too much to "paper bar- provision is immediately and enor- Rights appeared, in seminal form, in riers." mously relevant to the current con- Madison's speech of June 8. Among Two of his proposals deserve troversy over the extent to which the rights he then insisted upon special notice. The first is the fore- judges can recognize claims of recognizing, Madison included: free runner of the Ninth Amendment. In rights not enumerated in the text of exercise of religion; freedom of its graceless original wording,it the Constitution itself. speech, of the press, and the right read: "The exceptions here or else- of assembly; the right to bear arms; where in the constitution, made in "No State Shall Violate ..." and the protection of fundamental favor of particular rights, shall not civil liberties against the legal and be so construed as to diminish the The second proposal of particu- coercive power of the state through just importance of other rights re- lar interestand arguably the most such devices as restrictions on ''un- tained by the people; or as to en- important to Madisonheld that reasonable searches and seizures," large the powers delegated by the "No state shall violate the equal bail, "the right to a speedy and constitution; but either as actual rights of conscience, or the free- public trial" with "the assistance of limitations of such powers, or as dom of the press, or the trial by jury counsel," and the right to "just com- this Constitution F; 243 9 S ANL

Government is the mere instrument of the major number of the constit- uerts." He had further predicted that the greatest dangers to liberty would continue to arise within the states. Within a decade of the writing of the Constitution, however, the efforts of the Federalist administration of President John Adams to use the Sedition Act of 1798 to quell the opposition press of Madi- evp,wrms. son's Republican party, in seeming defiance of the First Amendment, forced Madison to rethink his position. Now he saw more clearly how

s the existence of a bill of rights could serve to rally public opinion against improper acts of government; how dangers to liberty could arise at the enlightened level of national government as well as at the more parochial level, of the states; and even how the political influence of the states could be used to check the excesses of national power. Our ideas of rights and liberty have deep historical and philosophical roots which any good faith effort at interpretation must always take into account; and Madison's A agency in drafting both the Consti- tution and its first ten amendments suggests that his views deserve particular attention and even respect. Yet just as his own efforts to under- pensation" for property. of rights readily attests. But the stand both what the Constitution question of what the prohibitions et' meant and how liberty was to be Rethinking the Bill of Rights finally mean can protected continued well after be answered only in part by appeal- 1789indeed literally to his death Because the states retained the ing to the evidence of history. nearly a half century laterneither major share of legislative response Madison himself was one of the can ours be confined to recovering bility for more than another centu first to realize now ideas of rights only some one meaning frozen at a ry, the Bill of Rights had little initial had to be adjusted to meet chang- mythical moment of supreme un- impact. Arguably only during the ing political circumstances. His derstanding. Such a moment has past forty years has it emerged as a original breakthroughs in constitu- never existed and never will. central pillar of American constitutional theory had rested on the con- tionalismand thus as a central viction that in a republic the great- source of political controversy as est dangers to liberty would arise Jack N. Rakove is director of the Ameri- can studies program at Stanford Univer- well, as the current debate over the "not from acts of government con- sity and the author of The Beginnings of legitimacy of judicial "activism" in trary to the sense of its constitu- National Politics: An Interpretive History the enforcement and even creation ents, but from acts in which the of the Continental Congress (1979) 24 ei 10 this Constitution George Mason's"Objections" and the Bill of Rights by ROBERT A. RUTLAND

In 1787 George Mason was a polit- leagues (one by proxy) signed the ical figure to be reckoned with, steady and firm in his principles, Constitution. Mason, Gerry, and Ed- and undoubtedly one of the best spoken of in the same breath mund Randolph (who also declined politicians in America." with Virginians Washington, Jeffer- to sign), watched the convention son, Madison, Patrick Henry, and After nearly four months of give approve the Constitution, accord- and take, compromise and bullying, Richard Henry Lee. He was, as they ing to Dr. Franklin's motion, "by the said then, "a man of parts"; Jeffer- the delegates had survived andso unanimous consent ofthe States had their Constitution; but in Ma- son described him as "of the first present." son's view the convention stillgave order of greatness." The chiefau- Franklin's tactic placed the trio thor of the Virginia Declaration of too little attention given to citizens' of naysayers on the defensive,an rights. Mason distrusted the final Rights in 1776, Mason had been awkward position for one like Ma- either a legislator or a confidant in draft as a protector of the individ- son who had been so hopeful at the ual citizen or of the southern plant- the Revolutionary councils of the start of the enterprise. Mason had ing economy. During that last week, Old Dominion from 1774 onward. come to Philadelphia that spring Mason recorded his misgivings Now, from May to September in convinced that "the Eyes of the 1787, Mason was a key member of about the Constitution on the back United States are turn'dupon this of the printed report of the Commit- his state's delegation at the Federal Assembly, & their Expectations tee of Style, beginning simply: Convention, a frequent and persua- raised to a very anxious Degree." "There is no Declaration of Rights." sive speaker, and theman who "May God grant we may be ableto played a vital role in such matters From that preamble, Masonpro- gratify them," Mason prayed in ceeded to list what he called his as presidential impeachment and June 1787. Along with James Wil- fiscal responsibility. "Objections to this Constitution of son a& James Madison, Mason had Government." But Mason did not approve of the engaged articulately in debateson His originallist of objections outcome of the Constitutional Con- behalf of enlarging participation. vention. He made significant last- claimed that the Constitution upset Mason's arguments for popular the English common law, made minute motions on the convention election of the lower house in Con- floor, and one which his colleagues Congress into a kind of oligarchy, gress, his insistence on the right to allowed the federal courts to de- rejected returned to haunt them: impeach a corrupt president, and Mason belatedly called for the addi- stroy state ones, and left the presi- his approval of presidential elec- dency rudderless without a "Consti- tion of a bill of rights to the Consti- tions by a direct vote of the citizen- tutional Council." Mason feared tution. Mason's call was shaped ry all fitted his philosophical com- into a motion by Elbridge Gerry. that without the latter, a natural mitment to a broad-based ref ublic. cabinet "will grow out of the princi- They must have witnessed the roll A slaveowner and man ofmeans, call of states with chagrin pal officers of the great depart- as the Mason had also denounced the ments; the worst and most danger- resolution "to preparea Bill of slave trade. Rights" was defeated unanimously. ous of all ingredients for such a At the same time, Mason sought Council in a free country" Thecre- Then and later the Federalists to keep the Union from swallowing ated office of the Vice President, were short-tempered when the sub- the states, and thus he supported Mason thought, was disastrous and ject of a hill of rights arose. Dele- selection of senators by the state gate Robert Sherman was their unnecessary, since the incumbent legislatures and vowed "henever "for want of other employmentis spokesman when he helped derail would agree to abolish the State made president of the Senate, Mason's motion. Stating that he too govts. or render them absolutely was "for securing the rights of the thereby dangerously blending the insignificant." Mason also adamant- executive and legislative powers." people where requisite," Sherman ly sought protection for southern As for the presidential powers, continued, that "the State Declara- shipping interests in the form ofa Mason thought the chief executive tions of Rights are not repealed by two-thirds majority for commercial might misuse his "unrestrained this Constitution; and being in force legislation. Within his awn guide- are sufficient." Moreover, Sherman power of granting pardons for trea- lines, Mason steadily argued for a son" and might "screen frompun- contended, "the Legislature may be government that trusted the people safely trusted." James Madison sid- ishment those whom he had secret- over the privileged. Fellow delegate ly instigated to commit the crime, ed with Sherman and five days lat- William Pierce said of Mason: "He er,thirty-nine of Mason's col- and thereby prevent a discovery of is able and convincing in debate, his own guilt." The president'strea- this Constitution 245 ty-making powers, combined with ing the last two weeks of Septem- on to add to his list objections senatorial approval, made such ber. From the opening phrase of his related to regulating the state mili- pacts the supreme law of the land "Objections" tc the bill of rights tia, to the potential power to abuse without any scrutiny by the peo- that James Madison offer( d in Con- the election process, and the pow ple's branch of governmentthe gress two y ars later, the line is so of congressmen to raise their own House of Representatives. And by direct that we can say Mason salaries. "But it wou'd be tedious to allowing a congressional majority forced Madison's hand. Federalist enumerate all the Objections," Ma- to pass laws restricting American supporters of the Constitution son concluded, "and I am s' re they commerce "the five Southern could never overcome the protest cannot escape Mr. Jefferson's Ob- States, whose product and circum- created by Mason's phrase: "There serration." stances are totally different from is no Declaration of Rights." But whatever his other objec- that of the eight Northern and East- Months later, Hamilton was still try- tions, it was the issue of the bill of ern States, may be ruined." ing "to kill that snake" in Federalist rights that struck Jefferson. Not Mason also lambasted the vague No. 84. Oliver Ellsworth's "Land- long after Masor pamphlet construction of the Constitution holder" essays in 1787-88, perhaps reached Jefferson's desk in Paris and foresaw the "general welfare" more influential than the papers of the American minister was writing clause as a catchall term bound to "Publius," also made a frontal at- to'fiends at home in outspoken be abused. Although Mason specifi- tack on Mason's "Objections," as terms. Jefferson told Madison he cally called for declarations of free- did Federalist James Iredellin liked the Constitution but was dom of the press and trial by jury, North Carolina in 1788. alarmed by "the omission of a bill he lamented the ban on av post But the idea was too powerful. of rights," and, to John Adams's facto laws in the state legislatures Mason's pamphlet soon circulated son-in-law, Jefferson said bluntly: since "there never was nor can be a along the Atlantic seaboard and by "Were I in America, I would advo- legislature but must and will make the onset of winter the "Objec- cate it the Constitution] warmly till such laws, when necessity and the tions" had appeared in newspapers nine states should have adopted, public safety require them." in Virginia and New Jersey. Mason and then as warmly take the other Gloomy to the end, Mason pre- himself paid for a second printing side to convince the remaining four dicted that without an immediate and sent Washington the pamphlet that they ought not to come into it ban on slave trading the nation early in October, claiming that "a tiil the declaration of rights is an- would be "weaker, more vulnera- little Moderation & Temper, in the nexed to it." ble, and less capable of defense," latter End of the Convention, might In a backhanded way, Jefferson's and under the Constitution would havE removed" his misgivings. plan became the node'. Alarmed by "set out [as]moderate aristocra- Mason also mailed one to Jeffer- Anti-Federalist strawgy that aimed cy" then degenerate into either a son, then at his diplomatic post in at a second fedr ! convention, monarchy or "tyrannical aristocra- Paris, explaining that "These Objec- friends of the Constitutiohanted cy." "It will," he predicted, "most tions of mine were first printed very to derail any scheme for ano.her probably vibrate some years be- incorrectly, without my Approba- national gathering. Although Madi- tween the two, and then terminate tion, or Privity; which laid me under son was concerned that a bill of in the one or the other." some kind of Necessity of publish- rights would offer little real protec- First as a handwritten text and ing them afterwards, myself.... You tion and by enumerating s me then as a printed pamphlet, Affason'L will find them conceived in general rights put others in jeopardy I. con- "Objections" made the rounds in Terms; as I wished to confine them cessions on the bill-of-rights issue Philadelphia's political circles dur- to a narrow Compass." Mason went could forestall demands for a sec-

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Pitt, 444 re.alf,t f31;21 P.M 0 I,,,A044.4...t..0 W:K/ ',:a.,...:.,1".r41 3 ,...) e,,,,-11.111.,v. ,%,-1 l'/:Z.,:gI in11. 4. /4/rya Ains it...etgSe y0: ii,: it, 17. gg° 4. f (441?Mgt,;,-''''1.1 f-19 ;fill..0.(4. tg 5 9 ing.,..4,Mv ,e.,,,hfib.,-,,,,,,,,,,p.t..,4/.4.,,, 044 .1 .4; flx., 4.7eirt.,:r. , -17...tt:..ai.'1.,,.4.:trigiAe.t:44Pst.;14. iiled,;),,4;(1.1iti/4$:%14$,...r, and convention, Federalists came MP1f4et 441),,e4'. .4. 4 1414, ,Iitiktra,.>.... e:/14:41:,. . . to realize they must pay that price. Al, . lk Starting at the Massachusetts ratify- 4:41u!glif.4.1,/tititx talili.,4-/.1././4/1.,:i,r.)71,t-f?4,-.:qm,:.4,/44, ing convention in February 1788, 4,44*4Qiizepi044#4, ''34,..4414144;,;ta:4.-A;17i-4""4:/."k1 Federalists in charge of counting votes abandoned their adamant po- 411;4: :ip...,7*,.firett(r4;',-1.4.414/ sition and began to talk about "recommendatory amendments." By conceding that a bill of rights ought to be considered by the first Congress, Madison and his co- workers whittled away at the Anti- Federalist majority in Virginia Their concession on a bill of rights made it easier for committed Anti- Federalist delegates to swallow the bitter pill of ratification, and in Vir- -.11eVttf-41 ghtia the Federalists' gesture also e4.6-Peyisii..141;; gave proponents of thConstitu- .i#1"77"q0k,./rira."4(4117)R,OVSLOS 41;40,411;145.14{. tion a way to defend a vote in r(lf, tr. V opposition to Patrick Henry and Mason, who were still not assuaged. "Objections to this Constitution of Government" by George Mason. Library of Congress. As they saw their majority melting away, Henry and Mason wanted jections." son's standing as a "founding fa- their proposed amendments, in- By not signing the Constitution, ther" was long under a cloud, owing cluding a bill of rights, to be a Mason had gained a principle but chiefly to his stance on the Consti- condition for Virginia's ratification. lost a friend. Or almost so, for a tution. His patriotic service in pre- When the convention rejected that painful eotrangement between Mad- paring the Fairfax Resolves in 1774, tactic and voted instead, as the ison and himself did not abate until his cardinal role at the Virginia Con- Massachusetts delegates had done, Madison introduced a bill of rights vention of 1776, his authorship of for "recommendatory" amend- in Congress in September 1789. Ma- that state bill of rights, until 1829), ments, the game for the staunchest son quickly praised the provisions and his offering of time, talent, and Anti-Federalists was over. The Con- in a letter to Congressman Samuel money to the American cause be- stitution was quickly ratified. Griffin from Virginia, knowing his tween 1776 and 1781 became only But James Madison had learned letter would be seen by Madison. "I dim memories, hardly mentioned in his lesson. A few months later, have received much Satisfaction the standard histories. By the early when he ran for a seat in that first from the Amendments to the feder- twentieth century, however, atten- Congress, Madison had to assure al Constitution, which have lately tion to civil liberties began to in- constituents that "it is my sincere passed the House of Representa- crease and scholars came to note opinion that the Constitution ought tives," Mason wrote, "I hope they the original role Mason played to be revised." What changes would will also pass the Senate. With two when he insisted on constitutional he seek? Nothing less than a bill of or three further Amendments... I protection for a free press and oth- rights containing "the most satis- cou'd chearfully put my Hand & er civil rights. By 1988, Mason was factory provisions for all essential Heart to the new Government." beginning to reap some of the ac- rights,particularly the rights of One of the most self-effacing men claim he deserved for his simple Conscience in the fullest latitude, ever to serve the American people, warning: "There is no Declaration the freedom of the press, trials by Mason regretted the tensions that of Rights." jury, security against general war- grew out of the ratification struggle. rants &c." It seems unlikely that Eventually, he welcomed Madison Madison would have made such an and Jefferson back to his home at Robert A. Rutland, former editor-in- chief of the Papers of James Madison, is about-face without 'he storm of Gunston Hall, and their friendship now research professor of history at the protest first raised by Mason's "Ob- fell into the old grooves. But Ma- University of Tulsa. this Constitution 13 o Zs.;247 The Nationalization of the Bill of Rights: An Overview by RICHARD C. CORTNER

n the 1980s, amid heated discus- stitution, adopted in 1868 in the win over their opponents, the Fed- sion about constitutional rights, wake of the Civil War, specifically eralist supporters of the new Con- few Americans recall that for the clause that prohibits the states stitution promised to consider most of our history the Bill of from depriving any person of life, amendments guaranteeing basic Rights did not apply to the exercise liberty or property without "due freedoms. Keeping that promise, of power by state and local govern- process of law." The process by the first Congress in 1789 submitted ments. Until the 1920s, only state which the Court has applied most for ratification amendments mak- constitutions and state law prevent- of the rights in the Bill of Rights as ing up the Bill of Rig!'ts, drafted ed local governments from en- restrictions upon state and local largely by James Madison; the Bill croaching upon basic liberties such governments via the "due process" of Rights formally became a part of as freedom of speech, press, reli- clause of the Fourteenth Amend- the Constitution in 1791. gion and the right against compul- ment is usually referred to as the Advocates of a bill of rights sory self-incrimination. "nationalization" of the Bill of feared that the new national gov- In 1897, however, the Supreme Rights. ernment created by the Constitu- Court for the first time lxgan to The Constitution that emerged tion would encroach upon personal extend the protections guaranteed from the Philadelphia convention in libertiesThus, according to the in the Bill of Rights to exercises of 1787 did not of course include a bill common understanding of the peri- power by state and local govern- of rights; during the ratification od, the rights specified in the Bill of ments. That first decision and oth- struggle ir the states, that omission Rights checked only the powers of ers since have been based on the provoked the most heated criticism the national government; they did Fourteenth Amendment of the Con- 6- the new frame of government. To not apply to powers retained by

The chamber of the Supreme Court, 1862-1935 (restored), in the Senate building. Supreme Court Historical Society.

"" '

14 246 this Constitution state and local governments. The guaranteeing fundamental individ- U.S. Supreme Court confirmed this row spectrum of relatively unim- ual rights against deprivationby portant rights against deprivation understanding in Barron v. Balti- state and local governments. more in 1833, and it became thereby the states. Although Congressman John This narrow reading of the Four- by a basic principle of constitution- Bingham (R., Ohio) and Senator al law. Ja- teenth Amendment carriedover as -ob Howard (R., Mich.) hadsug- well to the Court's construction gested during debates of The Fourteenth Amendment on the Four- the due process clause, and fora teenth Amendment in Congress time that clause also seemed des- that the privileges and immunities tined to become a constitutional In 1868, the ratification of the clause might apply all of the Fourteenth Amendment in the Bill of dead letter. In 1884, in Hurtadov. Rights to the states, interpretation California, the Court rejectedan wake of the Civil War placednew of that clause by the Supreme Court restrictions upon statepower. argument that the due process denied it such an important roleas clause required the states to indict Many of its framers entertained the a source of civil liberties. In the hope that the Fourteenth Amend- defendants in criminalcases by Slaughter House Cases, decidedin grand juries, a right guaranteed in ment's provisions prohibiting the 1873, the Court held that the states from denying persons the most serious federal criminalcases by basic rights of the individualhad the Fifth Amendment of the Billof privileges and immunities of U.S. state law and state constitutionsas citizenship (the "privileges and im- Rights; in the process, the Court their source, notwithstandingthe adopted reasoning that denied that munities" clause) or denying them addition of the Fourteenth Amend- life, liberty or property without due any right specifically guaranteed in ment to the Constitution, andthat the Bill of Rights could apply to the process of law (the "due process" the privileges and immunities clause) might become the basesfor states via the due process clause of clause guaranteed onlya very nar- the Fourteenth Amendment. The Hurtado case therefore appeared to foreclose the possibility that the due process clause wouldserve as a vehicle or the extension of the rights in the Bill of Rights to the states, just as the Slaughter House Cases extinguished thesame potential for the privileges and immunities clause.

"Substantive Due Process" Pressure on the Supreme Court by business interests, however, eventually undermined thereason- ing adopted by the Court inthe Hurtado case. Until 1890, "due process" had been commonly interpreted by the courtsas essentially a procedural limitationon governmental powerthat is, in taking action depriving persons of life, liberty or property, the government must act in a manner thatwas procedurally fair. "Due process" meant that individuals had to have notice of the government's action and a hearing before the action occurred. Apprehensive about this Constitution 2 4 15 pending state regulatory legislation, the Bill of Rights had been applied teen years. Then, in 1925, the Court business interests, particularly the to the states ,ria the due process reviewed Benjamin Gitlow's con- railroads, now began to argue that clause of the Fourteenth Amend- viction in New York for advocating their economic and property rights ment. the violent overthrow of the gov- deserved more than fair govern- By its decision in the Chicago, ernment, which he claimed de- mental procedures under the due Burlington & Quincy Railroad prived him of freedom of expres- process clause, that there were case, the Court implicitly repudiat- sion under the due process clause some governmental actions affected the reasoning in the Hurtado of the Fourteenth Amendment. ing "liberty" and "property" that case of 1884, in which it had held While the Court affirmed the con- were it under the due that no right specifically guaran- viction in Gitlow v. New York in process clause regardless of how teed in the Bill of Rights could 1925, it took a major step in the such actions were carried out. apply to the states via the due proc nationalization process by declar- Although initially reluctant to ac- ess clause. ing that for "present purposes we cept this concept of "substantive may and do assume that freedom of due process," in an 1890 case, Chi- Fundamental Rights speech and of the presswhich are cago, Milwaukee & St. Paul Rail- protected by the First Amendment road v. Minnesota, the Supreme The Court attempted to reconcile from abridgement by Congress Court finally expanded the meaning the contradiction between the two are among the fundamental person- of the due process clause to em- cases when the next stage of the al rights and 'liberties' protected by brace substantive rights as well as nationalization process opened in the due process clause of the Four- procedural protections. In doing so, 1908 with the decision in Twining teenth Amendment from impair- the Court granted broad protection v. New Jersey. In Twining, the ment by the states." to property rights and also stymied Court rejected a claim that the self- Whether the "assumption" in the regulation of co.iimercial enter- incrimination clause of the Fifth Gitlow case was a reality remained prises by the states. But the new Amendment applied to the states unclear until 1931. In that year, the interpretation of due process also via the due process clause, but at Court decided Stromberg v. Cali- had a fundamental impact upon the the same time it attempted to for- fornia and Near v. Minnesota aryl nationalization of the Bill of Rights. mulate a general rule governing the riled squarely that the due process Although most of the rights in the relationship of the Bill of Rights to clause guaranteed both freedom of Bill of Rights are procedural, the the due process clause. Although speech (Stromberg) and freedom of rights in the First Amendment are the rights in the Bill of Rights did the press (Near). "It is no longer substantive. Without the Court's ac- not apply to the states exactly as open to cioubt," Chief Justice ceptance of the idea that the due they applied to the national govern- Charles Evans Hughes wrote in the process clause embraced substan ment, the Court concluded, the due Near case, "that the liberty of the tive as well as procedural rights, the process clause might embrace press and of speech is within the theoretical basis for the application some rights similar to those in the liberty safeguarded by the due of the First Amendment rights to the Bill of Rights because they were process clause of the Fourteenth states via the Fourteenth Amend- essential to the concept of due Amendment. It was found impossi- ment would not have existed. process of law. The test was this: ble to conclude that this essential The breakthrough regarding the "Is it a fundamental principle of liberty of the citizen was left unpro- nationalization of the Bill of Rights liberty and justice which inheres in tected by tne general guaranty of occurred in 1897, Chicago, Bur- the very idea of free government fundamental rights of person and lington & Quincy Railroad Co. v. and is the inalienable right of a property." Chicago. In this case the Court held citizen of such a government?" The After the freedoms of speech and that the due process clause re- Twining case thus opened the door press had been nationalized, the quired the states when taking pri- to the future application to the question remained about other vate property for a public purpose states of some rights at least similar rights in the First Amendment. Did to give the owners just compensa- to some of those in the Bill of they come under the Court's defini- tiona right also guaranteed by the Rights. tion in the Twining case, as funda- 'just compensation" clause of the Despite the promise of the Twin- mental principles of liberty and jus- Fifth Amendment of the Bill of ing case, the nationalization proc- tice which inhere "in the very idea Rights. For the first time a right in ess nevertheless stalled for seven- of free government" and which are

t this Constitution 16 230 Without the Court's acceptance of the idea that the dueprocess clause embraced substantive as well as procedural rights, the theoreticalbasis for the application of the First Amendment rightsto the states via the Fourteenth Amendment would not have existed.

"the inalienable right of a citizen ci fact as well as form. In Powell v. criminal trials. The Court took the such a government"? The Court ad- Alabama, decided in 1932, it ruled occasion of its decision in Palko v. dressed these questions in short that uneducated, indigent black Connecticut in 1937 to restate the order. The right of assembly and youths could not receive a fair trial general principles it was following petition, the free exercise of reli- in a capital case unless they were in the nationalization of the Bill of gion and the prohibition of an es- afforded the effective assistance of Rights. Speaking for the Court in tablishment of religion were held to state-appointed counsel in their de- the Palko case, Justice Benjamin be applicable to the states via the fense. In 1936, the Court similarly Cardozo at the outset rejected the due process clause in the Court's held in Brown v. Mississippi that argument that the due process decisions in DeJonge v. Oregon the admission of a coerced confes- clause applied all the rights in the (1937), Cantwell v. Connecticut sion as evidence against a state Bill of Rights to the states. If some (1940) and Everson v. Board of criminal defendant also violated the but not all of the rights in the Bill of Education (1947). By 1947, there- due process clause. In neither Pow- Rights applied to the states, the fore, the nationalization of the First ell v. Alabama nor Brown v. Missis- question then became one of how Amendment was complete, with all sippi, however, did the Court hold the Court distinguished between of the rights in that amendment that the "assistance of counsel" those rights that did apply to the having been held to be applicable to clause of the Sixth Amendment or states and those that did not. The the states via the due process the Fifth Amendment's "self-incrim- answer, Cardozo said, was that the clause. ination" clause applied to state due process clause imposed upon criminal trials under the due proc- the states those rights that were "of Criminal Procedure ess clause. Rather, the Court was the very essence of a scheme of focusing on the question of whether ordered liberty," such as freedom The third phase of the national- fair trials had in fact been afforded of speech, as well as those rights of ization of the Bill of Rights paral- the defendants in those cases, and criminal procedure that were "es- leled the nationalization of the First it concluded that the lack of coun- sential to the substance of a hear- Amendment and concerned the sel in a capital case and the use of a ing." The question of whether a question of which criminal proce- coerced confession as evidence de- state criminal trial violated the due dure protections like those in the nied the right to a fair trial. process clause, Cardozo added, was Bill of Rights applied to the states. In the Powell a d Brown cases, whether it involved "a hardship so The Court first began to increase its the Court was therefore following shocking that our polity will not attention to questions of criminal the rule of the Twining case, that endure it." Applying this test to the procedure under the due process the due process clause imposed Palko ease, he concluded that the clause in Moore v. Dempsey in 1923. upon the states in the conduct of Fifth Amendment's prohibition of At its most rudimentary level, "due criminal trials certain rights simi- double jeopardy was not applicable process" had always required that lar to some of those in the Bill of to the states, just as the right to he the defendant receive adequate no- Rights, but if such rights did apply indicted by a grand jury, right tice of the charges and a fair trial or to the states, they were only similar against compulsory self-incrimina- hearing in criminal cases, but in and not identical to their counter- tion, and jury trials in criminal and Moore v Dempsey the Court began parts in the Bill of Rights. The "fair civil cases were equally inapplica- to insist that state criminal trials trial" rule, involving the application ble to the states via the due process must n fair in fact as well as form to state criminal trials of rights sim- clause. to meet the requirements of "due ilar but not identical to some of The decision in the Palko case process." If a defendant's trial met those in the Bill of Rights, became expressed the consensus the Court proper formal standards but the the Court's dominant approach to had reached regarding the national- trial was mob-dominated, the Court issues of criminal procedure under ization of the Bill of Rights at the held in Moore, the state had never- the due process clause until 1961. end of the 1930s, but it left unclear theless violated due process of law. Thus, by the late 1930s, the Court whether the First Amendment Following the fair trial rule that had not only begun the nationaliza- rights which had been nationalized emerged from Moore v. Dempsey, tion of the First Amendr ent, which were similar or identical to those the Supreme Court focused more it would complete in 1947, but it in the Bill of Rights. Vy'as the free- closely on which elements were had also started tightening the dom of speech and of the press, necessary to ensure a fair trial in meaning of due process in state recognized in the Stromberg and - this Constitution !) ..; 1.3 .-:" 251 17 '4?

to the fair trial rule did yield two important decisions in the field of criminal procedure during the 1940s. In a 1948 decision in In re Oliver, the Court stated that the due process clause required the states to hold public criminal trials, a requirement that was also a part of the Sixth Amendment. And in Wolf v. Colorado, decided in 1949, the Court declared that the due process clause embraced at least "the core" of the Fourth Amend- ment and therefore prohibited state officers from engaging in unreasonable searches and seizures. It further held, however, that the federal exclusionary rule, which barred from trial evidence seized in violation of the Fourth Amendment, did not apply to the states. So, after Wolf v. Colorado, state officers were prohibited from engaging in unlawful searches And seizures, but the evidence they obtained by such illegal measures could continue to be admitted as evidence in state criminal trials. Total Incorporation? A 1947 case revealed that the consensus of the Court regarding the nationalization issue, expressed in Palko, had been shattered. In Adamson v. California, the majority of the Court once again rejected the proposition that the Fifth

Charles Evans Hughes, Chief Justice of the United States, 1930-1941. Library of Congress. Amendment's self-incrimination clause applied to the states and reaffirmed the ruling in Twining v. Near cases in 1931, somehow dif- the First Amendment itself. The re- New Jersey on that point. Justice ferent from the freedoms of speech sult was, however, considerable Hugo Black dissented however, and press guaranteed in the First theoretical tension betwee.: the contending that a study of the his- Amendment? The Court soon pro- Court's treatment of First Amend- torical evidence regarding the provided the answers. By the early ment rights and its treatment of posal and ratification of the Four- 1940s, the language used in its deci- criminal procedure rights under the teenth Amendment had convinced sions involving First Amendment due process clause. him that the intent of the framers of rights clearly indicated that it con- Despite the disparate treatment the amendment was to apply all of Aidered the First Amendment rights by the Court of nationalized First the Bill of Rights to the states in the atlicable to the states to be identi- Amendment rights and rights of identical way in which it applied to ca , not merely similar, to those in criminal procedure, its adherence the national government. He argued

18 this Constitution 1, ,), 252 The test was this: "Is ita fundamental principle of liberty and which inheres in the justice very idea of free government and is theinalienable right of a citizen of sucha government?"

further that defining the meaningof Bill of Rights did apply to the states, the right to a trial by jury(Duncan the due process clause of theFour- it applied in the identicalway as it teenth Amendment to embraceall v. Louisiana, 1968), and, finally, the applied to the nationalgovernment. double jeopardy clause of the Fifth of the rights in the Bill ofRights The incorporationist theory of would prevent the Court from read- Amendment (Benton v. Maryland, nationalization was stoutly resisted 1969) were applicable to the ing its own personal predilections by Justice John Marshall Harlan states into the due process clause. II in the identical way in whichthey (grandson of the total incorpora- applied to the national government. Black's position favoring the "to- tionist) throughout the 1960s.Har- tal incorporation" of theBill of With the completion of thenation- lan insisted that the Bill of Rights alization process in the Benton Rights into the dueprocess clause had not been intended historically de- had been anticipated byJustice cision in 1969, the only rightsre- to apply to the states at all. The due maining in the Bill of Rights John Marshall Harlan I during the process clause of the Fourteenth that nineteenth and early twentieth had not been made applicableto cen- Amendment, he conceded, did im- the states were the Second turies, but Harlan had usually been pose upon the states certain funda- and Third Amendments, the "grandjury in lonely dissent on thatissue. mental rights similar to those in Black's dissent in the Adamson the indictment" clause of the Fifth Bill of Rights, but the crucialpoint Amendment. the Seiecnth Amend- case, however, attracted thesup- for Harlan was that thoserights port of three of his colleagues, Jus- ment's requirements of jury trialsin found in the due process clausehad civil cases and the "excessive tices William 0. Douglas, WileyRut- as their source the due fines ledge and Frank Murphy, process and bail" clause of theEighth so that clause itself andwere therefore Amendment. the "total incorporation" position only similar to but not identicalto received the largest numberof When he introduced in Congress the rights in the Bill of Rights.De- his proposed amendmentsthat votes in the Adamson case than it spite Harlan's eloquent defenseof had ever received before. The would become the Bill ofRights, ma- his position, he wasincreasingly James Madison had included jority position was vigorously de- isolated on the Court. re- fended by Justice Felix Frankfurter strictions on statepowers as well The breakthrough for theincor- in a concurring opinion inthe as those directed at the national porationists came in Mappv. Ohio government, but Congress ultimate- Adamson case, and despite Black's in 1961, when a majority ofthe challenge in his dissent, the Twin- ly rejected the proposedrestric- Court held that the full Fourth tions on state power. By thetime ing "fair trial" approach to thena- Amendment as well as the federal tionalization of criminal procedure the Supreme Court had concluded exclusionary rule, forbiddingthe the nationalization of the Bill rights remained dominant through- use of illegally seized evidence in of out the 1950s. Rights in the late 1960s, however,it court, applied to the states via the had more than madeup for Madi- due process clause. There followed Selective Incorporation son's failufe to restrict thepowers a series of decisions in which the of the states in 1789. Indeed,the Court held that "cruel and unusual Court had through the nationaliza- During the late 1950s,a new ap- punishments" clause of the Eighth proach to the theory of nationalization process transformed the"due Amendment (Robinsonv. Califor- process" clause of the Fourteenth tion, offered by Chief JusticeEarl nia, 1962), "assistance of counsel" Warren and Justice WilliamBren- Amendment into a second billof clause of the Sixth Amendment rights applicable to the nan, began to emerge on the Court. (Gideon v. Wainwright, 1963), statesa The new theorycame to be called self- bill of rights far more salientto the incrimination clause of theFifth liberty of the average "selective incorporation,"since the Amendment (Malleyv. Hogan, American theory rejected Black'sargument than the original authored byMadi- 1964), the provisions in theSixth son and ratified by the states in that all of the rights inthe Bill of Amendment guaranteeing defen- Rights applied to the states 1791. via the dants the right to confrontand Fourteenth Amendment. However, the cross-examine prosecution wit- selectiveincorporationist3 nesses (Pointer v. Texas, 1965), the Richard C. Cortner is professor ofpoliti- agreed that most of the rightsin the right to a speedy trial (Klopfer cal science at the University of Bill of Rights did apply to the v. Arizona. states, North Carolina, 1967), the rightto He is the author of The Sr!ps-cmeCourt and they agreed with Blackon a subpoena favorable witnesses and the Second Bill of Rigbts (1981)and A crucial issuethat ifa right in the Mob Intent on Death: The NAACPand the (Washington v. Texas, 1967),and Phillips County Riot Cases (1988) this Constitution -'1 253 19 Egammairmomminsme The Bill of Rights: Protector of Minorities andDissenters by NORMAN DORSEN

The American political system is ment posse& ng only limited pow- without a commitment, or at least a built upon two fundamental ers, leaving to the states all other strong indication, that one would principles. The first is majority powers over its inhabitants. Al- soon be introduced. The Framers rule through electoral democracy. though state authority could not be promptly made good on this com- This precept is firmly established in exercised inconsistently with the mitment, and the Bill of Rights was our culture. The second fundamen- Constitution or acts of Congress, ratified in 1791. Thus the new na- tal tenet is less established, less this formula nevertheless left the tion's novel and creative structure understood, and much more fragile. states with dominant authority over that simultaneously provided for This is the principle that even in a the people's welfare. majority rule and limitations on democracy the majority must be The Constitution also created a that rule was in place. limited in order to assure individual tri-partite division of national au- Two further ingredients were liberty. thority by reposing separate needed to make the system work. The Bill of Rightsthe first ten spheres of power in the Executive, The first occurred in 1803, when the amendments to the Constitution Legislative and Judicial branches. Supreme Court unanimously ruled is the primary source of the legal While the chambers are not airtight, in Marbury v. Madison that the limits on what the majority, acting they serve to fulfill the theory offederal courts could enforce the through the government, can do. our government, which (as theSu- Constitution by invalidating stat- Such limits guarantee rights to all preme Court said in 1874) "is op- utes passed by Congress that were but in practice they often serve to posed to the deposit of unlimited inconsistent with it. In the twenti- protect dissenters and unpopular power anywhere." eth century, the Supreme Court put minorities from official wrongdo- The original Constitution did not the final component in place by holding that almost all provisions of ing. This process is indispensable to merely seek enhance civil liberty a free society, which in turn isthe by dividing the authority to rule. It the Bill of Rights restrict unlawful highest purpose of a.nized gov- also contained some explicit safe- actions by state and local officials ernment. As John.J c ke wrote, guards. It provided that the privi- as well as the nations' government. "However it may be mistaken, the lege of habeas corpus, which re- The Bill of Rights protects all end of law is not to abolish or quires a judge to release an Americans, but it is of particular restrain, but to preserve and en- imprisoned person unless he is be- value to minorities and dissenters. Supreme Court Justice Hugo Black large freedom." ing lawfully detained, may not be How the Bill of Rights came to be suspended except in cases of rebel- expressed this thought eloquently appended to the original Constitu- lion or invasion. The ex post facto in 1940: tion is a fascinating tale. How over and bill of attainder clauses seek to Under our constitutional system, two centuries it came to mean what guarantee legislativefairness by courts stand against any winds it does today is a complex story prohibiting laws that make new that blow as havens of refuge for which is not over yet. In the words crimes out of conduct that has al- those who might otherwise suffer of Chief Justice John Marshall, the ready occurred and by requiring because they are helpless, weak, Constitution is a document "intend- laws to operate generally and not outnumbered, or because they ed to endure for ages to come, and, against particular people. Article III are non-conforming victims of consequently, to be adapted to the guaranteesnjury trial in all federal prejudice and public excitement. various crises of human affairs." criminal cases, defines treason nar- While the Supreme Court has not always been faithful to that trust, it The original Constitution protect- rowly, and imposes evidentiary re- ed civil liberty but it did so incom- quirements to assure that this most has often used the Constitution to pletely. The principal means it em- political of crimes will not be lightly shield the powerless. ployed wasstructuralthe charged. Article VI prohibits reli- ingenious carving up of governmen- gious tests as a qualification for Free Expression tal power both vertically and hori- public office. zontally, through the creation of a But these safeguards were not The First Amendment guarantees federal system and the separation enough. In 1787, many people were of free speech and free press serve of powers within the national gov- displeased by the absence of an an especially important function in this respect by prohibiting the government. explicit Bill of Rights in the newly- It is well known that the Consti- drafted Constitution, and some ernment from forcing everyone to tution created a national govern- state convi..tions refused to ratify espoe officially sanctioned opin-

this Constitution 20 2 ti ions. Early Supreme Court cases on free speech were not promising. During World War I, appellants had been prosecuted for opposing en- listment in the armed services and protesting American involvement in the war, extremely unpopular positions at that time. The convictions were all affirmed in 1919, and the defendants jailed, some for many years. However, by 1931 an enthusi- astic displayer of a red flag and the publisher of a "scandalous and de- famatory" newspaper won their free speech and free press cases, although they were equally unpopular to most Americans. Fittingly, public debate and private reflection "SUC-/- PrIA 5-1111W3 7- DEFCNT,GR had begun to lead informed opinion 2-111)K.tzT 9N,5() 1T5 c7,^ 1(A-r tC.A. bkA-C to appreciate the value of free 11-5 J c1.041- Ti-V iE i-kC-(7-At-1-E-0 US A OtiNctA expression in a free society. Justice tip jcp.Ks, Oliver Wendell Holmes, who wrote the opinion siistaining the first convictions for speech relying on a "clear and present danger" standard, voted to reverse the later convictions. purpose. But it sustained the con- cies, to avert the evil by the process From the 1930s through the viction of a man for burning his of education, the remedy to be ap- 1950s, free speech claims were draft card as a protest against the plied is more speech, not enforced pressed by Communist activists war. More recently, it rejected pro- silence." and radical labor uniwt leaders, and tests against the government's poli- A free society has con' -fence in in the 1960s and 1970s by civil right cies towards poor people that were its people to separate the wheat protestors, the Ku Klux Klan and expressed through the form of from the chaff. A wise and princi- the American Nazi Party. Although sleeping outdoors in a public park. pled conservative, Justice John the results were mixed, in 1969 the The framers of the First Amend- Marshall Harlan, recognized that Supreme Court enunciated the prin- ment expected it to promote demo- "the constitutionalright of free ciple broadly protective of free cratic self-government and facili- expression is powerful medicine in expressionthat political expres- tate orderly social change through a society as diverse as ours." "It is sion cannot be punished unless it is the medium of new and unfamiliar designed," he said, directed to inciting or producing ideas; to check possible govern- ... to remove governmental re- imminent lawless action and is like- ment corruption and excess; and to straints from public discussion, ly to incite or produce such action. advance knowledge and reveal putting the decision as to what The Court has not been as hospi- truth, especially in the arts and sci- views shall be voiced largely into table to claims under the First ences. The framers recognized that the hands of each of us, in the Amendment when "speech" and some speech would be controver- hope that use of such freedom "non-speech" elements a com- sial, some even repugnant But their will ultimately produce a more bined in the same tours(A' con- belief in free speech rested upon capable citizenry... and in the duct. The Court has protected the thepremisethatcensorship belief that no other approach right of children to wear an arm- brought worse consequences. As would comport with the premise band to class to protest the Vietnam Justice Brandeis wrote in 1927, "If of individual dignity and choice War and the right to burn or disfig- there be time to expose through upon which our political system ure the American flag for the same discussion the falsehood and falla- rests.

this Constitution 2 5 5 21 Religious Freedom The First Amendment also contains two clauses providing for religious liberty: one guarantees the "free exercise of religion" and the other bars laws that put state power behind religion or entangle the state with religious activities. These clauses also have served to safeguard minorities. This protection seems particularly appropriate because many of our early settlers Puritans, Roman Catholics, Hugue- nots, and others fled religious persecution in Europe, where the dominant national churches were often intolerant and cruel to those who professed dissenting beliefs. At different times in American history, Christiansects, Jews, Mormons, and atheists all have relied on the First Amendment guarantee of religious liberty to protect their rights against official and private discrimination; more recently Moslems, Buddhists, and the Unification Church have also done so. Few constitutional provisions have proved more decisively that guarantees of liberty must be accorded to all or they will erode. Controlling State Action Additional provisions of the Bill of Rights protect unpopular individuals and groups from other kinds of state action. The Fourth Amend- ment guarantee that the people will be "secure in their persons, houses, Oliver Wendell Holmes, Associate Justice, 1902-1932 (left) and Louis C. Brandeis, Associate Justice, 1916-1939. Supreme Court Historical Society. papers, and effects, against unreasonable searches and seizures" can be traced to English history. In The desirability of protecting un- forcementchilling investigations, 1763, repeated abuses led William popular expression also rests on surveillance of lawful activity, se- Pitt the Elder to defend in Parlia- hard practical considerations. The cretinformers,unauthorized ment the sanctity of one's home: government apparatus required to searches of homes and officesare The poorest man may in his cot- impose limitations on speech, by its often carried out by police or zeal- tage bid defiance to all the force very nature, tends toward adminis- ous officials without adequate con- of the Crown. It may be frailits trative extremes. History has cern for the consequences of their roof may shakethe wind may shown that the techniques of n- actions. low through itthe storm may 22 266 this Constitution The doctrine of judicial review, which gives the courts final authority to define constitutional rights, is the most important original contribution to the American political system to civil liberty.

enter, the rain may enterbut defense against a government uals wish to exercise them in a way the King of England cannot en- charge. that offends the majority. Thus, Ala- terall his force dares not cross bama sought to interfere with the the threshold of the ruined tene- Equal Treatment associational rights of the NAACP, ment! the federal government sought to In response to such protests, Par- Despite its broad reach, the Bill deny Communists the right to travel liar gent enacted new legal protec- of Rights (like the Constitution it- abroad, and many states imposed tions in England. But high-handed self) was incomplete because it did restraints on abortion. The protec- treatment by British governors was, not address outright the issue of tion of these individual rights not in the words of the Supreme Court, inequality or prohibit government only comports with the premises of "fresh in the memories of those discrimination. The original Consti- a free society but is supported by who achieved our independence tution in several clauses counte- the language of the Ninth Amend- and established our form of govern- nanced slavery, and in most states ment, which provides that "The ment." The right of a person to the right to vote at the time of enumeration in the Constitution, of privacy in his or here home became ratification was limited to property- certain rights, shall not be con- one of the et..)...itials of our consti- holding white males. Although the strued to deny or disparage others tutional system. Fourteenth Amendment attempted retained by the people." The lessening of restraints on of- to erase disabilities against former The Bill of Rights was not de- ficial misconduct would undermine slaves by prohibiting states from signed as an abstraction. If it were, the rights of all. Although private denying the "equal protection of the the rights it contains would have no property is not always a refuge, laws," the end of Reconstruction in more value than the barren prom- police and other officials must se- the south after 1876 and unsympa- ises entombed in many totalitarian cure a judicial warrant based on thetic Supreme Court decisions un- constitutions. To be real,rights probable cause or they must justify dercut the promise of equality for must be exercised and respected. a search on other grounds. The generations. The political branches of govern- alternative to these safeguards is a After a long campaign by civil mentlegislators and executive of- regime where no citizen is safe rights groups, the Supreme Court in ficialscan be instrumental in pro- from a dreaded knock on the door 1954 invalidated state-supported tecting rights, but majoritarian by officers who, unaccountable to segregation in Brown v. Board of pressures on elected representa- law, may violate privacy at their Education, and the movement to- tives are great during times of cri- discretion, the very evil the Fourth wards equal treatment gathered sis, when the stress on liberty is Amendment was designed to pre- momentum. Much public and pri- most acute. A nation threatened vent. vate discrimination persists in the from without israrely the best Similarly, the right to counsel United States, but there have been guardian of civil liberties within. As contained in the Sixth Amendment enormous gains in recent decades already noted, President Wilson prevents the government from mis- as Congress, the Executive Branch, presided over massive invasions of using its power by providing that and the states, reinforced by judi- free speech during World War I. In citizens are entitled to legal advice cial decisions, have provided in- addition, President Roosevelt ap- when accused of crime. In the fam- creased protection for racial minor- proved the internment of Japanese ous Scottsboro case (Powell v. Ala- ities, women, nonmarital children Americans during World War II, and bama, decided in 1932), the Su- and other vulnerable groups. McCarthyism, the virulent repres- preme Court reversed the death sion of dissent, was a product of the sentence of black teenagers who Judicial Guardians Cold War of the late 1940s and early were convicted of raping two white 1950s. women in a trial in which they were The courts have also identified The vulnerability of politically ac- denied lawyers. A generation later, certain liberties not expressly enu- countable officials to popular pres- the Court held that the public must merated in the Bill of Rights but sure teaches that freedom is most pay for lawyers if an accused lacks well grounded in the constitutional secure when protected by life-ten- funds, recognizing that without the structure, such as freedom c asso- ured judges insulated from elector- assistance of counsel it is virtually ciation and the rights to travel and al retribution. The doctrine of judi- impossible for a defendant, guilty sexual privacy. These rights tend to cial review, which gives the courts or innocent, to mount a creditable come under attack when individ- final authority to define constitu- this Constitution , 25 7 23 i

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41-,?e",) Jot IN V. 41 i f

Protest against the Vietnam War outside the Pentagon, 1967. Library of Congress. tional rights, is the most important and again in each generation. Ex- Americans isoften thankless. original contribution of the Ameri- amples of frequently repetitive vio- Strong opponents have invoked can political system to civil liberty. lations of the Bill of Rights include both necessity and patriotism while James Madison summed it up when police misconduct, school book subverting liberty and dominating he said in proposing a bill of rights, censorship, and interference with the weak, the unorthodox, and the "Independent tribunals of justice free speech and assembly. Thus, the despised. Government efficiency, will consider themselves in a pecu- American Civil Liberties Union internationalinfluence,domestic liar manner the guardians of those foundit necessary to assert th order, and economic needs are all rights; they will be an impenetrable right cf peaceful demonstration important in a complex world. But bulwark against every assumption when that right was threatened by none is more important than the of power in the Legislative or Exec- Mayor Prank Hague's ban of labor principles of civil liberty and hu- utive." Thus, judicial review rein- organizers in New Jersey in the man dignity embodied in the Con- forces the central premise of the 1930s, by Sheriff Bull Connor's vio- stitution and Bill of Rights, our Bill of Rights that even in a democ- lence to civil rights demonstrators proudest heritage. racy the majority must be subject to in Alabama in the 1960s, by the limits. government'seffortstostop Norman Dorsen is Stokes Professor of antiwar demonstrators in Washing- Law, New York University and the pres- ton in the 1970s, and by the legal ident of the American Civil Liberties While the principles of the Bill of barriers erected b the city of Sko- Union. He is also a member of the Bicen- tennial Committees of the United States Rights are timeless, experience kie, Illinois, in 1977-78 to prevent Court of Appeals for the Second Circuit teaches that civil liberties are never AmP :lean Nazis from parading. and the Association of the Bar of the secure, but must be defended again the defense of ti"rights of City of New York.

256 this Constitution Slavery at the Philadelphia Convention by PAUL FINKELMAN

or the nineteenth century aboli- Jrder to create a stronger union. ated the Convention debates. At the tionist William Lloyd Garrison, the "three-fifths clause," for exam- beginning of the Convention the the Constitution was a terrible ple. The South insisted on including delegates from the large and small bargain, "a coYenant with death" slaves in the formula for determin- states engaged in heated debate and an "agreement with Hell." In ing representation, and the North over the nature of representation reviewing the first publication of quickly gave in on this point. under the emerging Constitution. James Madison's Notes on the Fed- But other concessions were eco- But during this debate James Madi- eral Convention of 1787, Wendell nomic and not necessary to win the son suggested that these were in Phillips, Garrison's brilliant ally, un- southern states over to the Consti- fact false issues. The real conflict derscored the compromise over tution. The South objected to taxes lay not between the large and small slavery at the Convention. The on exports because it feared such states, but between the northern Notes confirmed Phillips' suspicion taxes would undermine its e- and the southern states. Madison that slavery had been a critical is- based economy, which produced argued (as he wrote in his Notes on sue at the Convention and that "the tobacco, rice, and other commod- the Federal Convention): Nation at large were fully aware of ities for sale ov,!rseas. Although that the States were divided into this bargain at the time, and entered some northerners, and even a few different interests not by their into itwillingly and with open southerners, objected to losing this difference in size, but by other eyes." source of revenue, the South gained circumstances; the most material What was the nature of this bar- a complete victory on this issue of which resulted partly from cli- gain? Did the framers willingly en- without great difficulty. mate, but principally from their ter into a bargain with slavery? Other economic clauses were having or not having slaves. The Which of the framers participated even more problematical. Most of two causes concurred in forming in this bargain, and why? The an- the delegates from north of the the great division of interests h. swers to these questions can be Carolinas agreed that the slave the U. States. It did not lie be- found by examining the text of the trade was immoral, but some north- tween the large and small States: Constitution and the Convention ern delegates were willing to allow it lay between the Northern and and ratification debates. it as part of an elaborate compro- Southern, and if any defensive These sources suggest that the i Ilse over the power of Congress to power were necessary, it ought Garrisonians were more right than regulate commerce. The Constitu- to be mutually given to those two wrong in their analysis. Throughout tion prohibited Congress from stop- interests. the Convention, slavery affected the ping the importation of African By the middle of the Convention, debates on many issues, including slaves for twenty years, but signifi- most of 'he other delegates had representation in Congress, the cantly the Constitution did not come to agree with Madison. After method of choosing the president, guarantee an end to the African the "Great Compromise" solved the and the commerce clause. Ultimate- trade after that time. small state-large state conflict, the ly the Constitution did protect slav- Finally, the fugitive slave clause convention debates tended to be ery; and the convention debates burdened the free states by obligat- extremely sectional in nature. Dur- show that this outcome was no ing them to return runaway slaves. ing August, there were heated de- accident. In fact, the founders gave The South asked for this provision bates over taxation, commerce, and away more than they had to,if in late August, and the delegates political power. In all these debates, achieving union was their only goal. from the North, even those who slavery was almost always an un- Economic objectives lea northern intuitively knew that the clause was derlying issue, often it was the is- delegates to agree to additional pro- morally,if not politically, wrong sue. tections for slavery, in return for failed to put up much of a fight. By The debates which most illus- commercial concessions from this time the delegates had been in trate the problem of slavery and southerners. Philadelphia for over three months sectionalism at the Convention The debates over slavery raised and they no doubt wanted to end were those over the three-fifths political, economic, and moral the Convention and go home. clause and the African slave trade. questions. Some of the gains for Both took up a great deal of time slavery at the convention were the Slavery at the Convention and energy at the Convention. Both result of compromises that the debates directly inv^'.ved slavery. framers believed to be necessary in Slavery and sectionalism perme- Yet, despite these .imilarities, the

This ConsMution 1.1 2 5 9 25 An overseer doing his duty. Sketched from life near Fredericsburg." 1791, by Benjamin Latrobe. Maryland Historical Spat Baltimore. MD. two debates were in many ways and because they all contributed to In the early part of the Convention, quite different. the society. Slaves, however, posed demands for basing representation a problem. They were not citizens on "wealth" became a euphemism Slavery and Representation a:al were therefore prohibited from for counting slaves. For political participating in the political system. purposes northerners would have The "three fifths" debate was es- Furthermore, they had no interests preferred not to count slaves at all. sentially over political power. The that their owners wanted to have The South, on the other hand, want- Convention delegates accepted the represented by other citizens in the ed slaves counted fully for pur- notion that republican government government. On the contrary, tr Doses of representation. The three- required that wealth, as well as interests of slaveowners were 1, ". Ihsclauseemergedasa people, should be represented in opposition to those of the slaves. s.,,.npromise. The clause did not the legislature. The delegates as- Southerne. s argued, however, mp the black as "three-fifths of a sumed that counting all the free slaves produced a great deal of i.on." Rather, the clause simply people in a commurfty would be a wealth, which benefited the entire recognized that slaves were an inte- good basis for representation, be- nation. Thus, they demanded that gral part of America. The net result, cause all the free people had inter- any scheme for representation however, was that the votes of ests which needed to be protected based on population include slaves. southern whites were worth more :4. 26 2u this Constitution Slavery and sectionalism permeated the convention debates.

than those of northerners inthe tion for their negroes." But what laudable horror, so nefariousa election of representatives to Con- Morris would never agree to, the gress and in presidential elections. practice. South could not live without. While Morris had no chance of While some northern delegates Throughout the Convention, the registered moral indignationover defeating the three-fifths clause, it southern delegates had made clear is likely he hoped to winon the the three-fifths clause, the debates their demand that slaves be count- raised moral questions only indi- slave trade. Allowing the slave ed for calculating the numbers of trade to continue, after all,was rectly. Slavery, after all, alreadyex- representatives in Congress that isted in the states. Slaveswere peo- substantially different from the each state would get. Inresponse to three-fifths clause. Importingnew ple, and they did constitutean Morris, William Davie, a relatively important aspect of the economic slaves was hardly the same thingas obscure delegate from North Caro- taking into account the economic contributions of the South. Even lina, made his first major contribu- Rufus King of Massachusetts, who and political realities of existing tion to the debates, declaring "it slavery. Many slaveowners found despised slavery and objectedto was high time now to speak out." the African trade distasteful or im- most concessions in its favor, ad- Davie declared that the South mitted that the South deserved moral, even though they h.d few would "never confederate" if slaves qualms about owning slaves. North- some recognition for its "superior were not counted for representa- wealth"a wealth based erners who could tolerate a politi- on slaves. tion The three-fifths compromise cal compromise over existing Yet, the compromise was notan wLs the minimum acceptable to easy one for ali delegates. When the slaves would not necessarily accept him. Davie warned that if the dele- the idea that They sanctioned the three-fifths clause was firstpro- gates adopted anything less, "the posed, Elbridge Gerry of Massachu- importation of new slaves. As one business [of the Convention]was at New Yorker would complain during setts protested vigorously. Hear- an end." The three-fifths clause be- gued that "Slaves [ought] notto be the ratification struggle, the Consti- came the rule for representation tution's slave trade clausecon- put upon the Footing of freemen," with very little recorded opposition. and that the "Freemen of Massts. doned "drenching the bowies of On the last vote on the clauseevery Africa in gore, for the sake of [ought] not to be putupon a Foot- en- state but New Jersey supported the slaving its free-born inhabitants." A ing with the Slaves of other States." compromise. He sarcastically suggestedthat Virginia Anti-Federalist complained that the slave trade provisionwas "Hor:and Cattle ought to have The Slave Trade, the Fugitive the Right of Represent[ation]" if an "excellent clause.. . in an Algeri- Slave Clause, and the Second an constitution: but not so well slaves were also to be counted. "Great" Compromise Gerry's complaint was fundamen- calculated... for the latitude of America." tally political, but he impliedan In his last attempt to block the These sentiments expressed the ethical issue as wellthe immoral- three-fifths clause, Gouverneur ity of obscuring the distinction be- attitude of some delegates at the Morris tied it directly to the rightof Convention. John Dickinsoncon- tween free people and slaves. Ina the southern states to import slaves subsequent debate, New Jersey's sidered the African trade "inadmis- from Africa. He asserted thatcount- sible on every principle of honor William Paterson asked, withsome ing slaves for representation irony, if a Virginian would have "a and safety." George Mason de- when fairly explainedcomes to clarai that slavery would "bring the number of votes in proportionto this: that the inhabitant of Geor- the number of his slaves?" Again, judgment of heaven" and produce gia and S.C. who goesto the "national calamities." But Mason's the question of politicalpower was Coast of Africa, and in defiance part of the debate. But Paterson, attack on slavery did notmean he of the most sacred laws ofhu- wanted to end the institution. Asa like Gerry, also raiseda moral is- manity tears away his fellow sue, noting that counting slaves for slaveholding Virginian,that was creatures from their dearestcon- hardly his agenda. Mason merely representation encouraged the Afri- nections and damns them to the can slave trade. Pennsylvania's wanted to empower Congressto most cruel bondages, shall have prohibit the importation ofnew Gouverneur Morris declaredhe more votes in a Govt. instituted could "never agree to give such slaves. Virginia hadan oversupply an for the protection of the rights of of slaves and thus could not only encouragement to the slave trade mankind, than the Citizen of Pa. ... by allowing them a representa- afford to see an end to the African or N. Jersey who views with a trade, but Virginians might profit this Constitution ; 26j 27 LT the compromise over representation was the "Great Compromise," then it is fair to label this one the "Dirty Compromise" of the Federal Convention. New England supported the Deep South's demand for the slave trade not to mum acceptance of a new constitution but in return for southern support for northern shipping interests.

from it by being able to sell their these states were in effect willing to lina's Pierce Butler also supported excess slaves to South Carolina and call South Carolina's bluff. They a simple majority for commercial Georgia. knew that South Carolina was legislation. When the motion came The delegates from South Caroli- strongly in favor of a new govern- to a vote, South Carolina joined the na and Georgia, on the other hand, ment. They knew that Georgians North in supporting it. argued that the slave trade was were desperate for a strong nation- ImMediately after this vote, absolutely necessary for the eco- al government to protect their state Pierce Butler introduced the fugi- nomic development of their states. from the Spanish and from Native tive slave clause, which was accept- If the convention prohibited the Americans. But while the Middle ed without debate or formal vote. slavetrade, South Carolina's States and VirginiP all opposed the The "compromise" was now com- Charles Cotesworth Pinckney pre- slave trade, the Deep South, Mary- plete. The Deep South got ar exten- dicted that his state would not rati- land, and the three New England sion of the slave trade until at least fy the Constitution. He declared stat, 3 all voted for it. If the compro- 1808 and the fugitive slave clause. that "South Carolina and Georgia mise over representation was the The Northeast gained its cherished cannot do without slaves." A prohi- "Great Compromise," then it is fair goal giving Congress a simple ma- bition of the trade would be "an to label this one the "Dirty Compro- jority to pa s commercial legisla- exclusion of S. Carol[inja from the mise" of the Federal Convention. tion. Union." Here Pinckney equated a New England supported the Deep In one sense, this compromise continuation of the slave trade with South's demand for the slave trade was as critical as the "Great Com- a continuation of slaveryitself. not to ensure acceptance of a new promise" that gave equality to the Pinckney's sentiments were echoed constitution but in return for south- states in the Senate and representa- by the rest of the South Carolina ern support for northern shipping tion by population in the House. delegation, as well as delegates interests. The Philadelphia meetirr,* had from Georgia and North Carolina. On August 28, the "Dirty Compro- grown out of the Annapolis Con- During the debate over the slave mise.' was dra, 'n. The Convention vention, which had been called to trade the delegates from the Deep gave final approval to the con'ept mediate commercial conflicts be- South received curious support that all commercial regulations tween the states. The compromise from New England. Elbridge Gerry, could be adopted in Congress by a of August 28 allowed the new Con- who had opposed the three-fifths simple majority, rather than the gress to pass commercial regula- clause and other concessions to two-thirds majority :hat the South tions with ease. The cost of that slavery, offered conciliatory re- had been demanding. During the power was high. First, the Conven- marks. Roger Sherman of Connecti- debate, Charles Cotesworth Pinck- tion agreed to protect the slave cut dciared that "it was better to ney noted that he supported the trade for at least twenty years. In let the S. States import slaves than simple majority because of the "lib- 1787 no one could know that the to part with them if they made that eral conduct" of the New England trade would then be abolished. For a sine qua non." When the voting states "towards the view of South the delegates in Philadelphia, and came, this verbal support translated Carolina." In the margins of his the people in the states who would into political support. notes, Madison observed that elect ratification conventions, there On August 25, the Convention Pinckney was no guarantee that Congress debated a clause restraining Con- meant the permission to import would ever end the trade. For the gress from prohibiting the slave slaves. An understanding on the eighty thousand or more Africans trade until1800. Charles Cotes- two subjects of navigation and brought to America between 1788 worth Pinckney proposed the date slaveny, had taken place between and 1808, it was certainly of little be changed to 1808. Madison pro- those parts of the Union, which consequence that the trade would tested that "twenty years will pro- explains the vote on the Motion later come to an end. duce all the mischief that can be depending, as well as the lan- In addition to the continuation of apprehended from the liberty to guage of Genl. Pinkney and oth- the trade, the Compromise included import slaves." Three middle states, ers. the fugitive slave :Anse. The slave New Jersey, Pennsylvania, and Del- Thus, while he thought that the states demanded the clause late in aware, as well as Virginia, opposed interests of the South and the North th '-ivention, after the compro- preventing Congress from restrict- were "as different as Vie interests m L., over the slave trade and corn- ing the slave trade. Delegates from of Russia and Turkey," South Caro- merze had already been worked

this Constitution 28 262 CASH! -*El persons that have:SLAVESto of, will do well bt as I will give the ENT PRIC2 FOR

Men, Women, ropean trade, like New York and & Pennsylvania, would impose export taxes on southern tobacco and rice extuDituit leaving their ports and thus undermine the slave economy. The South Any person-that wishes ni sell, willeallat ta- also feared that a Congress domi- vern, or at Shinnol Hill for me, andany informs- nated by the North might pass nation'they want.Will be promptly attendedto. tional taxes on its exports. While the South resisted taxes ThaneGriggs. that might affect its products more Charleitown, May 7, 1835. than the products of the North, the momassesrazz mum Jrncie, South nevertheless expected more protection from the national gov- Broadside, 1835. Library of Congress. ernment than the North did. South- erners viewed the insurrection cause (Art. I, Sec. 8), and the do- out. The South made the demand increased the influence of the slave mestic violence clause (Art. IV, Sec. for this clause but offered nothing states in choosing a president. At 4) with great favor. Twice in the in return. While a few northerners the same time, these clauses limited antebellum periodduring the Nat protested, the majority of northern the amount of taxes slaveowners Turner Rebellion and the John delegates lacked the will or the would have to pay if a porulation- Brown raidVirginia would wel- energy to fight it. based tax, or capitation tax, were come federal troops for such sup- ever levied. In addition, these pression of a slave insurrection and Slavery and the Constitution clause., guaranteed the existence of an abolitionist "invasion." the African slave trade until at least When they needed the federal The word "slavery" appears in 1808, and they insured that masters government'said, slaveowners only one place in the Constitution: would have a legal right to capture could almost always expect a sym- in the Thirteenth Amendment, add- their runaway slaves. These clauses pathetic president. The structure ed in 1865, where the institution is protected the South's peculiar insti- for the Electoral College insured abolished. The presence of slavery, tution and, inthe three-fifths this. By incorporating the three- however, is felt everywhere in the clause, gave it the extra political fifths clause into the Electoral Co. original document. muscle with which to guarantee the lege the South gained a dispropor- Slavery was directly at issue in persistence of that protection. tionate say in who was elected five places in the Constitution: the Other parts of the Constitution president. It is perhaps not surpris- three-fifths clause (Art. I, Sec. 2); indirectly preserved slavery. The ing that betwet .11788 and 1860 the slave importation clause (krt. I, prohibition on export taxes (Art. I, nine out of fifteen presidents were Sec. 9, Par. 1); the capitation tax Secs. 9 and 10) meant that com- slaveowners. More impressive, per- clause (Art. I, Sec. 9, Par. 4); the merce in the staple products of haps, is the fact that all five of the fugitive slave clause (Art. IV, Sec. 2, slave laborsuch as tobacco, rice, two-term antebellum presidents Par. 3); and Article V, prohibiting and later cottoncould not be were slaveowners. Between 1789 an3 amendment of the slave trade taxed. The South would thus add and 1861, a slaveowner held the and capitation tax clauses before less to the national treasury than office of chief executive for all but 1808. the North, even though it might twenty-two years. These provisions increased the produce more wealth. These The Constitution was a conserva- representation in Congress for the clauses were particularly important tive locument, changing it required slave states by addirg three-fifths to slaveowners at the Convention three-quarters of thetates. By the of the number of slaves to the total because they believed that through time of the Civil War, slave states free population when determining export duties the national govern still made up almost hal; of the the size of each state's congression ment, or the free states, could indi Union and they could easily block delegation. Because the Electoral rectly tax slavery itself. Southern- an unwanted amendment to the College was based on representa- ers thought that without such a Constitution. tion in Congress, this clause also prohibition states involved with Eu Mc -ry northerners opposed rat& this Constitution (I 29 tili..3. 263 Holy Bade . i3oclaration of iadepaclosee. ada ht. ....r.140. Iflifolidaalbson eria/, ilia/ 14y arr nweiy ,hh dd/ aled/ Iven none,/ Effects of the Fugitive -Slave -law. iirater nAt wriev in Ad "1hr oda iewfaidAve at on. idiyab.arrriaZzi arr .ro piir.qii? t dunF 74...... 41/i Ihiefpr. kg 116..A.Fr. 1.,,PA* R.* 11411,

Drawing, 1850. Library of Congress. cation because of the slave trade alleled bloodshed could the Union clause. New Hampshire's Joshua be made "more perfect" by finally Suggested additional reading: Atherton complained that the Con- expunging slavery from the Consti- stitution would make people in his Richard Beeman, et al., eds., Beyond Confed- tution. eration: Origins of the Constitution and state "consenters to, and partakers For southerners, however, one of Amen can National Identity (1987). in the sin and guilt of this abomina- the great virtues of the document Lynd, Stoughton, Class Conflict, Slavery, ble traffic." In the nineteenth centu- produced in 1787 was the protec- and the United States Constitution ry, the fugitive slave clause would tion it gave to slavery under the (1967). Robison, Donald, Slavery in the Structure similarly demand that northerners new national government. Edmi. nc of American Politics, 1765-1820 (1971). partake in the sin of slaveholding as Randolph told the Virginia ratifying Wiecek, William M. The Sources of Antislav- slavecatchers. But eve during rati- convention that in Philadelphia ery Constitutionalism. zit A merzca, fication that concept was evident to "even South Carolina herself con- 1760-1848 (1977). perceptive observers. In 1788 three ceived this property IslaveryJ to be Massachusetts Anti-Federalists pre- secure." [Emphasis in the original.] Paul Finkelman is a member of the his- dicted that "this lust for slavery, General Charles Cotesworth Pinck- tory department at the State University [was] portentous of much evil in ney, one of the delegates from of New York at Binghamton. He is the America, for the cry of innocent South Carolina, would have agreed. author of An Imperfect Union: Slavery, blood... hath undoubtedly reached He boasted: "In short, considering Federalism, and Comity (Chapel Hill: Univ. of North Carolina Press, 1981) and to the Heavens, to which that cry is all circumstances, we have made the editor of Slavery, Race and the Amer- always directed, and will draw the best terms for theecurity of ican Legal System, 1700-1872 15 vols. down upon them vengeance ade- this species of property it was in (New York: Garland l'ress, 1987). He is quate to the enormity of the crime." our power to make. We would have currently writing a Fa. ory of the en- The events of 1861-65 would prove forcement of the fugitive slave laws and made better if we could; but on the A History of American Constitutional the three Massachusetts men cor- whole, I do not think them bad." Politics, sponsored by the Organization rect. Only after four years a unpar- of American Historians.

30 2 this Constitution Constitutional Equality by STANLEY N. KATZ

ost Americans remember Jef- teed, in the 1787 document. The equality among those productive ferson's dictum that "all men Declaration of Independence, from workers in the political community are created equal." Many of which Jefferson's statement comes, (a definition which by no means us believe that itis part of the differed from the 1787 constitution included a demographic majority). United States Constitution. The in two important ways: (1) the Dec- Most historians now argue that im- hard fact is, of course that the word laration was the product of a revo- portant elements of this republican "equality" appears only once in the lutionary tradition, promulgated at ideology persisted well into the 1787 document, and it does not the very peak of American ideologi- nineteenth century. apply to citizens. cal fervor, and (2) it was a political Not many lawyers, much less law manifesto, designed to rally domes- Liberalism students or concerned citizens, can tic and foreign support of the revo- find the single reference to "equali- lutionary cause rather than to serve But, as Joyce Appleby has re- ty" in the text of the original Consti- as a framework document for gov- minded us, liberal ideology began tut; m. Surprisingly, it is in Article ernmental organization. to play a role in American political V, the amendment article, which Progressive historians, follow- thought in the late eighteenth cen- defines the two unamendable ing Carl Becker and Merrill Jen- tury. Liberalism contended that so- clauses of the Constitution: the sen, have long argued that the polit- cial good was achieved through the slave trade clause and that govern- ical thrust of the revolutionary cumulation of the pursuit of indi- ing the representation of states in movement was democratic. The vidual self interest. Liberalism thus the Senate. Constitutional equality, Revolution was thus properly insti- implies a different sort of equality, as expressed literally in the text tutionalized in the Articles of Con- one measured at the "front end" as fashioned lsy the framers, was no federation format, which severely individual ob)o :tunity and per- more than equal representation for limited the power of the central ceived as a starting point rather all states in the upper house of the government and tended to favor the than a social goal. The tension be- nationallegislature:''[N]ostate, social distribution of political pow- tween republicanism and liberalism without its Consent, shall be de- er. From this perspective, the move- was apparent in 1787-1788, but the prived of its equal Suffrage in the ment for the Philadeiphia Constitu- fact is that neither ideolo re- Senate." tion was reactionary, since the quired a commitment to general Why is there no reference to more highly centralized 1787 gov- social equality or egalitarianism. equality for individuals in the body ernmental structure could be used Both, for different reasons, required of the Constitution? Perhaps the by a merchant minority for its own guarantees of participation for harder question is why the Bill of purposes, contrary to the will of the those entitled to membership in the Rights did not guarantee equality, majority. For theProgressives, political community. And both ac- since the first ten amendments then, the exclusion of equality as a commodated themselves to the re- specified other individual rights formal constitutional value in 1787 ality that not all Americans were which are at best only implied in seems historically predictable. But entitled to be political actors. the original Constitution. Yet nei- even those historians who do not Slavery, the "peculiar institu- ther the word nor the concept of consider the Constitution to be a tion,' was only the most obvious "equality" appears in the Bill of counterrevolutionary document reason why the framers could not Rights, unless by implication in the must acknowledge that the ideolog- (or would not) write equality into rights reserved "to the people" in ical thrust of 1787 was different the United States Constitution. the Ninth Amendment, or, for some from and certainly less egalitarian How could the Constitution advert people and under certain circum- than that of 1776. to equality as a general value \Oen stances, in the First Amendment or The spirit of '76 was republican. nearly one in every five "Ameri- in the Due Process Claus. of the It held up for emulation the Jeffer- cans" was enslaved? The subject of Fifth Amendment. sonian conception of a community slavery was so politically sensitive of independent, self-reliant, proper- that the framers omitted any overt The Spirit of '87 ty owning farmers tied together by reference to it. To state the obvious, their commitment to place the good if some people were to count as The fact of the matter is that it of the community before their indi- three-fifths of a person for the pur- would be very surprising if equality vidual self interest. Republicanism pose of calculating representation were mentioned, much less guaran thus implied the ultimate goal or in the lower house, how could this Constitution 31 265 which they had no concern, agency or interest. In Virginia, as in the United States generally, few people thought that revolutionary prescription of equality had general constitutional implications. Locke had spoken of life, liberty, and property (which Jefferson translated as "life, liberty and the pursuit of happiness"), and property, rather than equality, was explicitly protected in the Constitution of 1787-91 through, for example, the clauses prohibiting states from issuing paper money or impairing the obligation of contracts. The protec-

Justice St. George Tucker of Virginia. Library of Congress. tion of private property was essential to nationalists interested in economic development through private equality be a constitutional norm? cellor George Wythe had freed a enterprise. But the notion that But the case against equality young woman claiming to be an some measure of equality of eco- does not need to rest on the tragedy Indian from the ownership of a nomic opportunity was necessary of slavery. Americans in 1787 never slawholder who alleged that she to civil liberty did not imply, for proclaimed themselves in favor of was black. The law of Virginia then most Americans, that equality was the sweeping egalitarianism an- presumed Indians to be free unless similarly requisite to political liber- nounced six years later in France. proven otherwise, and blacks to be ty. Voting qualifications set by the Our society was based upon sys- slaves unless proven free. Wythe states for the first federal election tematic inequality, about which went further, however, and an- in 1788 testified to the prevailing there was not much dissent. Wom- nounced that Virginia's 1776 Decla- view that only men of property had en did not hold a legal or political ration of Rights, which declared all he kind of stake in government status equal to that of men, no did men to be free and equal, was in that entitled them to participate in Indians or free blacks claim equali- itself a constitutional guarantee of it. ty with whites. The society (differ- the presumption of freedom and The federal constitutional solu- entiated from state to state and equality. When the case was ap- tion at the founding held sway for region to region), was based on the pealled to Virginia's Supreml nearly three quarters of a century, recognition of a hierarchy of sta- Court, however, Justice St. George although some states moved in a tuses rather than a conception of Tucker scathingly rejected Wythe's more egalitarian constitutional di- universality of rights, the Declara- argument for egalitarianism. Virgin- rection. Meanwhile, the nation grew tion of Independence notwithstand- ia Declaration, said Tucker, was in dramatic and unexpected ways, ing. Some Americans aspired to notoriously framed with a cau- and both its growth and practices, more in 1776, but the Federalist tious eye to this subject [slavery], such as the creation of political triumph in 1787-88 c.:tituted a and was meant to embrace the parties and the emergence of judi- victory for social real sm and the case of free citizens, or aliens cial review, altered the constitu- acceptance of federal constitutional only, and not by a side wind to tional sys _m significantly. A num- inequality, or at best equality My ov e burn the rights of property, ber of systemic failures also began for that minority of Americans de- and give freedom to those very to emerge, but none so terrifying fined as being within the political people whom we have been cc.n- and nearly mortal as the inability to community. pelled from imperious circum- cope with the intertwined problems An 1806 law suit in Virginia, Hud- stances to retain, generally, in the of slavery and regionalism. gins v. Wrights, will perhaps m: :2 same state of bond?ge that they The solution to these problems the point. A few years earlier, Chan- were in at the revolution, in was forged in the cataclysm of the

32 2 G G this Constitution Harper's Weekly, 1875. Smithsonian Institution, Washington, D.C.

Civil War and Reconstruction. We of the Fourteenth Amendment in abolitionists imagined full social in- must nevertheless ackne wledge the July 1868 that egalitarian values ex- tegration as a plausible political failure of constitutional change as a plicitly entered the Constitution. goal. Lincoln himself opposed both response to the antebellum crisis. Section 1 of the amendment, in its black suffrage, and "everything Constitutionalism could dolittle finalclause, forbade the several looking to placing negroes upon a better than Chief Justice Roger Ta- states to "deny to any person within footing of political and social equal- ney's dictum in the Dred Scott case [their] jurisdiction the equal protec- ity with whites" although he de- (1857) that "the negro has no rights tion of the lay Notice two things fended for them "a perfect equality which a white man is bound to in the language: (1) "equal protec- of civil and personal rights under respect." The point is not so much tion of the laws" rather than "equal- the Constitution." The road from that the Supreme Court could not ity" is guaranteed by the clause, and constitutional "equal protection' to manage a statesmanlike response (2) this protection is afforded only full individual equality has not yet to the conflict (although that is against nonegalitarian activities of been completed, though there is no true) as that the entire constitution- the states. To this day there is no doubt that the first stones were put al system could net produce a polit- explicit L anstitutional guarantee in place from 1866 to 1868. ically acceptable consensus upon against comparable incursions of While Congress attempted to pro- which a democratic solution could the federal government, although in vide a somewhat broader concep- be based. Bolling v. Sharpe (1954), the deci- tion of civil rights (and therefore, to Ironically, this devastating con- sion that desegregated the District some extent, of equality) in the stitutional failure came at precisely of Columbia public schools, the Su- 1875 Civil Rights Act, for nearly a the moment that political equality preme Court found that the due century the historyof constitu- for white men had succeeded as the process clause of the Fifth Amend- tional equality was written by the decisive political value. The fray. ment included a requirement of Supreme Court. The story is a chise had been expanded, legal pro- equal protection. mean-spirited one, for the court tections were extended to some Perhaps more important, most Jf contracted the scope of the equal new groups, and general Ir .;islation the framers (and ratifiers) of the protection clause in several ways. began to replace special interest Fourteenth Amendment pretty First, it developed a constitutional statutes. The Jacksonian attack on clearly intended the Equal Protec- doctrine of "state action" that re- monopoly also moved governments tion clause to cover what they quired a showing of overt and offi- in a more egalitarian direction. called "civil" (rather than political cial activity oz. the part of public Some of this movement occurred in or social) rights. These were the officials as a trigger mechanism for national politics, but it would be rather narrow legal rights specified equal protection complaints. The left to the new Republican party, by tile 1866 Civil Rights Act: the amendment had, to be sure, forbid- with its program of "free soil, free right to own property, the right of den any "State" to "deny to any labor and free men," to workut a contract, the right to testifyin person within its jurisdiction the liberal (though certainly not ridub- court, and the like. Civil rights were equal protection of the laws," but lican) federal constitutional regime specifically designed to confer its sparse language did not specify for the postbellum United States. upon the freed slaves the capacity that the denial hi.d to be overt to participate in the liberal society rather than passive, direct rather T:Fourteenth Amendment into which they had so suddenly than indirect. Second, the Court de- been thrust. Neither Abraham Lin- termined that the protection of It was only with the ratification coln nor any but the most radical "persons" in the clause comprised

this Constitution C.; .> 267 33 It was only with the ratification of the Fourteenth Amendment in July 1868 that egalitarian values explicitly entered the Constitu- tion.

all conceivable legal persons, in- ments" (Buck v. Bell, 1927). The low Race was of course the major cluding those fictive legal persons point of equal protection came, in substantive component in the War- known as business corporations. fact, when the Supreme Court, de- ren Court's reinterpretation of con- The cumulative result of this juris- ferring to an alleged national secu- stitutional equality. The Court de- prudence was a narrowing of the rity claim, refused constitutional clared that race was meaningfully a scope of protection for human be- protection to the Japanese Ameri- "suspect" legislative category (fol- ings and an expansion of scope for can citizens internea in 1942. lowing up the abortive hint in Kore- the protection of business activity. From 1868 until 1954, constitu- matsu), subject to judicial "strict The enunciation of these doctrines tional equality meant at most nomi- scrutiny." What this meant in prac- in the Slaughterhouse Cases (1873) nally fair legislative classification tice was that state schemes em- and the Civil Rights Cases (1883) and statutory application. Statutes ploying race or other suspect classi- dramatically limited the potential necessarily sort individualsinto fications would not enjoy the pre- constitutional equality for individ- groups; the equal protection doc- sumption of constitutionality tradi- uals, even the freedmen who were trine served at least to limit the tionally accorded state actions. the intended beneficiaries of the potential arbitrariness of such state Rath -r, such schemes would have Fourteenth Amendment. classifications. But the force of the to be justified by showing that they principle was weakened by judicial were necessary to achieve funda- Plessy & Brown deference to state justification of mental state purposes, that they did apparentlyinequitableclassifica- not violate "fundamental rights and This counter-egalitarian judicial tions, and, in matters of race, by the interests," and that they could be trend reached its fulfillment with Supreme Court's reluctance to re- accomplished in no less onerous a the Court's 1896 decision in Plessy examine the Plessy doctrine (that manner. The tables were thus v. Ferguson, holding that Louisi- is, its substitution of equivalence turned, for previously state pro- ana's legislative policy of racial seg- forequality).Individual equality grams were given the benefit of the regationin public transportation was at best a weak constitutional constitutional doubt and were up- did not violate the equal protection value in postbellum America. held unless blatantly unrelated to clause. Here was art instance of Substantive equality (the notion legitimate public ends. self-evident "state" action appear- that everyone is entitled to equal This infusion of political and so- ing to deny equality of treatment to treatment in all aspects of life) be- cial substance into constitutioual blacks, which le Court justified by gan to enter the Constitution in equality was probably the most im- accepting the argument that com- 1954. The lecision of the Court in portant aspect of the "revolution" parable accommodations, however Brown v. Board of Education of in constitutional lau begun by the separate, were constitutionally Topeka, procla!ming that state-de- Warren Court. The process contin- "equal." For the Supreme Court at creed racial segregation of public ued, for the most part, under the the century's end, "equal" had be- schools violated the Fourteenth Burger Court, with the result that come synonymo 's with "equiva- Amendment principle of equal pro- for almost thirty years after the lent." The Plessy reasoning was tection of the laws, began a consti- Brown decision new categories of subsequently invoked to constitu- tutional as well as a social revolu- equality gained constitutional pro- tionalize racial segregation (Asian tion. Brown carefully avoided tection, in whole or in part. Alien- as well as black) in public educa- reversing Plessy by confining the age, ethnic origin, and illegitimacy tion, politics, and practically every- reasonirg only to public education. perhaps gained the most, but pro- where else in southern public life But it is obvious that the Warren gress was also made against gender (Gong Lum v. Rice, 1927). Court must have found a stronger and wealth discrimination. Equality Although some cases hinted at reading of equality in the Four- emerged as a normative standard in the potential egalitarian scope of teenth Amendment than had the the constitutional evaluation of po- the equal protection clause, consti- Brewer Court in 1896. "Separate" litical representation ("one person, tutional guarantees of equality re- can only be "equal" if the concept one vote"), the rights of defendants mained limited throughout the first of equality is narrow. After 1954, in in criminal proceedings, and the four decades of the twentieth cen- cases dealing with many activities right of interstate travel. This trend tury. Equal protection, scoffed Oli- other than education, the Supreme was given enormous velocity by ver Wendell Holmes, was the "usual Court began to define the content Cong.ess, with the passage of the last resort of constitutional argu- of the new equality. Civil Rights Acts of 1957, 1960, 34 26s this Constitution Confrontation between Nicholas Katzenbach of the UnitedStates Department of Justice and Governor George 11, 1963. Library of Congress. Wallace over integrating the University of Alabama, September

1964, 1965, and 1968. Civil rights from this step in Frontiero now took on a richer range of v. Rich- tional notion of equality isas we ardson (1973). Therewere some approach the twenty-first century. meaning, extending to employment, early indications that wealth dis- public accommodation, education, At the moment, equalityseems crimination might also enter the most likely to remerge as the frame- and many other significant realms charmed circle, but that toowas of public activity. Age, gender and work for political conflict in the not to be. Welfare benefits, exclu- United States. As Rousseauouce other previously discriminated sionary zoning, municipal services, against categories of the American noted: "This equality, theysay, is a and school finani,. failed to receive chimerical speculation whichcan- popu:ution were specifically "in- even file "heightened scrutiny" ap- cluded in" by the new legislation. not exist in practice. But... (it] is plied to gender discrimination precisely because the force of For Americans coming ofage since which would have made them sub- the Warren Revolution, equality had things always tends to destroy ject to more stringent tests of equal- equality that the force of legislation become an operative, meaningful ity. public value. must tend to maintain it." We will Archibald Cox has remarked that see how important quality is to "Once loosed, the idea of Equality Containment Americans in the next century. is not easily cabined." That conclu- They cannot assume that it has sion seemed persuasive during the By the time of Warren Burger's been guaranteed them by theircon- years of the Warren Court, but it stitutional heritage. retirement from the chief justice- now appears that federal constitu- ship in 1986, the Supreme Court tional equality has been contained, had gone far toward the fulfillment if not diminished. Once the Court of the promise of constitutional moved beyond the fulfillment of the Stanley N. Katz is the president ofthe equality, but the Court had also promise of racial equality, it had American Council of Learned Societies no and a senior fellow of the Woodrow stopped short in a number of im- clear sense of where and how farto 1Vil- portant areas. Above all, the son School at Princeton University. He num- take the concept. The belief that is the author of "The American Constitu- ber of "suspect" categories didnot further development ought to rest tion: A Revolutionary Interpretation," expand. Many had hoped (or with the legislature is doubtless in Richard Beeman, Stephen Boteinand feared) that gender would be in- prudent, but it also shows how in- Edward C. Cater, Ii, Beyond Confedera- cluded, but the Court drew back tion:Origins of the Constitution and complete the American constitu- American Nationrl Identity(1987). this Constitution 35

AM! 4,14*: 4%.

DOCUMENTS The Bill of Rights: TheRoger Sherman Draft by JAMES H. HUTSON

Roger Sherman, a In the summer of 1987, arch.vists at the Library ofCongress verified a draft of the Bill of Rights written by known to most twentieth-century Americans as the authorof the Con- delegate to the First Congress from Connecticut. Better Representatives on July 21, necticut Compromise at the ConstitutionalConvention, Sherman was appointed by the House of 1789 to the select committee "to take the subject of amendmentsto the Constitution of the United States generallyinto [its] con- of the Consti- sideration." The amendments referred to were thoserecommended by the states during the contest for ratification tution. created Sherman's proposal contradicts the received wisdom thathe was an inveterate foe of any bill of rights, an impression incompetent, often by the Annals of Congress, an 1834 reprinting of theunreliable sho hand reports of one Thomas Lloyd, the inebriated stenographer who was supposed to have been recom.'.gthe discussions in the House of Representatives. WhatSher- body of the Constitution rather than man actually opposed, however, wasMadison's efforts to incorporate amendments into the "We ought not to interweave our propositions into thework itself " he in- append them as a group at the end of the document. to have been an ef- formed the House on August 13, "because it will bedestructive of the whole fabric." Sherman's draft appears fort to demonstrate how a bill of rights could be written as acoherent entity for addition to the Constitution. Far from opposing Madison on the substance of a bill ofrights, Sherman included in his draft many of theprovisions con- borrowed Madison's tained in Madison's speech of June 8, introducing toCongress the subject of a bill of rights; in places, he exact language. Although Sherman added some ideasof his own, his draft was, in fact, an effort to condenseand refine Madi- son's proposals of June 8; he was acting more as a collaboratorthan as an adversary. Nevertheless, on July 28 the committee adopted Madison's version. intention of the Although it was not the committee's choice, Sherman's draftof the Bill of Rights does still shed light on "the framers." Article 2 and particularly Article 8 of Sherman's copy s IpportLeonard Levy's thesis that the framers of the Constitu- of the Second Amend- tion held that "freedom of the press" meant onlyfreedom from prior restraint. Those seeking the meaning nothing about a right to bear arms. Most articles ofSherman's draft will, in fact, ment will note that in Article 5 Sherman says Library of Congress. speak to such questions. The document, printed below, isin the custody of the manuscript division of the

[This committee] Report as their op:.tion, that the following shall be had. articles be proposed by Congress to the legislatures of the sev- 4. After a census shall be taken, each state shall beallowed Inhabilants eral states to be adopted by them, as amendmentsof the Con- one representative for every thirty thousand stitution of the United States and when ratified by the legis- of the description in the second section of the first Article latures of three fourths (at least) of the said states in the of the Constitution, until the whole number of represen- union, to become a part of the Constitution of the United totwes shall a?ncait to but never exceed 5. The militia shall be under the government of thelaws of States pursuant to the fifth Article of the said Constitution. service of the 1. The powers of government beiig derived from the people, the respective states, when not in the actual ought to be exercised for their benefit, and they have an United States but such rules as may be prescribed by inherent and ?Inalienable right to change or amend their Congress for their uniform organization and discipline political constitution wht er they judge such change shall be observed in officering and training them; but will advance their interest ,,ul happiness. military service shall not be required of persons religiously scrupulous of bearing arms. 2. The people have certain natural rights which are rein tained by them when they enter into society, such as the 6. No soldier shall be quartered in any private house time of Peace, nor at any time, but by authority of rights of cow- fence in matters of religion; of acquiring fines property, and of pursuing happiness and safety of 7. Excessive bail shall not be required, nor amssive speaking, writing and publishing their sentiments with imposed, nor cruel and unusual punishments inflicted decency and freedom; of peaceably assembling to consult in any case. their common good, and of applying to government by 8. Congress shall not have power to grant anymonopoly or petition. br remonstrance for redress of grievances.Of exclusive advantages of commerce to any person or com- these rights therefore they shall not be deprived by the pany; nor to restrain the liberty of the Press. 9. In suits at common law in courts acting underthe au- government of the United States. tried 3. No person shall be tried for any crime whereby he may thority of the United States, issues of fact shall be by a Jury if either party request it. incur loss of life or any infamous punishment, without compensation for Indictment by a grand Jury, nor be convicted but by the 10. No law that shall be passed for fixing a the member of Congress except the first shall takecflivt unanimous verdict of a Petit Jury of good and lawful posterior ?nen freeholders of the vicinage or district wherethe trial until after the nevi election of representatives

this Constitution 36 270 Roger Sherman, painting by Thomas Hicks alter Ralph Earl. Independence National lit:.orical Park, Philadelphia, PA.

to the passing suck law. And the powers not delegated to the gotern //tent of the 11The legislative, executive and judiciary powers vested by United States by the Constitution, nor p,vittibited by it to the Constitution in the respective branches of the Gov- the partiodar States are retained by the states respec- ernment of t,te United States shall be exercised according tively, nor shall any the exercise qf power by the govern- to the distribution therein 2: that neither of said ment or' the United States particular instances herein branches shall assume or excirest any of the powers pe- enumerated by way of caution be construed to imply the culiar to either of the ether branches. contrary (ski.

4 t this Constitution 27 DOCUMENTS John Marshall and the Contract Clause by CHARLES F. HOBSON

Among those who belonged to the founding generation, no one did more to shape the constitutional development of the United States during its forma- Six Notable Opinions of John Marshall tive period than John Marshall. As fourth chief justice of Marbury v. Madison (1803): The first occasion in the United States from 1801 to 1835, he delivered a se- wnich the Supreme Court declared an act of ries of notable opinions, beginning with Marbury v. Congress to be unconstitutional. (The law in Madison (1803) and including Fletcher v. Peck (1810), question gave the Supreme Court original juris- Dartmouth College v. Woodward (1819), McCulloch v. diction where the Constitution said it should Maryland (1819), Cohens v. Virginia (1821), and Gib- have appellate jurisdiction.) bons v. Ogden (1824). Together his constitutional pro- Fletcher v. Peck (1810): The Court for the first nouncements strove to give full effect to the federal time invalidated a state law as contrary to the powers granted by the Constitution and to the restraints Constitution. (The ruling defined a land grant by and prohibitions imposed on the state governments. Un- a state legislature as a "contract" protected by der his leadership, the judiciary, which might well have the Constitution.) remained a subordinate institution, began to acquire the Dartmouth College v. Woodward (1819). The power and status it enjoys today of a fully coordinate Court further extended the meaning of "con- branch of government. tract" to embrace corporate charters, according Probably the most widely known of Marshall's deci- them constitutional protection against legislative sions is Marbury v. Madison, in which the Supreme infringement. Court first asserted its power to declare unconstitution- McCulloch v. Maryland (1819): Upholding the al an act of Congress. For all the attention it has re- power of Congress to charter a national bank, ceived as a precedent for the court's power of judicial Marshall on behalf of the Court made an elo- review, this case nevertheless stands apart from the quent statement of the theory of national su- dominant theme of Marshall's constitutional jurispru- premacy while expounding the doctrine of brad dence. Not until 1857 (in Dred Scott v. Sanc(ford) would construction and implied powers. the Court again strike down a law of Congress. Before Cohens v. Virginia (1821): Marshall forcefully re- the Civil War, judicial review was exercised almost ex- stated the theory of national supremacy while clusively against state laws, a power resting on reason- asserting a broad view of the jurisdiction of the ably solid textual ground the prohibitions on the federal courts, which included appellate jurisdic- states recited in Article I, section 10, together with the tion over the state courts when federal questions clause of Article 6 declaring "the Constitution, laws, and were involved. treaties of the United States to be the Supreme Law of Gibbons v. Ogden (1824): The Court first expound- the Land." ed Congress' power to regulate interstate commerce under the "commerce clause." Marshall The Text of the Constitution again asserted a broad view of congressional power, emphatically rejecting the doctrine of The first paragraph of Article I, section 10, among oth- strict construction. er things, declares that no state shall "emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any ... ex post facto Law, or Law impairing the Obligation of Contracts." contracts supplied the Marshall Court with its principal These clauses of the Constitution spoke directly to the weapon for invalidating state laws. To Marshall the con- framers' overriding concern to protect private rights tract clause epitomized the tenor and spirit of the Con- most importantly, the rights of property from institution. In his mind, the true character of the funda- fringement by the states. Advocates of constitutional re- mental charter lay less in its grant of powers to the form had loudly complained of obnoxious and danger federal government than in its abridgment of the powers ous laws that rendered propert., insecure and of the state governments. The federal government, pos- undermined commercial stability. Such laws, they came sessing enumerated powers only, was by definition lim to realize, were the bitter fruits of unchecked majority ited. Before the adoption of the Constitution, the state rule in the state legislatures. governments, conversely, possessed plenary powers ex- Of the prohibitions against the states mentioned in cept as restricted by their constitutions (which in prac- the Constitution, that against impairing the obligation oftice had proved to be ineffective restraints). The Consti

38 272 this Constitution tutiun, as Marshall read it, transformed the states into limited governments as well limited both in relation to the federal government and, more importantly, inre- lation to their individual citizens. During the Marshall era, the contract clause became for all practical purposes a general restraint against state interference with property rights. Although security for these rights was obviously a primz.ry objective of the framers, few in 1787 could have predictedso large a role for the contract clause in the constitutional law of the new nation. The immediate forerunner of the clause was the second article of the Northwest Ordinar ce, also adopted in the summer of 1787, which read in part: "And, in the just preservation of rights andproperty, it is understood and declared, thatno law ought ever to be made, or have force in the said territory, that shall,in any manner whatever, 'nterfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed." On August 28, Rufus King movedto add these words of the ordinance to the proposed Con- stitution, but after a brief discussion a substitute motion prohibiting the states to pass ex post facto lawswas approved. When the Committee of Style reportedon Sep- t _mber 12, however, "laws altering or impairing the obligation of contracts" had been added to the prohibitions, probably in response to John Dickinson's observation (taken from Blackstone) that "ex post facto" referred only to crimirll cases. After striking out "altering,"the Convention aaopted the contract clause on September 14, 1787. Neither the Convention debates nor the debates of the state ratifying conventions shed much lighton the intention behind the contract clause. Was it to apply onlyto private contracts between individuals, "bona fide, and without fraud, previously formed," in the languageof the Northwest Ordinance? If that wording had been adopted, it is difficult to conceive how Marshall could have used the clause as the basis for the decisions in John Marshall, pointing by John B. Martin. Architect of the Coital collection. Fletcher v. Peck or Dartmouth College v. Woodward. As Library of Congress. finally approved, the prohibition is expressed in general terms. Did the omission of the more detailed wording ofurn and usually a legal tender in payment of debts; the Northwest Ordinance signify an intent to broaden "tender" laws, which enabled debtors to satisfyexecu- the scope of the contract clause? The record is too tions for debt by tendering specific property ata valua- scanty and inconclusive. Among the handful who ut- tion higher than its market value; and "stay" and "in- tered any thoughts on this point, the prevailingassump-stallment" laws, by which executions for debtwere tion appears to have been that the clause wouldem- either postponed or were levied in installments. Itwas brace private contracts. these laws the framers had in mind when theycon- The text of the Constitution makes clear the intentiondemned violations of the obligation of contracts. Since to forbid the states from enacting three types of laws other clauses of Article I, section 10, prohibitedpaper- they had beln in the habit of passing in the 1780s:pa- money and tender laws, was the contract clause to be per-money laws, which made paper bills issued on the understood to prohibit stay and installment laws butno credit of tne state ("bills of credit") a circulating medi- others?

Mit Constitution 39 273 Judicial Review John Marshall's great achievement was to reconcile these opposing views, to base judicial review squarely The potential of the contract clause as an instilment on the text of the Constitution while finding in that text of judicial review was not immediately recognized by ample protection for vested rights. To accomplish this judges. Indeed, during the first generation of the Con5ti- purpose, Marshall applied an expansive interpretation to tution, it was by no means settled that judicial review the contract clause, fully exploiting its general language. would be restricted to pronouncing laws "unconstitu- Commentators may disagree on the soundness of his tional," that is, contrary to a specific provision of a writ- construction in particular cases, but there is no doubt ten constitution. Particularly in the state courts, judges that by anchoring vested rights to the Constitution Mar- frequently declared laws invalid on the less concrete shall made judicial review a more palatable device in a ground that they violated fundamental rights (not al- republic for reconciling the will of the majority with the ways explicitly spelled out in the state constitution) thatends of justi^e. In the dnited States the Constitution were beyond the reach of legislative power. This was was law, and if in the regular course of abudication a the doctrine of "vested rights,' which enjoyed wide- conflict appeared between that law and a legislative act, spread acceptance among jurists of the time and he- then (said the chief justice in Marbury) it was "emphati- came, in the :cords of an eminent scholar, "the basic cally the province and duty of the judicial department to doctrine of constitutional law." say what the law is." One of the most forthright articulations of this doc- By virtue ofjut;:cial review, American judges were en- Anne was set forth by Justice Samuel Chase in the case trusted with the power to interpret and to apply the of Calder v. Bull (1798). "There are acts whicil the fed- Constitution in the same way they had traditionally con- eral or state legislature cannot do," wrote Chase, "with- strued ordinary statutes. In construing statutes, they out exceeding their authority. There are certain princi- necessarily had to give due attention to the legislature's ples in our free republican governments which will intent. Interpreting the Constitution imposed the sarne determine and overrule an apparent and flagrant abuse obligation. Throughout all his great constitutional ca' °s, of legislative power; as to authorize manifest injustice especially those arising uncle' the contract clause, Mar- by positive law; or to take away that security for per- shall faced the problem of reconciling his read ig of the sonal liberty, or private property, for the protection Constitution with the "original intention" of its authors. whereof the government was established. An act of the He characteristically solved this problem in a way that legislature (for I cannot call it a law) contrary to the left much to his judicial discretion. In his hands, the great first principles of the social compact cannot be Constitution "intended to endure for ages to come, considered a rightful exercise of legislative authority." and, consequently, to be adapted to the various crises of Declaring a legislative act to be "contrary to the greathuman affairs" (McCulloch v. Maryland, 1819) be- first principles of the social compact" was not an alto- came a flexible instrument, capable of accommodating gether satisfactory justification for judges to annul it. itself to changing circumstances and conditions. Were judges uniquely qualified to pronounce a law void as violating "natural justice"? After ail, republican legis- Fletcher v. Peck lators must be presumed to have an understanding of the "vital principles" of republican government. A law The first occasion. Jn I /Well Chief Justice Marshall enacted after solemn deliberation and not contravening construed the contract clause also marked the first time any specific provision of the Constitution should be suf- the Supreme Court held a state law to be unconstitu- ficient reason for judges to accept its validity not- tional. This was the case of Fletcher v. Peck, decided in withstanding they may have a diffes ent opinion as to its 1810, which grew out of the Yazoo land sales by the justice or policy. Calder v. Bull was also the occasion ofstate of Georgia. In 1795 the Georgia legislature passed an able statement of this view by Justice James Iredell. an act granting millions of acres of Yazoo lands (most "If...the legislature of the Union, or the legislature of of present-day Alabama and Mississippi) tc several land any member of the Union, shall pass a law, within the companies. The sale was accompanied by obvious brib- general scope of their constitutional power, the court ery, the legislators exchanging their votes for shares of cannot pronounce it to be void, merely because it is, in stock in the companies. In response to widespread pop- their judgment, contrary to the principles of natural jus ular denunciation of the Yazoo fraud, a newly elected tice. The ideas of natural justice are regulated by no legislature revoked the grant the followingear. fixed standard, the ablest and the purest of men have Land claims in this vast region remained embroiled differed upon the subject." politics during the next decade. After 1797, when Geor-

40 2f.. this Constitution gia ceded its western lands to the United States, Yazoo definition of a contract as set forth by Blackstone. He became a hotly debated issue in the halls of Congress. next considered whether the Constitution distinguished Claimants to Yazoo lands, many of whom were third between public and private contracts. parties who had purchased in good faith, repeatedly but unsuccessfully petitioned Congress to appropriate part If under a fair construction of the constitu- of the territory to satisfy their claims. Unable to obtain tion, grants are comprehended under the term legislative relief, they turned to the courts for redress contracts, is a grant from the state excluded a tactic that aggrieved groups have frequently adopted from the operation of the provision? Is the throughout our history. Fletcher v. Peck illustrate:: the clause to be considered as inhibiting the state peculiarly Ameri m penchant (noted by Tocqueville) of fronnpairing the obligation of contracts be- resolving political questions into judicial questions ttve two individuals, but as excluding from John Peck had purchased Yazoo lands from one of that inhibition contracts made with itself? the land companies and in turn sold a tract to Robert The words themselves contain no such dis- Fletcher in 1803. Fletcher then sued Peck in the federal tinction. They are general, and are applicable circuit court for recovery of the purchase price, alleging to contracts of every description. If contracts that Peck's title was unsound. After losing on circuit, made with the state are to be exempted from Fletcher took his case to the Supreme Court, where it their operation, the exception must arise from was argued in 1809 and again in 1810. The most impo:- the character of the contracting party, not from tant issue presented by the pleadings concerned the va- the words which are employed. lidity of Georgia's act rescinding the 1795 grant also Whatever respect might have been felt for the the central question in the earlier debate in 2ongress. In state sovereignties, it is not to be disguised deciding this point, Marshall declined to inquire into the that the framers of the constitution viewed, corrupt motives of the legislators on the ground that with some apprehension, the violent acts which this matter was beyond judicial competence. He then might grow out of the feelings of the moment; examined the rescinding law in light of certain inherent and that the people of the United States, in limitations upon legislative power. adopting that instrument, nave manifested a determination to shield themselves and their When, then, a law is in its nature a contract, property from the effects of those sudden and when absolute rights have vested under that strong passions to which men are exposed. The contract, a repeal t,f the law cannot divest those restrictions on the legislative power of the rights; and the act of annulling them, if legiti- states are obviously founded in this sentiment; mate, is rendered so by a power applicable to and the constitution of the United States con- the case of every individual in the community. tains what may be deemed a bill of rights for It may well be doubted whether the nature of the people of each state. societg and of government does not prescribe some limits to the legislative power; and, if Tilt Georgia law revoking the Yazoo grant was accord- ryty be prescribed, where are they to be found, ingly ruled unconstitutional. In holding thatlegislative if the property of an individual, fairly and act granting land was in its nature a binding contract honestly acquired, may be seized without com- protected by the Constitution, the Marshall Court signifi- pensation? cantly enlarged the meaning of the term "contract." Thus far Marshall seemed inclined to nullify the re- Dartmouth College v. Woodward scinding law on general grounds as an unwarranted legislative infringement of vested rights. Its validity, he ob- The next important extension of the contract clause served, "might well be doubted, were Georgia a single came in 1819, when the Court in Dartmouth College v. sovereign power." The Court was not)mpelled to an- Woodward held that the Constitution protected corpo- swer this questior however, for Georgia was part of a rate charter:, from legislative interference. Like Fletcher, union of states bound by a Constitution imposing limitsthis case began as a local political struggle before be- upon their legislatures. It remained only to inquire if thiscoming a judicial question of national significance. The case came within the prohibition against impairing the specific issue before the Court was the constitutionality obligation of contracts. Marshall proceeded to show thatof acts passed by the New Hampshire legislature in 1816 the grant of land by Georgia to the companies met the by which Dartmouth C )liege (now to be called Dart- this Constitution 2(5 41 - .---.--. L-_--=.- -- -- .'..-' .,., .="'".--..-_, -.. ,.. ^,... . _. ----- , .--s-- -.. .^',- - -A------

. . r ; '------4-1 -. -----' "--- -.. -- 7_ -- , : - ..- ,..----7.------. ,,--...... ,------''------.- -. --- 7:: -.---'-7- ''..7---''-----_-- `------A': L , k . -1---- -,-- -,--_-_-_---,-- ,..,----.....:__, _ -, ..,.,_-.------4,------.-,,,-"---'---..------=_-_,.------'------r------' --- --'------

Dartmouth College, 1793. Library of Congress. mouth University) was brought under the direct control As an example of state legislation outside the reach of of the state. The New Hampshirr, Superior Court in 1817 the contract clause, Marshall mentioned divorce laws, upheld the state laws, maintaining that Dartmouth Col- which necessarily affected marriage csntracts. The real lege was a public corporation established for public pur- point at issue, he insisted, was the "true construction" poses and that the contract clause could not limit the of the 1769 charter. If that charter had i.act created a state's power to regulate and modify its own civil insti- public ,nstitution for public purposes, then the New tutions. The former trustees, who had beappointed Hampshire legislature could do as it pleased, "unre- under the royal charter of 1769 establisl.:ng the college, strained by any limitation of its power imposed by the sought relief in the federal Supreme Court. constitution of the United States." Speaking for the Supreme Court, Marshall had no difficulty in finding in the original charter incorporating But if this be a private eleemosyna,y institu- Dartmouth College "every ingredient of a complete and tion, endowed with a capacity to take property legitimate contract." At the same time, he rejected a for objects unconnected with government, reading of the contract clause "in its broad unlimited whose funds are bestowed by individuals on sense." the faith of the chaeter; if the donors have stipulated for the future disposition and manage- That the framers of the constitution did not ment of those funds in the manner prescribed intend to restrain the states in the regulation by themselves, there may be more difficulty in of their civil institutisms, adopted for internal the case, cut .odgit neither the persons who have government, and that the instrument they have made these stipulations nor those fur u ..ose given us is not to be so construed, may be ad- benefit they were male, should be parties to the mitted. The provision of the constitution never cause. Those who are no longer interested in has been understood to embrace other contracts the property, may yet retain such an interest than those which respect property, or some ob- in the preservation of their own arrangements ject of value, and confer rights which may be as to have a right to insist that those arrange- asserted in a court of justice. ments shall be held sacred.

42 this ConatutIon The chief justice then launched an elaborate argu- ern' constitutional prohibitionsagainst the states must ment in support of the propositionthat Dartmouth Col- be i. m;-y stated in the instramentitself obvior sly lege was a "private eleemosynaryit stitution." Having already found the College charter permitted him great latitude in expoundingthe Constitu- to be a contract, he tion. It would serve him wellon future occasions. contended further that thiswas a contract which the The Court held the New Hampshireacts to be repug- Constitution "intended to withdrawfrom the power of nant to the Constitution, and Dartmouth state legislation." He was clearly troubled, University once however, thatagain became Dartmouth College. Morethan just the his application of the contract clausemight not square fate of a small New England college with the intention of the framers. was involved in the Dartmouth decision. The principle thatcorporate charters were protected by the Constitution ensuredthat pri- It is ?nor? than possible that thepreservation vate corporations would have of rights of this description a large measure of free- was not particular- dom from public control. Thisfreedom in turn ly in the view of the framers of theconstitution facilitated the development when the clause under consideration the corporation into the was in- dynamic institution of American capitalism.Historians troduced into that instrument. It isprobable are in general agreement that the Marshall Court's that interferences of more frequent deci- recurrence, sions (including others besides thecontract cases) stim- to which the temptationwas stronger, and of ulated the economic growth of which the mischief was the new nation, most im- more extensive, consti- portantly by creating a widescope for unfettered tuted the great motive forimposing this re- entrepreneurial activity. In effect, if not striction on the state legislatures. deliberately intended, constitutional law underMarshall suited the requirements of a burgeoning capitalisteconomy. The authors of the Constitution, Marshalladmitted, did not contemplate the case of a corporate charter Sturges v. Crowninshield when they adopted the contract clause.But if a rare or rnforeseen case had no part in establishing the constitu- Another decision rendered at the 1819 tional rule concerning the inviolability term of the Su- of contracts, was preme Court also directly affected the economiclife of such a case to be excluded fromthe operation of the rule? the country. Sturges v. Crvaminshieldbrought into question the power of the states toenact bankruptcy legislation, a question themore urgent because it coin- It is not enough to say that thisparticular cided with a business panic and theonset of a severe case was not in the mind of the convention economic depression. Although Congress when the article was framed, was empow- nor of the Ameri- ered by the Constitution to establish"uniform Laws on can people when it was adopted. It isnecessary the subject of Bankruptcies," there%raj no national 2o go farther, and to soy that, had thisparticu- bankruptcy statute at the time. The lar case been suggested, the language extent to which the would states could respond to the economiccrisis hinged on have been so varied, as f,o exclude it,or it the outcome of this case. would have been made a special exception. The Sturges involved the validity ofa New York law that case being within the words of tl-e rule, must provided for the discha-ge ofa debtor from future liabil- be within its operation likewise,unless there ity for his debts after he assigned be something in the literal his pre perty to his construction so ob- creditors. The debtor, in other words,could start with a viously absurd, or mischievous,or repugnant clean slate, enjoying the frec use of such to tne general spirit of the instrument, assets as he as to might then acquire. If there issome doubt whether the justify those wh" orpound theconstitution in framers of the Constitution understood making it an exec,. ?ion. "cord .act" to embrace legislative grants andcorporate charters, none exists for the kinds of contracts between In short, the contract clause had private individ- applicability beyond uals that produced thiscase. Surely it was such con- just those laws (installment laws andlaw postponing tracts, if any, that were meant to have executions for debt) the founding fathers constitutional explicitly protection against impairment. Butwas bankruptcy leg- wished to prohibit. Marshall thusshrewdly surmounted islation by the statos prohibited by the the difficulty of reconciling his Constitution? To interpretation of the answer this question the Court, as in the other Constitution with the intention of the cy,es, framers. The rule could not avoid an inquiry into theintentions of the of construction he employed that exceptions to gen- framers. this Constitution In testing the constitutionality of state bankruptcy cally that all such acts were unconstitutional. laws, the Court had to construe not only the contract clause but also the clause giving Congress power to es- It may also be doublexhether a bankrupt tablish uniform bankruptcy legislation. At. least one jus- law applying to contracts made subsequent to tice, Bushrod Washington, believed the Constitution its passage may fairly be termed a law impair- gave Congress exclusive power over the subject of ing the obligation of contracts. Such contract is bankruptcy. In a circuit court case of 1814. Washington made with a knowledge that it may be acted on voided a Pennsylvania law on that ground while also by the law. But this would not apply to con- finding it to be in violationofthe contract clause. Mar- tracts made out of the state. I sLould feel no shall commented on this very case :n a private letter to hesitation in saying that a particular act of the Washington, dated April 19, 1814 (recently uncovered state legislature discharging a particular indi- and never before published). This letter shows that the vidual who had surrendered his property was chief justice at that time had no fixed views on ne sub- invalid. But a general prospective act presents ject indeed, it "had never before attracted my atten- a question of considerable difficulty. I have not tion." Yet he does adumbrate certain lines of argument thought of the question long enough, nor that werD developed in Sturges and in the later case of viewed it in a sufficient variety of lights to Ogden v. Saunders (1827). have a decided. opinion on it, but the bias of my mind at the moment is rather in favor of Without examining the subject, I had taken it the validity of the law though I acknowledge I for granted that the power of passing bankrupt feel very great doubts whether I shall retain laws resided in the states. It now appears to that opinion. me more doubtful titan I had supposed it to be. Mr. Mare-all to flushrP: Washington Congress has power "to establish an uniform 19 April 1814. rule of naturalizr:!on & uniform laws on the subject of bankruptcies throughout the United States." his would seem to empower Congress Sturgez. v. Crouminshield provided the occasion for a to regulate the whole bankrupt system, & to re- deeper inquiry into the subject, out of which emerged quire in all the states a conformity to the laws Marshall's settled views on the constitutionality of state of the national legislature. But unless Congress bankruptcy legislation. Having privately doubted that shall act on the subject, I sit...uld feel much dif- the constitutional grant of power to Congress precluded ficulty in saying that the legislative power of the states from enacting such laws, the chief justice the states respecting it is suspended by this now turned this doubt into a principle ofconstitutional part of the constitution. law. As for the contract clause, Marshall a dmitted that it But be this as it may, the power granted to "was probably intended to prevent a mischief very dif- Congress may be exercised or declined, as the ferent from any which grows out of a bankrupt law." wisdom of that body shall decide. If, in the opinion of Congress, uniform laws concerning Pie fears & apprehensions which producec bankruptcies ought not to be estat 'shed, it that limitation on the legislative powtr of the dues not follow that partial laws may not exist, Wes were of a different description. Paper or that state legislation on the subject must .,coney, the tender of usebss property, &other cease. It is not the mere existence of the power, laws actir7 directly on the engagements of in- it its exercise, which is incompatible with the dividuals were theta objects of general alarm & exercise of the same power by the states. It is were probably in the mind of the convention. not the rfght to establish these uniform laws, Yet the words may go further; if they do on a but their actual establishment, which is incon- fair & necessary construction, they must have sistent with the partial acts of the states. their full effect. In his mind the only question was whether the New The implicatiJn seems clear that Marshall even t .en York law impaired the obligation of contracts. He had was inclined to bring bankruptcy actswithin the con- no doubt that it did, for it discharged the debtor"from tract clause. Yet he was not prepared to state unequivo- ^111ittility for any debt previously contracted." Marshall 278 this Constituhun had no problem with traditional insolvency laws, which so formed a part of the contract. Chief Justice Marshall liberated the person of the debtor but subjec.ed his fu- was not among this majority, and for the first and only ture assets to payment of his debts. time in his career he was compelled to register a dissent Still, Marshall had to meet the objection that bank- in a major constitutional case. ruptcy laws, which the states had long been in the habit More than a dozen years before, in his letter to Jus- of enacting, were not among the obnoxious acts the tice Washington, Marshall had leaned toward favoring convention sought to prohibit. In his letter to Washing- the validity of a general bankruptcy law that affected ton, he had hinted that the words of the contract clause only future contracts, though he felt "very great doubts may go beyond the particular mischiefs that produced whether I shall retain that opinion." He abandoned that the clause, adding: "If they do on a fair & necessary con-opinion by the time of the decision of Sturges, but not struction, they must ave their full effect." until Ogden v. Saunders did he have an opportunity to The framers, theLief justice explained, were careful present his views in full. Given his earlier exposition of not only to prohibit particular means by which contractsthe contract clause, his dissent from the majority opin- could be evaded paper-money laws, for example ion is not surprising. Once again he insisted that the bat also "to prohibit the use of any means by which the general language of the clause signified a general intent same mischief might be produced." The contract clause to prohibit all laws that impaired the obligation of con- was purposely expressed in general terms to embrace tracts, not just those that were "retrospective." Whether unforeseen cases. A favorite theme that runs through allthe t-ankruptcy law was enacted before or after the of Marshall's decisions in these cases is that the con- making of the contract made no differenc a. Had the tract clause was not directed at particular laws but was chief justice's view prevailed, the states would not have intended "to establish a great principle, that contracts been able to enact any bankruptcy law that discharged a should be inviolable." debtor from liability for his debts. In view of Congress' failure to pass a national bankruptcy statute, such a If as we think, it must be admitted that this blanket prohibition on the states might have proved ex- intention might actuate the convention, that it essively harsh and provoked popular wrath against the is not only consistent with, but is apparently Court. manifested by; all that part of the section Marshall's refusal to bow to political e'adiency is a which respects this subject, that the words used measure of the depth of his convictions aoout the mean- are wall adapted to the expression of it; that vi- ing of the contract clause. If he gave that clause an ex- olence would be done to their plain meaning by pansie reading and broad application, it is because he understanding them in a more lanited sense, sincerely believed that the framers of the Constitution 'hose rules of construction, which have been intended such a reading. In his hands the contract consecrated by the wisdom of ages, compel us clause performed a function similar to that later under- to say that these words prohibit the passage of taken by the Fourteenth Amendment, adopted after the any lax discharging a contract without per- Civil War. That amendment which declared that no forinunce. state could "deprive any person of life, liberty, or property, without due process of law; nor deny to any per- Although the Court was unanimous in Sturges v. son within its jurisdiction the equal protection of the Crowninshieki, the judges were in fact deeply divided laws" became during the twentieth century the Su- on the reach of the contract clause over state bankrupt- preme Court's instrument for applying the Bill of: Rights cy legislation. All agreed that the New York law in this to the states. In light of this development, Marshall's case, which was enacted after the contract was made, comment (in Fletcher v. Peck) tlat "the constitution of was invalid. But what about a law that was already in the United States contains what may be deemed a bill of existence at the time the contract was made? Sturges rights for the people of each state" has special reso- did not explicitly deny the power of the states to enact nance. This statement neatly summarizes the major bankruptcy laws that applied only to contracts made af-theme of his constitutional j'irisprudence. ter the passage of the act. A case that brought this question squarely into view reached the Supreme Court in 1827 Ogden v. Saunders, which like Sturges concerned the constitutionality of a New York law. This Charles F. Hobson is the editor of 'he Papers of John Marshall, time the Court majority upheld the state law on the sponsored jointly by the College of William and Mary and the ground it was within tne knowledge of the parties and Institute of Early American History and Culture. this Constitution ,*"fl 279 45 Religion and the Constitution by A. JAMES REICHLEY

shortly after the adjournment of of a religious test for national pub- religion had often been associated the Constitutional Convention lic office in Article VI, was neither throughout history, and specifically in 1787, Alexander Hamilton hostility nor indifference, but that in the public life of the former encountered on the street in Phi la they had not yet developed a con- colonies. Since no scheme of gener- delphia a professrr from nearby ceptual means for relating religion ally accepter- constitutional doc- Princeton College who told him to public life in a free society. trine to achieve this end was avail- that the Princeton faculty were able, the framers of the original "greatly grieved that the Constitu- Enactment of the First Constitution ducked the subject al- tion has no recognition of God or Amendment most entirely. the Christian religion." Hamilton re- The need to define the relation- plied: "I declare, we forgot it!" Most of the founders were not ship of religion to civil society, Hamilton's dodge was among the particularly pious men. Some, like however, would not go away. In the first in a long series of efforts by Thomas Jefferson and Benjamin American statesmen to reconcile Franklin, v.-are personally religious broad social support for religion in only a very broad and loosely with cultural pluralism and belief in defined sense. But practically all the rights of individual conscience. were convinced that republican In our own time, differences over government rests on moral values the role of religion in public life that spring ultimately from religion. have fueled important political is- They shared George Washington's sues and given rise to both fear and view, that "of all the dispositions resentment among major social and habits which lead to political groups. It is, therefore, worthwhile prosperity, religion and morality to reexamine the constitutional are indispensable supports." Even framework for relations between Jefferson, despit: his personal religion and civil society that the skepticism, held that religion founders eventually worked out should be regarded as "a supple- through the First Amendment, and ment to law in the government of to trace the evolving interpretations men," and as "the alpha and omega through which this structure has of the moral law." since been applidd. Belief in the socially beneficial Religious enthusiasm, buffeted effects of religion led some of the by, the winds of the Enlightenment, founders, including Washington, was at a relatively low ebb in Amer- John Adams, Patrick Henry, and ica in 1787. The effects of the Great John Marshall, to favor mainte- Awakening of the 1740s, which had nance of established churches, di- remained strong at the time of the rectly supported by public funds, in Revolution, had receded, and the their own states. Others, notably beginning of the Second Great Jefferson and James Madison, ar- A waxening was still more than a gued that government should play decade in the future. Nevertheless, no role whatever in direct sponsor- about 75 percent of Americans had ship of religion. All agreed that their roots in some form of Calvin- there could be no established na- ism, and most of the rest belong..., tional church in a country already to Anglican, Baptist, Quaker, Catho- so culturally various and intellec- lic, or Lutheran traditions. A few tually diverse as the new United Jewish congregations had gathered States. in places like Newport, Rhode Is- Their common objective was to land, and Charleston, South Caroli- secure the moral guidance and sup- na. The reason the framers of the port Gf religion for the republic, Constitution avoided the topic of while escaping the political repres- religion, except for the prohibition sion and social conflict with which

46 4 (S 0 this Constitution bitter battle over ratification of the the free exercise ofreligion accord- Constitution in the states,some op- gious liberty in Virginia,quickly ing to the dictates ofconscience," moved in the House of ponents attacked the proposedfed- and assuring that "no Representa- eral charter's failure particular re- tives that the Constitution to include a ligious sect or socic'ty"would be be guarantee of the free exerciseof amended to incorporatea Bill of "favored or established byLaw in Rights, including religion. Several of thestate ratify- preference to others." prohibitions ing conventions, including against establishment ofa national those in When the first Congressmet in Virginia and New York,passed res- religion or infringementon "full 1789, James Madison,who a few and equal rights of olutions calling foran amendment years before had led the fight conscience" by declaring the "unalienable for either the federal right to passage of Jefferson's bill for reli- government or the states. When Madison'sbill

The First Prayer In Congress, September 1774, Carpenters Hall; PArtaderphia, by T. H. Matteson. Library of Congress.

thiS Constitution came tu the floor of the House for lieved to have dominated, kept the to extend full rights of citizenship debate, several members of Con- senate's textual framework com- to the former slaves who had been gress objected that it might be in- bining the religion clauses with the freed under the Emancipation Proc- terpreted to undermine religion. free speech and free press clauses lamation or the Thirteenth Amend- The clause deali..g with establish but toughened the religion clauses ment. Beyond that, some of the meat, Peter Sylvester of New York to read, "Congress shall make no principal sponsors of the amend- warned, "might be thought to have law respecting an establishment of ment spoke vaguely of giving the a tendency to abolish religion alto- religion or prohibiting the free exer- federal government power to en- gether." Benjamin Huntingdon of cise thereof." This formulation was force "the personal rights guaran- Connecticut, one of the five states approved by two-thirds majorities teed and secured by the first eight that still maintained an established in both houses of Congress, and amendments to the Constitution." church, asked if the amendment later ratified by the required three- But the idea that the entire Bill of could be construed to prohibit state fourths of 'he state legislatures Rights might be extended to cover "support of ministers or building of giving us the First Amendment as the states by the due process clause places of worship?" Huntingdon we have it today. or the privileges or hv.,munities said he favored an amendment "to clause of the Fourteenth Amend- secure the rights of conscience," What Did the Fourteenth ment played no significant part in but not one that would "patronise Amendment Do? the debates over the amendment in those who profess no religion at Congress or the state legislatures. all." At Madison's suggestion, the The first thing to be said about For some years thereafter, nei- the First Amendment is that when ther the Supreme Court nor the bill was reworded to make clear governmental community at large that the prohibition against estab- enacted it clearly applied only to lishment applied only to the federal th2 federal government. Madison's showed any signs of believing that government. The entireBillof proposed amendment to prohibit the states were now subject to the Rights was then approved by the infringement by the state on indi- Bill of Rights. In 1876, the Grant administration sought enactment of House without major change. vidual rights of conscience would In the Senate, the ban against have done nothing to upset the es- a constitutional amendmentthat infringement J n rights of con- tablished churches still supported would have specifically prohibited science by the states was dropped, by some of the states. (The last of the states from aiding church-relat- presumably reflecting the Senate's the state religious establishments ed schools. Neither supporters nor particular concern for up; olding was finally terminated when Massa- opponents of the proposed amend- the authority of the state govern- chusetts disestablished the Congre- ment (which passed the House and ments, and the religion clauses gational church in 1833.) But Con- failed in the Senate by only two aimed at the federal level were gress did not approve even this votes) suggested that such aid combined in a single amendment modest prohibition. During the first might already be unconstitutional. with provisions for freedom of half of the nineteenth century, the When some imaginative jurists in speech and a free press. The lan- Supreme Court issued a series of the 1890s began to argue that the guage of the religious clauses was decisions specifically placing the Fourteenth Amendment prohibited considerably watered down, requir- state governments outside the au- infringemcit by the states on some ing only that Congress "make no thority of the First Amendment. of the rights set forth in the first law establishing articles of faith, or At the end of the Civil War, Con eight amendments, the majority of a mode of worship, orprohibiting gress proposed and the ..:.ates rati- the Court first rejected this the free exercise of religion." Under fied the Fourteenth Amendment, claim. this formulation, even the national prohibiting the states from abridg- Beginning in the 1920s, however, government would be permitted to ing "the privileges or immunities of the Supreme Court gradually dis- give direct financial support to the citizens of the United States." or covered a growing portion of the churches, and would be excluded depriving "any person of life, liber- Bill of Rights in the due process only from meddling in matters of ty, or property without due process clause of the Fourteenth Amend- ment. In 1925, the Court ruled in theology or ritual. of law," or denying any person A conference committee be- "equal protection of the laws." The Gitlow v. New York that the free tween, the House and the Senate, chief purpose of the Fourteenth speech and free press clauses of the which Madison is generally be- Amendment, everyone agreed, was First Amendment applied to the

tills Constitution 48 I77te common objective of the founders] was to secure the moral guidance and suppport of religion for the republic, while escaping the political repression and social conflict with which religion had often been associated throughout history....

states. (Git low was the author of a nized prayer in the public schools, lationships that continue to exist left-wing publication that had been and the great tangle of decisions between religion and the federal suppressed by the state of New that forbid some but not all forms government, would still have to be York. He did not himself benefit of public aid to students in parochi- decided at the federal level. From a from the new interpretation, since al schoolshave produced a dis- practical standpoint, the most im- the Court held that his book was an concerting muddle. "We are divided portant question regarding the es- active "incitement" to violence, and among ourselves," Justice Byron tablishment clause now is not the therefore not shielded by the First White ruefully conceded in 1981, extent of its coverage but what Amet.siment.) "perhap., reflecting thedifferent "establishment" means in the con- In 1940, the free exercise clause views on this subject of the people text of the First Amendment. and the establishment clause were in this country." A part of the rea- Some interpreters argue that the at last extended to cover the states. son for the Court's intfAlectual dis- founders intended that the prohibi- The Court decided in Cantwell v. array on establishment clause is- tion against establishment should Connecticut that the First Amend- sues may be the inherent difficulty do nothing more than prevent the ment prohibited the state from of finding the prohibition of reli- government from singling out a par- prosecuting a member of the Jeho- gious establishment in the Four- ticular church for support or recog- vah's Witnesses sect for breaching Lenth Amendment's protection nition, as most of the colonies had the peace by playing a recorded against deprivation of "liberty." done before the Revolution, and as diatribe against the Catholic reli- Recently, some conservative many European governments still gion on a streetcorner in a neigh- scholars and public figures have do today. (Whether the "intentions" borhood of New Haven heavily pop- suggested that the Court may have of the founders should have any ulated by Catholics. From the erred in the whole line of decisions bearing on current interpretation is legacy of Cantwell has sprung the descending from Gitlow. Some a question that I will turn to short- large body of decisions through have even proposed returning au- ly.) In this view, the establishment which the Court has defined and thority over most First Amendment clause presents no impediment generally broadened the rights of issues to the states. It is extremely against government giving support, citizens against infringement on re- unlikely that any foreseeable Court financial or otherwise, to religious ligious liberty or establishment of would abandon federal protections institutions, so long as such aid is religion by either th^ federal gov- against infringement by govern- distributed impartially among the ernment or the states. ment at any level on basic freedoms severalchurches,or among The line of decisions based on of speech, press, or religion. Thcre churches and secular institutions the free exercise clause, though of- is some possibility that a future supplying similar services. ten controversial, has produced a Supreme Court night modify the One trouble with this interpreta- reasonably clear and consistent set current reach of the establishment tion is that it doss not go beyond of guidelines on how far religious clause. But civi! libertarians argue what would have been permitted liberty goes, and where other social that limiting the coverage of the under the First Amendment in the values, such as public safety, the establisnment clause could encour- form originally passed by the Sen- rights of children to education in age some states, such as Utah, ate in 1789. Since the establishment basic skills and citizenship, and the where Mormons constitute about clause as finally enacted contains need for discipline in the armed two-thirds of the population, actual- tighter language, it is reasonable to forces, must take precedence. ly to establish a church. Improbable assume that Congress meant to re- though this result may be, the claim quire something more strict. Fur- The Meaning of provides an effective iast-ditch de- thermore, as Freeman Butts has "Establishment" fense against limiting even the es- pointed out, the founders had be- tablishment clause to the federal fore them examples of religious es- Jn contrast to the decision on government. tablishments in states like Mary- "free exercise," the Court's rulings In any case, even if the states land and South Carolina under basedontheestablishment were exempted from the reach of which public support was autho- clauseincluding the 1948 decision the establishment clause, many im- rized for a number of diffe7ent de- prohibiting the use of public school portant church-state issues, ouch as nominations (all Protestant). Their facilities for religious instruction, federal aid to students in parochial understanding of establishment, the 1962 decision banning orga- schools and the many symbolic re- therefore, must have included more this Constitution 4--, --s.'..,' 2800 -,,,.. ,,15z,,,: ..,,;.....

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Cartoon by Thomas Nast, 25 February 1871, Varper's Weekly. Library of Congress. than favoring a particular church. any religious activities or institu- though not Jefferson, issued procla- At the opposite extreme of inter- tions, whatever they may be called, mationsstablishing national days pretation are tho..,?. who would ap- or whatever form they may adopt, of prayer and thanksgiving. Wash- ply literally Jefferson's phrase call- to teach or practice religion." The ington began the custom, continued ing for a "wall of separation Supreme Court has carried this line by all his successors, of adding the between church and state." (Jeffer- of reasoning to the point of prohib- phrase, "so help me God," to the son's remark appeared in a letter iting display of the Ten Command- presidential oath of office. written more than ten years after ments in the hallways of public the adoption of the First Amend- schools, though the Court itself sits A Positive Freedom ment, but it has been cited so often beneath a frieze depicting promul- in Court opinions that many Ameri- gation of the Ten Commandments, Congress' decision to include the cans have come to regard it almost and of forbidding use of public religious clauses in a single amend- as part of the Constitution.) schocl teachers to give remedial ment with the free speech clause According to these strict separa- instructiontomentally handi- and the free press clause provides a tionists; the establishment clause capped childrenin parochial useful indicator of intention. Clear- requires absolute neutrality by gov- schools. ly, Congress did not regard freedom ernment, not only among religions, It is difficult indeed to find man- of speech or of the press merely as but also between religion and irreli- date for such relentless exclusion privileges for the enjoyment of indi- gion, and prescribes keeping all ac- of religion from publicly supported -iduals. Both of these freedoms tivities of government, including activitiesin the intent of the were justified, not only as personal conduct of Are public schools, founders. The first Congress that rights, but also as essential sup- sealed as tightly as possible against enacted the First Amendment also ports for the conduct of a free any hint of religious influence or appointed chaplains in both houses society and republican ge-rernment. contact. "N'2:ther a state nor the ar.d adopted as part of the ordi- There is every reason to believe Federal Government," Justice Hugo nance governing the Northwest that the founders saw the free exer- Black wrote in 1947, in an opinion Territory the directive, "Religion, cise of religion in Vsame light: still approvingly quoted by separa- morality, and Irnowledge, being both as a guarante iberty to the tionists, "can pass laws which aid necessary to good government and individual and, in "lashington's one religion, aid all -eligions, or the happiness of mankind, schools words, as an "indispensable" sup- prefer one religion over anoth- and the .neans of learning shall port for "pt,litical prosperity." Free er .... No tax in any amount, large forever be encouraged." Presidents exercise of religion, that is, was not or small, can be levied to support Washington, Adams, and Madison, merely to be permitted, like sucn

50 this Constitution 2 Theline of decisions based on the free exercise clause, though oftencon- troversial, has produced a reasonablyclear and consistent set of guidelines on how far religious liberty goes.... In contrast. .., the Court's rulings based on the establishment clause... have produced a discon- certing muddle.

unspecified general rightsas travel government or the institutional or recreation, but positively t' be informed as Supreme Court jus- churches, they added the establish- tices, or opinion at the encouraged, like the freeexpres- ment clause. more refined sion of ideas, as a vital contributor levels of culture, or opinionelevat- ed by judicial vision. There is to the public good. J"dicial Activism some- Of course, the First Amendment thing to be said for all of theseaz_ includes no parallels to the estab- partial sources for judicialreason- In recent times, a school of legal ing, but all hold obvious perils lishment, clause in theareas of philosophers known generally as speech or the press. Government, as standards to be reliedon by the judicial activists, oramonE, legal beside encouraging free discussion courts in a political democracy. scholars as"noninterpietivists" The activists surely and a free exchange of ideas,may (because they do not believe are right also, under the First Amendment, the when they argue that the Constitu- courts should be limited to inter- tion should not be employed enter the marketplace of ideas with preting the text of the Constitu- as a substantive arguments andpolicy judicial cookbook, in which legal tion), has held that the intentionsof recipes can be found to apply proposals of its own. It hasno such the framers of the Constitution to right in the area of religion. are particular cases. As Laurence Tribe, The to a great extent unknowable,and founders recognized the dangers a leading proponent of noninterpre- to in any case should have littlebear- tivism, says, the courts should social harmony, personalfreedom, ing on current understanding and religion itself if of ba- search out "the principles behind government sic law. Lawrence Friedman,pro- attempts to sponsor itsown ver- fessor of law at Stanford, has the words" in the written Constitu- sions of religious practiceor belief. tion. But in doing so, they must,if argued that in the modern United their decisions are to be accepted To counteract these dangers,they States part of the functionof the enacted the establishmentclause. as objectively valid, seek the princi- courts should be toact as ples that moved the authors They specifically rejectedany pub- "brooms," sweepingout legal of the lic religionor civil religion,as it is Constitution and its amendments anachronisms that "cannotnow be rather than impose standards de- now sometimes calledfor the repealed" because of political United States. By prohibitingestab- rived from a vaguely conceived bloc Ages. In performing thisclean- contemporary "general culture." lishment of religion, theyintended up function, Friedman suggests, the Tribe concedes, "The Justicesmay that governmert should giveno di- courts should: draw ona general rect support or sponsorshipto any no follow a policy of 'anything sense of where society currently goes' so long as it helps put church, or any group ofchurches, stands. "The measuring rods an end or even to the cause of religion in are to what they personally consider to very vague, very broad principles. be injustice." general. But they did not intendthat These are attached looselyto During the 1960s and the 1970s, prohibition cf establishment should phrases in the Constitution.They extend to preventing symbolicac- some of the Supreme Court's strict are connected more organically to separationist decisions, perhaps knowledgment of the dependence the general culture." re- of civil government, acting against an earlier periodof as of all life, on The question of what ismeant by transcendent direction,or to im- excessive passivity, went well be- "general culture" asa standard or yond any principles thatcan credi- peding normal functions ofgovern- judicial interpretation is particular- ment in areas like education bly be ascribed to theenactors of and ly problematic with regardto estab- the First or Fourteenth Amend- health care that mightindirectly lishment clause issues. If general benefit church-related institutions. ments. To claim otherwise is like culture is equated with public opin- suggesting that the enactors of The founders sought to maintain ion, many of the Court's decisions the a society in which civil government Fourteenth Amendment hada se- in the 1960s and 1970son establish- cret plan to reimpose slavery. would receive moral supportand ment clause cases were without guidance from transcendent values. ground. National opinion polls have Return to Accimmodationism To help promote continuingrenew- al of the source for consistently shown a large majority recognition of of the public favoring return ofor- these values, they enactedthe free More recently, the Court hasap- ganized prayer to the public peared to move back towardmore exercise clause. To assure thatthe schools, for example. By general source would not be polluted by the traditional interpretations. In 1983, culture, Friedman maymean public the Court upheld the constitutional- narrow political interests of either opinion if the public were as well ity of the Nebraska legislature'sem- this Constitution 51 r),$k 285 ,

Georgetown Convent School, circa 1900. Library of Congress.

though a concurring opinion by Jus- beneficial interactions than as a ployment of a chaplain and ap- grimly impenetrable barrier or wall. proved a scheme through which tice Sandra O'Connor suggested that state laws calling for moments In any case, the question of what Minnesota permits parents to take a the Constitution intends for the restate income tax deduction for part of silence without specific mention of prayer might "not necessarily lationship between religion and civ- of th2 costs of educating their chil- il government will no doubt contin- dren in parochial schools. In 1984, manifest the same infirmity." Also the Court found no implication of in 1985 the Court issued the prohi- ue to cause much controversya bition against use of public school tribute, after all, to the unquench- establishment in maintenance by able vitality of religion in American the city government of Pawtuckec, teachers to give remedial instruc- Rhode Island, of a nativity scene tion to handicapped children in pa- national life. during Christmas season. And in rochial schools mentioned above. Many of the Court's recent estab- 1986 the Court let stand on prece- Suggested additional reading dural grounds a policy instituted by lishment clause decisions have Robert N. Bellah and Phillip E. Hammond, the public schools in Williamsport, been closely divided. To the extent that prediction is possible, it seems Varieties of Civil Religion(1980). Pennsylvania, of making school fa- Walter Berns,The First Amendment and the cilities available for use by volun- likely that the accommodationist Future of American Democracy (1985). teer prayer groups onavasame trend will continue, though not R. FreemanButts, The American Tradition nearly back to the point at which in Religion and Educatioi(1950). basis as other extracurricular clubs. God, Caesar, and the Constitu- The Court's apparent trend to the previous trend toward strict se- Leo Pfeffer, parationism began in the 1940s. The tion(1975). ward a more accommodationist Laurence H. Tribe,God Save this Honorable stance has by no means been unde- principle of institutional separation Court (1985). viating. In 1985, the Court ruled between church and state will sure- unconstitutional an Alabama stat- ly be maintained, though the line of ute authorizing a one-minute period separation is likely to be regarded A. James Reichley is a senior fellow in of silence in the public schools "for more as a fence throughwhich governmental studies at the Brookings meditation or voluntary prayer" church and state carry on mutually Institution. this Constitution 52 The Constitution and Criminal Procedure by JOHN C. HALL

n September1,1982, Santa preme Court and that provisions would clearly mark the boundaries Clara, California policeoffi- found in the federal Bill of Rights of government power, and to which 0cers received an anonymous would govern its outcome. Such an the government could be held ac- tip that an individual named Dante occurrence would not have been countable. Carlo Ciraolo was growing mari- possible in their day. It is interest- Accordingly, they created a fed- huana in his back yard. Because ing to trace the development of the eral government composed of three two fences completely enclosed the process which made it common- branches, with the functions and yard, obstructing observation from place in ours. powers of government distributed the street level, the officers flew among those three independent over the property in a small air- A More Perfect Union branches to form a system of plane and observed the marihuana checks and balances. It could exer- from that vantage point. Using the When the delegates met in Phila- cise those powersbut only those information thus obtained, the offi- delphia in the summer of 1787 to powersset forth in the new Con- cers acquired a search warrant and begin the work which produced the stitution, which would henceforth seized 73 marihuana plants, each 8- present Constitution, they recog- be "the supreme law of the land." 10 feet in height. Ciraolo's convic- nized the difficulty of the task Among the grants of power, the tion in state court, for cultivating a which confronted them. Their re- framers included certain specific controlled substance in violation of cent past had defineditclearly prohibitions, designed to preclude California law, was overturned by enough: to establish a central gov- recurrence of some of the abuses the state appellate courts on the ernment possessing sufficient pow- suffered under the English. For ex- ground that the aerial surveillance er to govern, but without the capac- ample, the new Constitution specie of his property violated his consti- ity to become a tyranny. As men ically prohibited the enactment. of tutional rights. On May 19, 1986, the who had been born into the rich bills of attainder (legislative acts United States Supreme Court de- heritage of English history, they declaring a person guilty of a clared the overflight permissible laid strong claim to those principles crime) ar a ,oc post facto laws (stat- under the Fourth Amendment to of self-government and personal utes designed to punish retroactive. the United States Constitution, and liberty which had begun to take ly actions which were not unlawful the evidence thus obtained was tangible form in England with Mag- at the time of commission). In addi properly admitted against Ciraolo na Carta in 1215, and which had tion, the writ of habeas corpusa at his state criminal trial (U.S. v. continued with a persistent,if remedy against illegal confine- Cirado, (1986)). somewhat halting, development mentcould not be suspended ex- This case, and the manner in into the unwritten English constitu- cept in c' emergency. Most which it was resolved, would pre- tion and common law of their own importantly, the crime of treason, sent several surprises to the fram- day. used with such ingenious flexibility ers of our Constitution. Obviously It surely is one of the ironies of by the King and Parliament to quell they would not yet have heard of a history that the American Revolu- political dissent throughout English state called California, and they tion was inspired by English princi- history, was placed above the ebb would undoubtedly be impr-,d ples of liberty. When the Americans and flow of political tides by fixing with the technology whic.. .le claimed protection against taxation its definition in the Constitution the overflight of a man's property without representation or unrea- itself. possible. They probably would be sonable searches and seizures, they shocked to learn that the same were only asserting the rights A Bill of Rights hemp plant which they had used to which they had come to expect as make rope, and which had been a good Englishmenrights which Notwithstandingthegreat major cash crop at such notable were deeply rooted in the customs achievement, many people saw in places as Mount Vernon, had not and laws of the people. Disregard of the document, and the government only acquired a new name but also those rights by the English Crown it created, the seem, of future tyran- a new usage. But even beyond these and Parliament not only led to the ny. A bill of rights, they insisted, points, perhaps the most puzzling Revolution, but also persuaded the should be added to prevent such an of all would be the knowledge that Americans that a new course must occurrence. The argument that the a local police case could be re- be pursued. There must be a writ- new government could only do viewed by the United States Su- ten constitution: a document which what the Constitution clearly per- this Constitution 53 ; (L287 Interior of the Star Chamber, Westminster, from The History of el Ancient Palace and Late Houses of Parliament and Westminster... by Edward Wedlake Bayley and John Britton, 1836. The Edger Shakespeare Library, Washington, D.C. mitted, thus making a bill of rights compelled self-incrimination; and searched or the things to be seized. superfluous, offered little consola- the Sixth Amendment guarantee of The right to be free in one's own tion to those who feared that this the right to counsel in criminal cas home from arbitrary government Constitutionwhich would now be es. Each of these provisions reaf- intrusions -vas a fundame 'al tenet the "supreme law of the land" firmed values already deeply rooted of English custom predat ig even could someday be broadly inter- in American custom and law, the Magna Carta, and while not always preted to grant the very powers disregard of which by the Crown scrupulously respected by the which they believed should hn pro- am, Parliament had done much to Crown, it was nonetheless trea- hibited. fan the flames of revolt among the sured by the people of America as This strong sentiment for a bill of colonists. well as of England. In 1766, Parlia- rights prompted many of the states, ment had declared general war- when ratifying the Constitution, to Unreasonable Searches & Seizures rants illegal in the mother country urge upon the new Congress the Prohibited but continued to allow theuse in submission of amendments to ac- the American colonies. The abuses complish that object. Accordingly, Nothing affronted Americans of the general warrant helped to the First Congress to meet follow- more than the use of general war- sow the seeds of revolt and inspired ing the adoption of the Constitution rams and writs of assistance by the the language of the Fourth Amend- submitted twelve amendments to English Government. These general ment: The right of the people to be the states, ten of which were rati- warrants were repugnant for a vari- secure in their persons, houses, fied by 1791, and the first eight of ety of reasons: universal in nature, papers, and effects, against unrea- which we now know as the Bill of they authorized anyoneincluding sonable searches and seizures, Rights. private citizensto eYlcute them; shall not be violated, and no war- Three of the new provisions the government could issue and ex- rants shall issue, bvt upon proba- would, in time, have great impact ecute them without justification by ble cause, supported by oath or on criminal law enforcement: the sworn statements of fact; and they affirmation, and particularly d.,- Fourth Amendment restrictions on permitted broad searches of any scribing the place to be searched, searches and seizures; the Fifth place, unconstrained by time limits and the persons or things to be Amendment protection against or descriptions of the places to be Seaed.

54 288 this Constitution Today, every law enforcement academy in America provides Irak ving in constitutional law, because virtually every aspect of an officer's job touches that area where the authority of government and the liberty of the individual meet.

Compelled Self-Incrimination tion against compelled self-incrimi- deemed essential to union, and to Prohibited nation would remove the incentive the attainment of those invalu- to use torture as a means of extract- able objects for which union was Americans wrote the protection ing confessions from the accused sought, might be exercised in a against compelled self-incrimina- and would place the burden on the manner dangerous to liberty. In tion into the Fifth Amendment. Ear- government to establish a person's almost every convention by ly in English history there had de- guilt through independent evi- which the Constitution was veloped a particularly obnoxious dence. With that object in view, the adopted, amendments to guard entity called the Court of the Star Fifth Amendment affirmed: N o per- against the abuse of power were Chamber. Originally intendedto son ...shall be compelled in any recommended. These amend- niete out swift justice to robber criminal case to be a witness ments demanded security against bands and other common criminals against himself. the apprehended encroachments who preyed upon the good folk of of the general governmentnot the realm. it eventually grew into a The Right To Counsel against those of the local govern- dreaded instrument of the Govern- ments. ment to ferret out and punish politi- Althoue the right to counsel can Since the administration of crimi- cal dissenters. Its method included be found hi early English law, the nal justice fell predominantly to the the oath ex officio which required a right to counsel in all criminal pi os- states, the greatest degree of law person suspected of a crime to an- ecutions was peculiar to America. enforcement power in the United swer all questions put to him by the Under English li,:- the right to Statesthat which resides in state Court. With no jury to hear the counsel applied in misdemeanor andlocal governmentoperated evidence, inquisitors used even tor- but not felony cases, except when for much of our history unre- ture to encourage the cooperation the charge was treason. By con-strained by the federal Bill of of the accused. As might be expect- trast, in America, twelve of the thir- Rights. The founding generation ed, the Court of the Star Chamber teen original colonies had granted had not objected because most of had great success in obtaining con- the right to counsel in all criminal the states hau bills of rights in their victions, and that success encour- cases, and the inclusion of thatown constitutions with language aged other English courts to bor- right in the Sixth Amendment re- similar to that of the federal char- row its tactics. In 1615, the Crown flected the value attached to it in ter. Ultimately, however, the great charged a man named Edward Pea- that day. The pertinent languagediversity of interpretation by the cham with treason. Prior to his trial reads: In all criminal prosecu- state courts of state constitutions in the Court of King's Bench, the tions,.. . the accused shall enjoy led to highly divergent practices in Attorney General, Sir Francis Ba- the right... to have the assistance the several states. Still, in the ab- con, made the following report to of counsel for his defense. sence of a specific constitutional King James I: grant of power, the federal govern- Upon these interrogatories, Pea- Limited Application ment lacked the capacity to enforce cham this day was examined be- a uniform national standard of fore torture, :n torture, between These treasured rights, and some criminal procedure. torture and after torture; notwith- twenty-five others set forth in the standing, nothing could be drawn Bill of Rightse.g., freedom of reli- Due ProcessThe Law of the from him, he still persisting in his gion, speech, press and assembly Land obstinate and insensible denials, applied only to the Federal Govern- and former answers. ment. The Supreme Court removed The first step toward change Even though the Court of the Star any doubts which may have existed came with the adoption of the Four- Chamber had been abolished by the on this point in the 1833 landmark teenth Amendment in1868, just time of the Revolution, and its evil decision of Barron v. The City of three years after the Civil War end- influences largely removed from Baltimore. Reviewing the original ed. In many respects that war mere- the English courts, its memory re- purpose for inclusion of the Bill of ly climaxed a long series of chal- mained to influence the men who Rights in the Federal Constitution, lenges to the capacity of the sought to establish an instrument Chief Justice John Marshall wrote. Federal Government to maintain by which the power of government Serious fears were extensively the Union in the face of persistent could be constrained. The protec entertained that those powers ... assertions of sovereignty by the in-

this Constitution 55 289 dividual states. New that the issue rights guaranteed against the Fed- and justice (Powell v. Alabama, had been settled by the war, it eral Government by the Bill of 1932). seemed fitting to establish a com- Rights equally and immediately ap- In 1936, two black men stood mon meaning for the principles plicable against the states. Howev- trial in Mississippi on the charge of which had brought the Union into er, the Supreme Court rejected that murdering a white man. The evi- being. Aimed directly at the states, view shortly after the amendment's dence against them consisted of the Fourteenth Amendment de- adoption. As an alternative, the their confessions, which police ad- clared that no state could "deprive Court took the position that "due mittedly extracted through a proc- any person of life, liberty, or prop- process" includes all of those prin- ess of alternately hanging them and erty, without due process of law." ciplesbut only those principles then beating them with a large belt. Those people even vaguely famil- which are "so rooted in the tradi- At their trial, which occurred a day iar with English and American his- tions and conscience of our people and a half following their arrests, tory needed no introduction to the as to be ranked as fundamental." the rope marks were still visible on term "due process." In England as Accordingly, the Court has used their necks. A deputy sheriff who early as the year 1354, it connoted such expressions as "fairness," "im- directed and participated in the "in- the "law of the land" as first record- plicit in the concept of ordered terrogations" testified as to the ed in Magna Carta more than a liberty," or "canons of decency and manner in which he obtained the century before. In America, it was fairness which express the notions confessions. The deputy described not only incorporated into the Fifth of justice of English-speaking peo- the beatings as "not too much for a Amendment as a restraint upon the ples," in an effort to describe the negro; not as much as I would have power of the Federal Government, parameters of "due process." done if it were left to me." Despite by the mid-nineteenth century it These concepts do not necessari- this testimony, the jury returned a could be found in several state con- ly include, nor are they limited to, verdict of guilty, and the defendants stitutions as well. Unfortunately, the provisions of the Bill of Rights. were sentenced to death. Notwith- the shifting tides of English law and However, with continual interpreta- standing the fact that Mississippi custom had precluded the develop- tion by the Court, "due process" law prohibited the use of an ac- ment of any precise definition of as it applies to the states through cused's coerced confession at his the term in that country, and its the Fourteenth Amendmentbears trial, the state supreme court up- incorporation into the Fifth Amend- a remarkable resemblance to many held the convictions. The United ment, among n imerous other speci- of the provisions which apply to the States Supreme Court reversed fied rights, served to camouflage its Federal Government in the Bill of them, not on the grounds that the significance. Consequently, there Rights. The following cases will Fifth Amendment prohibits com- was little opportunity, or apparent serve to illustrate the point. pelled self-incrimination, but be- need, for further definition in this In 1932, a Scottsboro, Alabama cause the Court viewed the extrac- country. It stood more as a gener- jury convicted seven young, indi- tion of confessions by torture as alalbeit importantexpression gent, illiterate black men of raping contrary to the principles of funda- of principle than a guarantee of two white girls. Despite their inabil- mental fairness (Brow, v. Missis- anything specific. ity to defend themselves or to hire sippi, 1936). The Fourteenth Amendment counsel, the trial court took no In 1949, local police in California would change that by providing a effective steps to provide the defen- arrested a man suspected of selling common standarddue process dants with the assistance of coun- narcotics. At the time of his arrest, through which both federal and sel to conduct their defense. The he managed to swallow some cap- state power could be measured and Supreme Court reversed the con- sules despite efforts by the police to restrained. Equally important, a uni- victions on the grounds that the stop him. The officers conveyed form meaning and application denial of effective counsel in a him ..0 a hospital where a stomach would henceforth be given to that criminal case violated the "due pump produced partially dissolved standard by the Supreme Court of process" clause of the Fourteenth capsules containing morphine. The the United States. Amendmentnot because of the U.S. Supreme Court reversed his Nevertheless,modifications Sixth Amendment guarantee of the state court conviction, not because emerged slowly. It was supposed by right to counsel, but because the the actions of the police violated some that adoption of the Four- Court considered it to be funda- the Fourth Amendment protections teenth Amendment would make the mental to the principles of liberty against unreasonable searches and

56 this Constitution against compelled self-incrimination (Malloy v. Hogan, 1964). Each of these provisions directly influences law enforcementstate and local, as well as federal and establishes a common boundary beyond which government power cannot go. Criminal procedurethe means by which government en- forces its criminal lawshas been elevated to constitutional status. Thus, the Supreme Court's interpretations of the Fourth Amendment provisions governing searches and seizures, the Fifth Amendment privilege against compelled self-incrim-

qA-1 CASE FE-LL NART wi-kerl 1 PLC.- AMP TIE ination and the Sixth Amendment SSVENTEEATI-1- AM 'ilk'Ai el%) T IT MY To .D0.uiThl right to the assistance of counsel in E.LE 1100 OFSEEIAT02S. criminal prosecutions, are now as relevant and important to local police officers as they are to their federal counterparts. Conclusion seizures, but because their conduct, Amendment has absorbed them, the Court rationalized, "shocks the the process of absorption has Today, every law enforcement conscience" and therefore violates had its source in the belief that academy in America provides train- "due process" (Rochin v. Califor- neither liberty nor justice would ing in constitutional law, because nia, 1952). exist if they were sacrificed. virtually every aspect of an officer's In each of these cases the Court This so-called "absorption" doc- job touches that area where the carefully pointed out that the basis trine soon gave way to a more authority of government and the for reversal lay not in the fact that direct approach"selective incor- liberty of the individual meet. Ar- the state actions had violated some poration." By this process the Court rests, searches and seizures,ives- provisions found in the Bill of selectively incorporates specific tigativedetentions, eyewitness Rights, but because they violated provisions of the Bill of Rights into identification, interrogations: all of rights which the Court considered the Fourteenth Amendment "due these everyday law enforcement to be fundamental to the American process" clause, thus making them tasks, and more, are governed by concept of justice. In other words, applicable to the states. For exam- the Federal Constitution. Under while disclaiming any intent to in- ple, in the 1949 decision of Wolf v. their own constitutions, the states corporate the Bill of Rights into the Colorado the Court held that the may provide greater protections to "due process" clause of the Four- Fourth Amendment protections their people; but by virtue of the teenth Amendment, the Court in- against unreasonable searches and "due process" clause of the Four- genuously allowed "due process" to seizures apply to the states through teenth Amendment, they cannot "absorb" certain principles found in the "due process" clause. Similarly, provide less. the Bill of Rights as well. Supreme in the years which followed, the Court Justice Cardozo, writing in Court held that specific provisions the 1937 decision of Palko v. Con- of other amendments also apply to John C. Hall is a graduate of the Univer- necticut, explained the process in the states, including the Sixth sity of Louisville Law School and a Spe- this fashion: Amendment right to the assistance cial Agent of the Federal Bureau of These [rights] in their origin were of counsel in a criminal prosecution Investigation, assigned to the FBI's Le- gal Counsel Division. He has published effective against the federal gov- (Gideon v. Wainwright, 1963) and several articles dealing with the Consti- ernment alone. If the Fourteenth the Fifth Amendment privilege tution and criminal procedure. this Constitution 57 291 Constitutional Understanding and American Culture: Future Prospects in Historical Perspective by MICHAEL KAMMEN

(n 1850, just a year before he died, that are annually fought over this government and that it cannot pro- James Fenimore Cooper devoted much-neglected compact. vide a corrective for every single one of his most intriguing novels Several young people subse- social injustice. to a theme of enduring importance: quently engage the skeptical uncle So James Fenimore Cooper man- American misunderstanding of in an extended conversation about aged to encapsulate quite a few their mode of government in gener- the gap between American ideals basic issues concerning the very al, and the U. S. Constitution in and less attractive aspects of Amer- nature of our Constitutionissues particular. Titled The Ways of the ican reality. When one young man that are debated just as heatedly Hour, this novel is also a precursor calls attention to the ideals of liber- today as they were two hundred of the modern mystery storyan ty and justice, the uncle responds years ago and in Cooper's mature elderly couple is murdered and that if he means "professions of lifetime as well. Above all, however, their home is burned. Cooperjustice, and liberty, and equal Cooper exposed several of the places the traditional institution o. rights," then "in all those particu- myths and misunderstandings that trial by jury at the center of The lars we are irreproachable. As 'pro- have surrounded the Constitution Ways of the Hour and uses it tofessors' no people can talk more ever since its genesis. Was he being reveal our naive assumptions con- volubly or nearer to the point." Fi- unfair? Did he distort the history of cerning democracy. Is it reasonable nally, referring to a recent conven- public perceptions of our frame of to presume, he wondered, that a tion held to revise the New York government? The purpose of this dozen ordinary citizens, after exam- state constitution, a niece named essay is to provide a succinct re- ining all the evidence, can really Sarah asks: "Why was it necessary sponse to such questions. ascertain "the truth"? Cooper grad- to make a new constitution ... if the ually brings his readers to recog- old one was so very excellent?" The A "Mythical Charter" nize the jury room itself as a micro- uncle, whose role is that of the cosm of American society: a focal cynic in this extended civics lesson, We all know that the U. S. Consti- point where he can intensively patronizes Sarah: tution is a real document. Although scrutinize democratic institutions, The answer might puzzle wiser we cannot touch it, we may look at politics, and ideals. heads than yours, child. Perfec- the original under glass and a pro- At one point in the novel a young tion requires a great deal of tin- tective saffron light in the Rotunda man offers a toast to the Constitu- kering, in this country. We of the National Archives building in tion, as he holds a copy aloft: "The scarcely adopt one plan that shall Washington, D. C. We can also read Constitution of the United States; secure everybody's rights and lib- various narratives of the Grand the palladium of our civil and reli- erties, than another is broached, Convention that met at Philadel- gious liberties." After his uncle, a to secure some newly-discovered phia in 1787, and of the prolonged constitutionallawyer,challenges rights and liberties. struggle over ratificationan out- the validity of the claim made by The dialogue is timely for us become that contrary-minded Rhode the toast, Cooper editoralizes about cause it is timeless. We have had a Island resisted until May 1790, al- a larger problem that he regarded protracted debate in the United most two years after the Constitu- as representative of American cu.- States concerning the Constitution tion had been ratified by the re- ture as a whole: as a panacea for newly perceived quired number of states. As for his nephew, he knew no social ills, concerning the ease with Moreover, anyone with sufficient more of the gr..at instrument he which it can or should be changed, curiosity and patience can pick up a held in his hand than he had and therefore concerning the very constitutional history of the I Tnited gleaned from ill-digested newspa- nature of a written constitution that States and read about its legal and per remarks, vapid speeches in serves as fundamental law. We have political history ever since 1789. In Congress, and the erroneous no- had numerous advocates of the such weighty tomes (a widely used tions that float about the country, concept of an adaptable or living one these days weighs exactly three coming from "nobody knows constitutionwhat Woodrow Wil- pounds), we learn how the Su- whom," and leading literally to son constantly referred to as a "ve- preme court has interpreted the nothing. The ignorance that pre- hicle of life"and we have distin- text; orthen, to a lesser degree, vails on such subjects is really guished jurists and constitutional what political battles have been astounding, when one remem- lawyers who insist that our Consti- fought in its name. bers the great number of battles tution does not guarantee perfect Much less familiar, however, is

5a 9 2 this Constitution ng CEH AL.CE

44S.MAoisot4.

the history of public responses to the U. S. Constitution. In order to reveal that history, it may be useful to think about the Constitution as a N,'ott.fir-hke "mythical charter," a concept dewl- oped by Bronislaw Malinowski, one -,z,mmtupiCOMPOSED, BY of the founders of anthropology as a professional discipline. In the Frier et ineommemor;i6riof-the ott,i-pozowLeAfts,0300. Kuba kingdom, for example, locat- 4.1/44:46.k.,00w -11RESIIITBREBTHERIVEBURY. ed in the central Congo (near OF HE Zaire), their "mythical charter" was MITYAMAMIIIIIM11-4.1 St3s11:\61.:: BM». the skull of an early king wrapped 18117 in pieces of cloth, one piece taken from the shirt of every king who had died since the venerable La- shyaang ruled, whose polished skull rested securely at the epicen- ter of this tidy package. On various occasions the Consti- 1.-EkMCC12ISU11.".4(1 gi)1 te,41t:TTEL tution has been treated as such an 4TEIINIALCPAMISSI4" icon, and consequently it has acquired the character of one. Let's take a look at a typical example of FAVORni nineteenth-century public oratory, RS. the speech given at Plymouth, Mas- sachusetts, by erstwhile Congress- man Robert C. Winthrop on Decem- ber 21, 1870, to celebrate the 250th anniversary of the landing of the Contradictory Signals in Andrew Jackson's famous Bank Pilgrims. He described American of the United States veto message history as a great procession, and While Winthrop sought simply to of 1832. Referring to the working then at a critical moment provided inspire awe for the Constitution, class in 1834, Webster proclaimed this vignette: "There are Hamilton other public figures presented more that "the Constitution was made to and Madison and Jay bringing for- contradictory signals. Daniel Web- protect this industry, to give it both ward the Constitution in their unit- ster, "its defender," was a central encouragement and security." On a ed arms; and there, leaning on their figure for the generation following different occasion, however, he in- shoulders, and on that Constitu- the framers. His career and public sisted that "a republican form of tion ... is WASHINGTON.... There utterances offer ample evidence government rests not more on polit- are Marshall and Story as the ex- that the Constitution could mean all ical constitutions than on those pounders of the Constitution, and things toall people. Sometimes laws which regulate the descent Webster as its defender." Webster called the Constitution "a and transmission of property." The All of those united arms make the sacred instrument"a highly repre- mythical charter thereby became a founders sound filo some sort of sentative statement among Ameri- property-protecting text, de-mysti- undulating octopus. Big George cans of his daybut at other times fied, and reduced to the same level Washington leaning on littlr Jemmy his cynicism verged upon the view as ordinary legislation. Two occa- Madison sounds laughaule. Big attributed to a Gilded Age congress- sions, two conflicting messages. George leaning on the mythical mar.: "What is the Constitution Although Webster had his detrac- charter sounds ludicrous. But that's among friends?" tors, he was also widely respected. the way it is with mythical charters. Webster did believe in natural Few lawyers have argued more ef- They are very sturdycapable of law, and he ascribed to it a status fectively before the U. S. Supreme carrying a nation, never mind a few higher than the Constitution. He Court and few Americans have had framers in assorted sizes. mocked the "constitutional trash" their orations memorized by mil- this Constitution 59 1).(k).(, 93 On. various occasions the Consti- tution has been treated as ... an icon, and consequently it has acquired the character of one.

lions of schoolchildren as "Black 1776the right of revolution aration of church and state. Did the Dan'l's" were. Isit any wonder, was rejected with equal vehe- framers truly mean to prevent any then, that public response to the mence (and some casuistry) in form of prayer or meditative silence Constitution must be measured out 1861. More misunderstanding. in public schools? We will never in pecks of ambivalence? Three ex- In 1878 William E. Gladstone, the know; and we are no more likely to amples of ambiguous messages em- Liberal British statesman, pro- achieve a consensus on that matter anating from public figures can claimed that "the American Con- than we are concerning the origins help us to appreciate various as- stitution is, so far as I can see, the of the Second Amendment. Does pects of this phenomenon. most wonderful work ever struck "the right of the people to keep and Ever since the years of the young off at a given time by the brain and bear arms" mean what the National republic, contemporaries have ac- purpose of man." Such a splendid Rifle Association contends? Histori- knowledged a sharp 'fivision be- compliment echoed through the ans and constitutional lawyers have tween the advocates of broad con- pages of American history and civ- strong reasons for skepticism. Nev- struction,represented by ics textbooks for more than half a ertheless, we are unlikely to Alexander Hamilton and John century thereafter. Meanwhile, achieve unanimity on that issue ei- Marshall, and the devotees of however, those who bothered to ther. That is why "constitutional strict construction, represented examine Gladstone's remarks in response" really ought to be by Thomas Jefferson and James context bitterly resented them be- phrased in the plural. Americans Ittadison. We all know, however, cause careful readers recognized have had multiple and varied re- that in 1803 when the Louisiana what a left-handed compliment sponses to the United States Con- Territory beckoned, Mr. Jefferson, Gladstone had bestowed. Just stitution. What else should we ex- in order to buy the land from the look what happens when we re- pect in a pluralistic society? French in the absence of a specif- store the fifty-some words that ic constitutional provision autho- actually preceded his grudging Anniversaries rizing him to do so, brushed his praise: "The two constitutions of constitutional scruples away and the two countries express indeed How comforting it would be, at momentarily became a broad con- rather the differences than the re- least, if an analysis of constitutional structionist. Other champions of semblances of the nations. The celebrations in United States his- judicial restraint have become one is a thing grown, the other is a tory could shed crystalline light on chameleons of judicial activism, thing made.... But, as the British the meaning of the document in our and vice versa. These switches Constitution is the most subtile culture. On the eve of the 1937 don't give the American people a organism which had proceeded Sesquicentennial, after all, James ery clear message so far as con- from the womb and the long ges- Truslow Adams declared that "the stitutionalism and , ublic policy tation of progressive history, so chief value of all anniversaries is are concerned. the Americar Constitution is...." perhaps that they make us pause On the eve of the Civil War, in American chauvinists did not care and consider where we stand." The 1860-61, Abraham Lincoln infor the notion that their nation anniversaries of our Constitution, voked the Declaration of Indepen- had been "struck off at a given how ever, have not achieved that dence and the Constitution in or- time." They too wanted the legiti- result. der to deny that states of the macy that historic experience and Consider the Golden Jubilee in Union retained a right of revolu- organic growth could confer. So 1837. The nation had been exhila- tion. Jefferson Davis, an authority an Anglo-American dialogue en- rated in 1826 when celebrating half on the U. S. Constitution, pro- sued for decades. It may have a century of Independence. Eleven claimed his devotion to that docu- been stimulating for jurists and years later,however, littlehap- ment yet argued the contrary. Al- constitutional scholars; but it was pened. Not many people even knew though both arguments contained neither edifying nor instructive for very much about the origins and a degree of legitimacy, four years the public at large. character of the Constitution. Be- of tragic bloodshed resulted in a A different kind of confusion has cause the framers who had been permanent union. Yet we are left arisen from the intermittent debate present in Philadelphia took a fifty- with an anomaly in American po- concerning the "intent" of the fram- year oath of secrecy, only the pub- litical thought. An imperative that ers. Take, for example, the Firstlication of Madison's Notes of all good patriots defended in Amendment's requirements for sep- Debates in 1840 exposed the inten-

so 293 this Constitution tions, frustrations, and above all, with interest in, or knowledge of, nary folks interested in it. the compromises that had taken the U. S. Constitution. How, then, did the Sesquicenten- place in 1787. So three years after Then, after another quarter-cen- nial of 1937 compare with the hit- the Jubilee the American people tury of quiescence, a "cult of the and-miss events half a century be- finally learned in detail, if they had Constitution" flourished in the fore? Clearly some progress had ever entertained any doubts, that United States during the decade taken place. A congressional com- the framers were not of one mind. following 1919. Critics called it a mittee began planning several years But the fiftieth anniversary in 1837 "fetich," but advocates regarded it in advance, with a stated mission had provided almost nothing in the as an antidote to bolshevism, anar- that was as much educational as way of fresh information or under- chism, and socialism. "Consitution celebratory.Congresseventually standing. Day" did so well that by 1923 it was appropriated almost $400,000. Nev- The next major anniversary, the expandedinto"Constitution ertheless, not very many people Centennial in 1887, barely avoided Week." Formal study of the docu- cared. The high school essay and becoming a fiasco. President Cleve- ment (which had never been very oratorical contests did not amount land eventually attended, though he thorough) became a legally mandat- to much. Few homeowners in- did so reluctantly. Congress refused ed part of the school curriculum in stalled the Shrine of the Constitu- to appropriate a penny of federal many states. States' rights enjoyed tion (a replica) that Representative support, and many dignitaries de- a kind of renaissance. Nevertheless, Sol Bloom, Director General of the clined to appear. Chauvinistic and that "fetich" phase did less for Sesquicentennial, urged Americans affluent Philadelphiansencoun- American interest in constitutional- to acquire. tering widespread apathymade ism than FDR's ill-starred Court Franklin Delano Roosevelt's the Centennial a fun party for locals proposal in 1937. Truth to tell, it's 'Court-packing' plan, however, an- and tourists, but also for pickpock- been that way ever since 1787. Gen- nounced on February 5, 1937, did ets and thieves from metropolitan uine constitutional controversy provide the Sesquicentennial with a centers along the eastern seaboard. gets the politicians talking about shot of adrenalin thatitsorely A fine time was had by most; but the document, gets the jurists ex- needed. Public interest in the Su- the reasons had more to do with plaining it, gets the journalists writ- preme Court (and hence in the local pride and commericalism than ing about it, and actually gets ordi- Constitution) remained intense

this Constitution 2 9 5 61 The Constitution as a public issue is more likely to generate interest, concern, even knowledge, than the bland reverence that occurs when everyone lavishes mindless praise upon the document.

throughout 1937thanks, though, iectly, 4 percent gave a response development. The result, surely, is more to FDR's political maneuver- that was partially rigi.t and partially constitutional uncertainty rather ing rather than to a deep-seated wrong (e.g., freedom of speech, than clarification. American concern for the Constitu- press, fear, and want), 20 percent To what degree does the U. S. tion. The Court dispute became far had simply never heard of it, 3 Constitution protect an individ- more important than the planned percent gave vague responses ("I'm ual's right to privacy? Or should commemorative events. Sad to say; not certain," "Can't say," etc). The it? The Supreme Court has re- but so it was. results and proportional percent- sponded positively to that ques- There is a historical lesson to be ages in that particular poll were by tion in sustaining the sale of con- learned from this pattern. The Con- no means the low point between traceptives (1965), the right to stitution as a public issue is more 1937 and the present. view pornographic films in one's likely to generate interest, concern, Ignorance of the Constitution home (1969), and a woman's right even knowledge, than the bland still remains a critical problem, and to have an abortion (1973 and reverence that occurs when every- it can be found in some very high 1986), but negatively concerning one lavishes mindless praise upon places. During August 1986, for ex- the right of consenting adults to the document. ample, when the Senate Judiciary perform homosexual acts in pri- Committee held hearings to assess vate (1986). In so far as privacy Ignorance and Confusion the qualifications of Chief Justice remains contested as a constitu- Rehnquist and Associate Justice tional right, and in so far as the In the half century since 1937 Scalia, partisan bickering broke out concept is applied in an inconsis- we've made some progress toward between Republican and Democrat- tent manner, public confusion improved constitutional k n owled ge ic senators. One Republican sena- about the character of our consti- and understanding, but not a whole tor directed quite a tirade against tutional rights will persist. lot. Systematic public opinion polls the whole process of confirmation Congress has the power to deter- came of age in the years immediate- in general and against the Demo- mine the spheres of the Supreme ly after 1937, and every so often the crats in particular. Toward the end, Court's jurisdiction. Most Ameri- Gallup or Roper or Harris organiza- as he ran out of steam, the senator cans are not aware that Article III, tions asks a sizeable number of asked with a bombastic flourish: section two, speci&s: "The Su- Americans how they view the Con- "Who appointed us the scorekeep- preme Court shall have appellate stitution, the Bill of Rights, or the ers? Who appointed us the judge?" jurisdiction, both as to law and Supreme Court. The opinions ex- Whereupon a fellow senator re- fact, with such exceptions, and pressed are interesting, but they sponded with quiet disdain: "The under such regulations as the rapidly become depressing when Constitutionappointsus."Igno- Congress shall make." Those we read the responses to questions rance, as they say, is no defense. phrases make it possible, howev- asking Americans what they know. Constitutional questions contin- er, for persons or groups who are Late in 1943, for example, the Na- ue to be presented to the American unhappy with the Court's deci- tional Opinion Research Center public in perplexing ways. Let me sions to urge Congress to strip the asked 2,650 Americans: "What do demonstrate by means of five illus- High Court of its author ity in cer- you know about the Bill of Rights? trations: tain areas. 'Court strippers' have Do you know anythingit says? Does the Bill of Rights apply to been especially vociferous on the Have you ever heard of it?" The the states? Between the 1920s and subjects of abortion, school pray- replies ran as follows: 23 percent the 1960s we moved steadily, albe- er, and affirmative action. Is this identified it or stated some part of it it in a piecemeal fashion, in that what the framers had in mind correctly, 7 percent identified it in- direction.In a 1947 dissenting when they wrote the words correctly but had some idea "of the opinion (based upon his under- quoted above? If we concede that spirit of the thing" (e.g., as part of standingof theFourteenth we do not know, are we willing to the Declaration of Independence, Amendment), Justice Hugo Black leave the prospect of 'Court strip- or including "free enterprise, free to claimed that it did apply, and that ping' to caprice, to ideological and do as you please, etc:), 39 percent had become the majority view by political changes of climate? said that they had heard of it but the time he died in 1971. Today, If two-thirds of the states call for a could not identify it in any way, 4 however, the Department of Jus- constitutional convention, then percent identified it utterly incor- tice would like to challenge that one must bc convened. How many

62 2 9 t3 this Constitution Americans know that 32 of the requisite 34 states have now made such a request? No one can really envision what would happen if two more states did pass such a resolution because we have had no additional conventions since 1787. What limits are there to the actions that a modern convention might take? Could the Supreme Court declare any of its actions unconstitutional? That is unclear. Finally, what should the role of the media be in American constitutionalism? Could they play a much needed educational role, for instance, if the Supreme Court consented to permit its public proceedings (cases argued before the Court) to be televised? Does the press behave irresponsibly when it seeks advance information about forthcoming decisions of the Supreme Court and tikl-vo)ri poS ANVONG HERE then 'leaks' such information pre- Op1/4NIE A copy oF Caksli-ru-r ior °, maturely, as ABC-TV did on June 15, 1986, in the case of the Gramm- Rudman-Hollings Act? Does not the press behave irresponsibly (and increase public confusion) when it runs such misleading headlines as the American public on constitu- citizenry, "COURT DECLARES SODOMY IL- tional issues finally begin to do so And we need to have an informed LEGAL." The Court had not done in a sustained and consistent man- ci;i7,enry. William Penn pronounced so; it declared that individual states ner, we may start to achieve the the most enduring lesson very well had the right to pass legislation sort of informed and involved citi- during the 1680s in his preface to concerning sodomy as they saw fit. zenry that the framers believed to the Frame of Government of Pen- The majority opinion in Bowers, be essential for the maintenance of silvania [sic!:Governments, like Attorney General of Georgiav. American liberty. clocks, go from the motion men Hardwick, et at (June 30, 1986) may The televised hearings concern- give them; and as governments are have been inconsistent with previ- ing the Iran/Contra scandal and the made and moved by men, so by ous rulings; but sensational journal- controversial nomination of Judge them they are ruined too. Where- ism only made a confusing situation Robert Bork to the Supreme Court fore governments rather depend worse. inspired the national debate about upon men than men upon govern- Supreme Court Justice Felix the meaning of the Constitution ments." Frankfurter once noted that the that planners of Bicentennial pro- purpose of an opinion was "to edu- grams sought but could never them- cate the public." He admitted, nev- Michael Kammen, professor of history selves have produced; we might at Cornell University, is the author ofA ertheless, that he wrote "in the first have predicted such an outcome Machine That Would Go of Itself: The place, for the law teachers." His after examining the historical pat- Constitution in American Culture (1986), candor does not compensate for his tern of constitutional celebrations. which received the 1987 Francis Park- elitism. In my view, when those man Prize and the 1987 Henry Adams But such intermittent interest does Prize for the most distinguished work of who are best qualified to educate not create a dependably informed American history published in 1986. this Constitution 63 A 297 Why Criticize the Constitution? by DONALD L. ROBINSON

Toward the end of a second conventions that made a Constitu- Besides, revising the structure of chapter of On Liberty, John tion out of the document produced tne Constitution seems virtually im- Stuart Mill considers what hap- in Philadelphia. Their spirits were possible. A single legislative cham- pens to opinions in the absence of quickened by the brand new thing ber in just thirteen of the fifty states discussion. Almostalldoctrines they were causing to happen. As can block any amendment. Itis and creeds, he writes, pass through Madison himself noted with won- almost unimaginable that a serious a cycle. They begin full of meaning der'ew years later, the American structural revision could obtain the and vitality in the hearts of those Constitution was not, like other needed consensus. Thus thinking who originate them and in their constitutions, a grant of liberties by about revision is "academic" in the direct disciples, and they retain that a ruler to the people, but a grant of worst sensea charge against their vitality "so long as the struggle lasts power by the people, creating gov- work to which most academics are to give the doctrine or creed an ernment. John Marshall in1821 particularly sensitive. Why gather ascendency over other creeds." As (Cohens v. Virginia) took this wool thinkingcritical thoughts soon as it prevails, or its progress point a crucial step further when he about the Constitution when there stops, controversy flags, and the wrote that "the people made the is serious politica..ork to do? doctrine takes its comfortable seat Constitution, and the people can There are several answers to as a received opinion. unmake it. It is the creature of their these points. The first comes from At that point, the place of the will and lives only by their will." the example of the framers them- opinion in the lives of its adherents (Compare the words of Charles Ev- selves. They oid not hesitate to un- is transformed. "Instead of being, as ans Hughes, who declared in a dertake their second revolutionary at first, constantly on the alert ei- speech at Elmira, New York, in act in a single generation when they ther to defend themselves against 1908, "We are under a Constitution, perceived that the promise of effec- the world, or to bring the world but the Constitution is what the tive self-government was slipping over to them, they have subsided judges say it is, and the judiciary is away from them. Nor did they into acquiescence, and neither lis- the safeguard of our liberty and of flinch before the odds against suc- ten, when they can help it, to argu- our property under the Constitu- cess. Ratification by allthirteen ments against their creed, nor trou- tion.") states, as required by the Articles of ble dissentients (if there be such) As the American nation has ma- Confederation, was quite simply im- with arguments in its favor. From tured, we have grown timid about possible for so fundamental a revi- this time may usually be dated the criticizing the Constitution. There sion as the leading framers contem- decline in the living power of the are many reasons for this reticence. plated, but they went ahead doctrine." We appreciate the system's great anyway, designing a system that Mill's exampleisChristianity, virtues: its encouragement of gov- conformed as nearly as possible to whose adherents, he says, no longer ernment by discussion; its success the nation's principles and that met accept the ethic of the Sermon on in taking us through past travails; its needs, and trusting that, if they the Mount as a living, compelling the prosperity we have enjoyed and could find real improvements, they imperative, but rather honor it as the progress we have made toward would be able somehow, in due something which "they have always the goals set out in our Declaration course, to summon the political will heard lauded and never discussed." of Independence. We regard the to put them in place. It is, he says, no longer a "living Constitution as "given" to us by a Finally, the best argument for en- belief which regulates conduct." benevolent providence, acting couraging critical constitutional One cannot read this analysis through a generation of demigods, studies is John Stuart Mill's. We without realizing its relevance to and we doubt that we can recreate have departed far from the framers' the doctrines of constitutional lib- the propitious circumstances that design. In the use of "war powers," erty in America. To the founding led to its creation in 1787, beginning in the creation of political parties generation, these doctrines were lit- with a convention that deliberated that monopolize the road to the erally fighting words, well and in secret for almost four months. White House and the procedures of deeply understood, not just by the We fear that, if we countenance the Congress, in the administration of fifty -five framers, but by the many idea of revision, we will open an op - monetary policy by an appointed thousands of farmers, craftsmen portunity for those who want to re agency that exercises fused pow- and small-town lawyers who took peal or destroy those features we re ers, and in countless other ways, we part in town meetings and ratifying gard as most crucial to our way of life. have departed radically from the 64 2;;S this Constitution AO

"Signing of the Constitution,"by Louis S. Gisnzman (center segment). Commissioned by the Pennsylvania, New Jersey, and Delaware State Societies, Daughters of the American Revolution. Photographic reproductions are available from the Eastern National Park and Monument Association, 1400.821-2903. teachings of the men who founded tions about comparative constitu- encouraging a wide-ranging discus- our constitutional tradition. We tional traditions We cannot even sionone that dares t,o be critical. may, in some cases, have improved figure out how to induce our chil- on their work. Still, we are loath to dren to take a lively interest in criticize it explicitly or to suggest constitutional questions. Donald L. Robinson is professor of Gov- that it be revised. The result is that That is the central challenge of ernment at Smith College and author of their principles slumber. We have "To the Best of My Ability": The Presi- this Bicentennial era: to quicken dency and the Constitution.lie was the very little discourse with other na- our faith in constitutional liberty by first director of Project '87 (1977-78). this Constitution 65 " 299 Our Constitutional Future BY JAMES OLIVER HORTON

In the 1983 inaugural issue of this journal, James MacGregor years ago remained central points of concern, although with Burns and Richard B. Morris posed "thirteen crucial ques- additions and revisions. Among these varied, if unrepresenta- tions" which the advisors and participating scholars of Project tive, responses interesting patterns do emerge, which may help '87 identified as central to a discussion of America's Constitu- to provoke fUrther study and discourn. tion during its Bicentennial years. These questions were selected to promote broad ranging inquiry into the issues which National Powers have shaped our present constitutional form over the nineteenth and twentieth lenturies: The single most important issue for those responding over- 1. Are the limits_placed on the federal government's powers lapped several of the thirteen questions. Respondents, obvious- by the Constitution realistic and enforceable? ly influenced by the current political climate, focused on the 2. Is the Constitution maintaining an efficient and realistic balance and control of national power. Of central concern was balance between national and state power? the impact of covert actions, unofficially pursued by agencies 3. Are the courts exercising their powers appropriately as in- of the federal government, on the ability of Congress and the terpreters of the Constitution and shapers of public policy? administration to work as co-equals in shaping of American 4. How can republican government provide for national se- foreign policy. More specifically, many wondered about the ef- curity without endangering civil liberties? fect of such actions on the ability of the branches of the feder- 5. How can republican government protect its citizenry and al government to cooperate in their responsibilities to make yet uphold the rights of the criminally accused? war or to pursue peace. Historian Harold M. Hyman of Rice 6. What kinds of equality are and should be protected by the University spoke for many ien he speculated that "the ques- Constitution and by what means? tions of covert diplomacy and war powers-in an undeclared 7. Does the Constitution adequately protect the rights of war/terrorist situation will redefine the very nature of acounta women? bility." 8. Does the Constitution adequately protect the rights of Several suggested that this question might be addressed blacks, native Americans, ethnic groups, and recent immi- constitutionally. Political scientist Nathan Hackman, of the grants? State University of New York at Binghamton, argued that re- 9. Does the President possess adequate poweror too much cent difficulties in interpreting the War Powers Act and the powerover war making and foreign policy? revelations of CIA and National Security Council "excursions" 10. Does the constitutional separation of powers between into Latin America and the Middle East "suggest a need for the President, the Congress, and the Judiciary crea.e a dead- constitutional tightening." Traditional tensions within the fed. lock in governance? eral government have been and will continue to be complicat- 11. Does the evolving constitutional system, including politi- ed by the technological revolution in weaponry and intelli- cal parties and interest groups, strengthen fair and effective gence gathering which has outpaced the ability of the representation of the people or undermine it? legislative branch to monitor the activities of the executive. 12. Can the Constitution be tailized more effectively to pro- Many, like Joseph F. Wall, historian from Grinnell College, vide economic security and promote the well-being of all are convinced that covert efforts such as those brought to Americans? light during the Iran-Contra hearing will become more difficult 13. Should we make changing cur fundamentrl charter of to control without a clear constitutional ruling on the role and government simpler and more democratic? obligations of each branch of government in prohibiting such During the intervening four years since it. ant Itarance, this private, non-official covert activity. "The concern expressed by Constitution has presented articles addressing these issues Arthur M. Schles;nger,jr., in respect to the 'imperial presiden- both historically and within the context of ccatemporary cy,' and William Fulbright for the 'arrogance of power' " Wall American society. The:, were offered as contributions to the warns, "will not necessarily disappear along with Ronald Rea- ongoing constitutional discussion, quickened and more con- gan from the Oval Office." cretely focused by the Bicentennial celebration. These thirteen questions offered a reasonably broad framework for the cur- Technology rent public conversation on the Constitution; looking toward the future, however, 'ae might wish to reflect on those issues The concern with the difficulties of the balance of power likely to be the approptiate i ,;:stltutional questions for the within the federal government was a corollary of a more en next century. compassing concern with the "technological revolution" cur- in an effort the opinion of a range of American rently underway and assumed to be accelerating in the next scholars cn Project '87 surveyed over four hun- century. Significantly, none of the "thirteen crucial questions" dred social flans, constitutional scholars, and explicitly delineated technolow as a major issue for constitu- political and Mors, asking that the suggest tional debate. Surely technological progress was cause for those questic. be the =dal constitth_onal issues such debate during the first half of the twentieth century, but of the next not.ideu There were one hundred and forty it did not dictate the social and political setting then as it is six repies ranging from cryptic notes to complex essays. The expected to do in the future. Over two-thirds of respondents thirteen crucial questions posed by Burns and Morris five agreed that whatever the individual issues of constitutional de-

this Constitution bate in the next century, the discussion will be cc mplicated by dered, what will be the constitutional meaning of incinadual the explosion of technology in all areas of national and inter- rights when individuals might be Drought into existence national life. through "scientific" rather than biological means? Instant communications and rapid transportation of people and material will continue to bind our national economy and, Equal Protection increasingly, our political policy making to the rest of the world. Indeed, most believed the international setting will be- This latter issue was linked to more conventional concerns come increasingly important for constitutional interpretation. for equal protection of women's rights. Several expressed ap- Thus, the question of constitutional limits on federal power prehension that conservative courts have already shown signs will take on broader implications. of limiting the application of Fourteenth Amendment protec- Beyond the impact of the growing sophistication with which tions in the areas of gender discrimination. The recent admin- society can destroy itself, respondents listed the constitutional istrative court decision involving a suit brought by female questions of privacy which will become far more extensive graduate students against all-male dinner clubs at Princeton than simple wiretapping and video °iv- nation. As the tech- University is viewed as an alarming signal. This decision al- niques for public surveillance improveante raise the spector lowed these clubs to retain their discriminatory policies by of "big brother" while others see the prospect of more effi- dissociating from the university and establishing themselves as cient and more reliable information gathering for critical so- "private clubs" beyond the reach of equal protection require- cial and economic planning. One political scientist, David Ca- ments. puto of Purdue University, worried that "technological Others speculated that such private status would be used to advances [would] make the excesses of '1984' more possible, continue the maintenance of racial and gender discrimination [and would continue and increase thej tensions between indi- and separation. The question of the Supreme Court's ultimate vidual rights and societal authority." Yet, he was also hopeful ruling on public subsidies to private education was seen as a that technological advance would bring the cures and preven- significant issue in this regard. While most believed that gen- tions of disease and addiction. der and racial discrimination would remain important consid- A number of scholars looked at the implications of technol- erations for constitutional interpretation into the next century ogy for the issues of individual rights. Race, gender, and class they seemed to see these issues broadening beyond specific is- issues remain central constitutional concerns but respondents sues of de jure or de facto discrimination common in the suggested that they might be complicated beyond our contem- twentieth century. Increasingly, family violence, child custody, porary understanding by the progress of bio-technology. His- parental responsibilities -u.1 alimony and child support pay- torian Joseph R. Morice of Duquesne University and political ments will be viewed as both racial and gender issues and scientist G. Allan Tarr of Rutgers University were among those they will center the discussions of the rights of black and who suggested that we have only begun to confront the issue white women. The role of government in assuring child care of artificial insemination, organ transplanting, or surrogate par- and medical care will also become a larger issue for constitu- entage as constitutional issues. Although many thought that tional consideration, broadening again issues of the protection abortion would remain a controversial constitutional question of the rights of minorities and women. for the foreseeable future, several also saw euthanasia becom- While some worried about what they percened as the con- ing more a subject of debate. servative agenda of the current Supreme Court, others be- Pushing biology to its contemporary outer limits, there was lieved that despite its ideological right turn in recent years considerable speculation on the constitutional implications of there will be major reinterpretations of constitutional phrasing genetic engineering and the manipulation of human life materi- which will have a liberalizing affect on the application of the al. This concern expands and complicates earlier questions Fourteenth Amendment. Several respondents believed that about constitutional protections of racial and gender rights. there will be a radical reinterpretation of the meaning of the How does constitutional interpretation deal with the questior, term "equal protection" in the coming decades. 'Just as the of the creation of life and the possibility of what political sc_- 1920s and 1950s were each followed by more than a decade of entist Carl P. Chelf of Western Kentucky University referred to extensive liberal reform," political scientist Janet K. Boles, of as a "super race"? Surely within the next decade, the makers Marquette University predicted, "so will the coining century be and the interpreters of national law will be forced to deal with ushered in by a return to concerns with the pervasive inequal- the question of who will be allowed to determine which genes ities among the population based on race, gender, and ethnic- can be distributed to whom and who can make decisions ity?, about the gender selection of un-born children. Boles was but one of a number who believed that we would These issues embrace several individual constitutional con- see a "coming 'egalitarian revolution' [which] will be charac- cerns, including privacy, property, even possibly license and terized by a far greater commitment to group-based, or collec- patent rights. But of equal import are the ethical questions un- tive, equality." In light of affirmative action stands recently re- derlying traditional American attitudes about race, class and affirmed by a more conservative court, she believed that gender. How can the Constitution guide governmental author- constitutional questions of fairness will be informed by the ity in deciding which genes are worthy of preservation, or recognition that "some groups must be treated differently in which should be altered? As a number of respondents won order to be treated equally." Such a reinterpretation would

this Constitution 67 1111. have special significance for efforts to redress imbalances in can "democrats" competed with Russian "communists" for the educational and occupational opportunities and in providing loyalty of the third world, constitutionally-supported racism equal access to health care and other social services to the created an American disadvantage. In a less direct way, Ameri- poor. ca's women's rights movement benefitted from comparisons Many, less optimistic than Boles, feared that the question of with occupational diversity among Soviet women widely tout- equal access could not or would not be successfully addressed ed during the 1950s and 1960s. in the near future. Harry M. Clor, a political scientist from Future interpretations of the Constitution will be rendered Kenyon College, pointed out that in the recent past the Su- in the context of dramatically shifting international relation- preme Court has shown no "coherent philosophy or body of ships. The United States is experiencing unprecedented chal- principles" on the question of how and to whom the principles lenges to its economic and political world dominance. While of affirmative action ought to be applied. He further suggested we have been building our military arsenal to a level the pres- that this dilemma is likely to continue for several decades. ent administration argues is competitive with that of the Sovi- This concern was deepened by others, expressed by Susan et Union, it may well be that our most significant competitor Lesson, of Willamette University for example, that the impact will not challenge with missiles and submarines but with VCRs of a non-expanding "political/economic pie" will intensify de- and compact disks. As the United States finds itself pressed, bate over the meaning of equality and constitutional equal pro- even "outclassed," economically the call by those who demand tection guarantees, making the issues even more politically dif- that American military strength be used to redress the balance ficult. of power may grow louder and more influential. As the eco- There were numerous other concerns more difficult to nomic and political emergence of Japan, Korea, China and oth- group. They covered all the broad areas outlined in the thir- er Asian nations dictate changing international relationships, teen crucial questions suggesting a predictable connection be- Americans will be forced to accept a place of parity among tween the last hundred years and the next. Constitutional the peoples of the world. This task may not be an easy one for readings on criminal rights and a host of civil liberty issues, those used to seeing themselves, their country and their cul- -anging from protection of the right of political protest to aca- ture as superior to the "colored peoples" of the world. Ameri- demic freedom, freedom of the press or other free expression, can reaction may test constitutional restraint on the interna- were seen as continuing questions. There was significant spec- tional use of military force. ulation that church-state separation issues would remain con- Concerns over the increasing difficulty of maintaining a bal- troversial but that the Court's position would not change much ance of power among the branches of the federal government from its current stand which has recently reaffirmed its view take on immense significance under such circumstances. If ad- that the Constitution prohibits state sponsorship of or interfer- ministrative officials can rely on "off the shelf" covert opera- ence ir. religious prayer or other practices. tions to circumvent congressional intent in international weapons trading in the 1980s, what constitutional measures will be International Relations needed to address such actions during the 1990s? Will the Constitution effectively control the temptation of one branch Perhaps more interesting than the specifics of respondent of government to resort to military power in the face of argu- speculation on constitutional issues was the fact that almost ments that American political interests are under attack all such speculation recognized implicitly or explicitly that fu- around the world by foreign economic power? ture interpretations would take place in a world different from As we struggle to sort out the implications of the shifting that which Americans have experienced in the past. The his- balance of international economic power for Amencan consti- torical experience of America has been one of international as-tutional interpretation, the issue of governmental jurisdiction cendancy. Except for a few precarious decades at the begin- over American multi-national corporations will also become ning of our national life, we have been a nation on the rise. As more pressing. In short, the United States Constitution will be our international economic and military strength and influencecalled upon to guide international affairs as never before. grew during the first half of the twentieth century, our international position had a profound effect on our interpretation of Although expertb may be able to see with some clarity the our Constitution. It was no accident that the Supreme Court central constitutional issues of the next decade or so, one is lent constitutional sanctions to white supremacy at home struck by the impossibility of looking beyond that point. Look- while American economic dominance over the colored peoples ing forward from the hot Philadelphia summer in 1787 it of the Caribbean, Latin America and the Pacific was being ra- would have been easier for the prophetic observer to antici- tionalized as aid to our "little brown brothers." pate the consti.. "anal crisis that precipitated a civil war, or The international situation of the mid-twentieth century the constitutional challenge posed by the growth of giant na- made constitutional support of American racism inappropriate tional corporations, than for us to look ahead to the next cen- to the "Cold War" competition. Post 1940s America was no tury. Economic, social and political trends barely visible now longer isolated from the world which was rapidly changing will surely complicate constitutional questions, perhaps be- with the emergence of independent third world nations. When yond our understanding. And of course all this may be hope- the Supreme Court struck down the concept of "separate but lessly complicated by the explosion of a technology that we equal" it was partly an explicit recognition that when Amen- cannot now comprehend.

68 302 this Constitution A.,

Because of its dynamic quality, we can be optimistic that the Constitution will continue to satisfy the needs of our democracy in the twenty-first century. All of our respondents based their assumptions about the future on their faith in constitutional flexibility, echoing Franklin D. Roosevelt's interpretation:, the Constitution was, he said, "so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form."

The author expresses appreciation to Elsie Mosqueda for her valuable data entry assistance and insightful comments on this article.

Project '87 Survey Results No. 146 respondents* 108Distribution of power between branches of the federal government. 97 Technology, including bio-engineering, computers, communications, genetics, and medical technology. 1111111111111111- I 111111 1101110!MI 66 Equal protection under the Fourteenth Amend- ment, including affirmative action, race and gender civil rights, and immigration policy. 61Role of the Supreme Court in constitutional change and selection of justices. Concern about growing politicization of the Court. 53 Concern over economic matters, including feaeral spending levels, the national budget and the national debt. 41Electoral process, including presidential selections and the growing role of political action committees, and the rising cost of political campaigns. A 32 Separation of church and state 25 Environmental issues Most respondents discussed more than one issue, and those issues have been grouped here in a %cry general way to provide a crude indication of the concerns of those who participated.

James Oliver Horton is associate professor of history and Ameri- can civilization, George Washington University; Director of the Afro-American Communities Project at the National Museum of American History of the Smithsonian Institution; co-author with Lois E. Horton of Black Bostonians: Family Life and Community Struggle in an Antebellum City (N.Y., 1979) and co-editor with Steven J. Diner of pilot volumes for City of Magnificent Intentions: A History of the District of Columbia (Washington, D.C., 1983). He is currently writing a history of free blacks in the antebellum North. Independence Hall, Phlladelpi.a, PA.

this Constitution 69 t 303 For the Classroom Affirmative or Negative: THE BAKKE DECISION

This episode, which uses the Bakke decision of 1978 to stimulate student thinking about equal protection of the law, has been edited for inclusion in this Constitution. It is one of 49 historical episodes in Reasoning With Democratic Values: Ethical Problems in United States History written by Alan Lockwood and David Harris and published in 1985 by Teachers College Press, Columbia University. Many of the'ISScieSinvolved constitutional values. Order forms and additional information can be obtained from Teachers College Press, Allan Bakke, top row, second froth left. School of Medicine, Cclumbia University, 1234 Amsterdam Ave., New York, NY 10627; University of California, Davis. (212) 678-3929.

In 1973 Allan Bakke applied to the medical school of the University of California at Davis and was rejected. He decided to try again the following year. He had no idea that his ambition to become a doctor would divide the nation and make hisname a household word. Bakke had attended the University o! Minnesota, where he majored in mechanical engineering and earned just underan A average. To help pay the costs of his college education, he joined the Naval Reserve Officers Training Corps. After graduation he fought as a marine captain in Vietnam. Upon returning to the United States in 1967, Bakke earned a master's degree in engineering at Stanford University.He then took a job as an aerospace engineer at a National Aeronautics and Space Administration (NASA) researchcenter in California. "I don't know anyone brighter or more capable," said his boss at NASA. Married, father of three children, and well paid, lie seemed comfortably set in life. What he really wanted, however, was to become a doctor. So determined was he that he took biology and chemistrycourses required for medical school while working as an engineer. To make up the time missed from his job, he worked earlymornings and evenings. Bakke also worked off-hours as a hospital emergency room volunteer. He took tough assignments working with battered victims of car accidents and fights. He was 33 years old when he finally applied to medical school. All 12 of the schools he applied to, including the University of California at Davis, turned him down. He thought it was because of his age. Some of the schools said hewas too old. Davis had been his first choice, because it was near his suburban San Francisco home. He soon learned that itwas not because of his age that his application to Davis had been rejected. Founded in 1968, the University of California at Davis Medical School had no intent to discriminate against minority applicants. Among the 50 students it, its first class however, none was black, Hispanic, or Native American. To ensure minorityrepre- sentation in future classes, Davis instituted an affirmative action plan that reserved 16 of 100 placesin its entering class for disadvantaged minority students, principally blacks, Chicanos, and Native Americans. Students accepted under the special admissions program had lower grade-point averages (GPA) and admissions testscores than the 84 students accepted under the regular admissions program. In 1973 the average GPA of special admissions students was 2.88 compared with 3.49 for regular students. On the Medical College Admissions Test (MCAT) the average ranking of speL2l admissions studentswas the thirty- fifth percentile, whereas regular students averaged in the eighty-third percentile. GPA and MCATscores, though not the only factors, were the major ones considered in screening applications under the regular admissions program. Because Bakke was white, he was prevented from competing for the 16 places set aside under the special admissionsprogram. His GPA and MCAT scores were higher than those of the students accepted under the special program. On the MCAT he scored in the ninetieth percentile, and his GPA was 3.51. Bakke believed that the special admissionsprogram had kept him out of medical school. In a letter to the chairman of the Davis admissions committee, Bakke expressed his frustration:

I am convinced that a significant fraction of medical school applicants is judged bya separate criteria. I am referring to quotas, open or covert, for racial minorities. I realize that the rationale for these quotas is that they attempt to atone for past racial discrimination, but insisting on a new racial bias in favor of minorities is not a just situation. After being rejected a second time, Bakke filed suit in California court claiming the university had unlawfully discriminated against him on the basis of race. He asked the court to order the university to admit him. Bakke claimed that the Davis special admissions plan was reverse discrimination. His complaint charged that hewas fully qualified for admission and that his application was rejected because of hisrace. He maintained that the university, as a result of its racial quotas, had denied him equal protection of the law as guaranteed by the Fourteenth Amendmentto the Constitution. In response, the university's lawyers argued that the racial classification in thiscase was permitted by law. Unlike illegal classifications of the past that were designed to exclude minorities, the Davis plan, it was claimed, placed minoritiesin a special category in order to include them. According to the university, this was a necessary corrective action to remedy the effects of past discrimination. More specifically, the university presented four reasons to justify its special admissionsprogram.

1. To improve medical education by including men and women from diverse segments of societyin medical school, 2. To reduce separation of minorities from the mainstream of American life by drawing them into the medicalprofession, 3. To provide role models for minority children to demonstrate that there were now opportunitiesopen to them, 4. To improve medical care in seriously underserved minority communities.

70 This Constitution The California court concluded that the program at Davis, by granting preference to minority students, violatedthe equal protection clause of the Fourteenth Amendment. Theprogram was declared illegal. Fearing that the ruling would invalidate all of its affirmative action programs, the university appealed the lower courtdecision to the California Supreme Court. The state's highest court upheld the lower court. It ruled that the Davis program violatedthe constitutional rights of nonminority applicants by grantingpreference on the basis of race. The Constitution, claimed ity of the court, should be color-blind. One member of the major- the court disagreed with the majority decision. He arguedthat it was a sad irony to find the Fourteenth Amendment aimedagainst blacks when its original purpose former slaves. was to provide opportunities for Because a federal constitutional issue was involved in the case, the university could appeal to the U.S. SupremeCourt. In Sep- tember 1976, a final appeal was made to the nation'shighest tribunal. Few Supreme Court debate as Regents of the University of California cases in U.S. history stirred as much v. Allan Bakke. The main issue to be decided was whetherany government agency should be allowed to consider who was black and whowas white in an attempt to overcome past discrimination. On a crisp October morning in 1977, a huge crowd gathered on the Supreme Court plaza in Washington. Theinscription above the monumental columns of the building read, "EqualJustice Under Law." There were differing opinions in thecrowd about just what equal justice required in thecase to be heard that morning. At precisely ten o'clock, nine black-robed justices appeared from behind red velvet curtains and took their seatsat the elevated bench. They were about to hear arguments in whatwas considered the most important civil rights case in a generation. The justices would hear from the University of California's lawyer, Allan Bakke's lawyer, and the solicitor general of theUnit- ed States. The solicitor general is theone who argues the position of the United States government in government has a special interest. cases where the federal First came the university's case. The 16 minority placesat Davis, argued its lawyer, should not be considereda traditional quota. In the past, quotas had been used to limit minorityparticipation, but here they were used to increase it. The university's argument included other points.Color-conscious admissions policies, its lawyer said, minorities fully into the American mainstream. Without were necessary.to bring affirmative action plans, no more than a trickle of minoritystudents would be admitted to professional schools. In addition, argued the university, society benefits from special admissions.Whites and minorities learn from each other, and minority graduatesare m-re likely to practice in minority communities where there is a greater need for medical doctors. Furthermore, merit aloneas reflected by grades andtest scoreshas never been the sole basis of selection for schools. If colleges and universities can select studentson the basis of geography and athletic ability, why not add racial diversity terion for selection, asked the university. as a cri- Next carne the lawyer on behalf of Allan Bakke. He beganby attacking quotas. He said the Davis program useda racial quota that allowed minority students to satisfy lower standardsthan white students. Racial quotas, he claimed, shouldnot be permitted under the Constitution because they grant rightson the basis of ancestry and not on the basis of individual achievement. Bakke's lawyer asked the justices whether there wouldbe any limit on how high the quota couldgo. Could it be set, be wondered, at 32, 64, or even 100? Emphasizing the color-blindness of the Constitution, he argued that quotas should beunconstitu- tional even when minorities benefit from them: "The equalprotection clause does not expand and contract dependingupon the purpose behind racial discrimination." It was not fair, accordingto this argument, for Bakke to be moved to the back of the line because he was white. Bakke's lawyer also pointed out that not all minority students are disadvantaged. There could be affirmative actionprograms that considered hardships faced by applicants, withoutusing race itself as the measure for admissions. The U.S. government's position was presented last to the justices. The solicitor general pointed out that Congress and theexecutive branch have permitted race to be taken intoaccount in other matters. For example, special scholarships for minorities, loans were reserved for minority-owned businesses, were offered and companies with government contractswere required to hire minorities. These were temporary butnecessary steps, he argued, to achieve racial equality. Next, he maintained that the Fourteenth Amendmentprotects all persons without regard to race, but the lingeringconse- quences of past discrimination must be addressed. As he put it: "TheFourteenth Amendment should not only require equality of treatment. but should also permit persons whowere held back to be brought up to the starting line where the opportunity equality will be meaningful." for Finally, the government's lawyer maintained that color-sensitiveprograms were fair. Minority students with lower test and grade-point averages, he said, scores may have as much potential to be physicians as whites with higherscores. The minority students have demonstrated the determination and abilityto overcome hurdles not faced by whites. The justices listened and questioned for two hours.Then they retired for months to reach a decision. Unableto reach agreement, they presented sharply divided opinions. It took 154pages to express them. Four of the justices decided the case on narrow grounds. They did not think the case required a decision basedon the Consti- tution. For them, the laws passed by Congress were sufficient basis for deciding the Bakke case. In the opinion of thesefour justices, the university as a recipient of federal funds had violatedthe Civil Rights Act of 1964. That law prohibitedprograms receiving federal funds from excluding anyoneon account of race. As one justice stated, "Race cannot be the basis of excluding anyone from participation in a federally funded program." They believedthat the special admissions program was urlawful and they wanted Bakke admitted to the medical schoolat Davis. Another four justices voted to uphold the Davis admissionsprogram. They concluded that it violated neither the 1954 Civil Rights Act nor the Fourteenth Amendment to the Constitution. In their opinion, the California Supreme Court shouldbe reversed. To support this view, one of the justices said: "Inorder to get beyond racism, we must first take is no other way. In order to treat some account of race. There persons equally, we must treat them differently. We cannotwe dare notletthe Equal Protection Clause perpetrate racial supremacy." Four justices do not make a majorityon the Supreme Court. A majority of justices is required for the Courtto render a decision in a case. The ninth justice, Lewis Powell, broke thedeadlock. On the issue of Bakke's admission, he voted with the first four justices. On the issue of race-conscious affirmative action he voted with the second four justices. Thecompromise decision ordered Bakke admitted to the Davis medical school butallowed the university to consider race as a factor for admissions. According to the decision, colleges and universitieswere permitted to take an applicant's race into account as longas they did not establish a rigid racial quota. What justified the use of race in college admissions, according to Justice Powell,was educational diversity. He claimed that minorities hadsomething to contribute to higher education. Said the justice, "Itis not too this Constitution 71 much to say that the nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this nation of many peoples." Six years after first applying to the University of California Medical School at Davis, Allan Bakke was admitted. He graduated and became a physician.

The major sources for this story were: Dreyfuss, Joel. The Bakke Case: The Politics of inequality. New York. Harcourt Brace Jovanovich, 1979. Eastland, Terry. Counting by Race. Equality from the Founding Fathers to Bakke and Weber. New York. Bask Books, 1979. Regents of the University of California v. Allan Bakke 438 U.S. 265 (1978). Wilkinson, J. Harvie, III. From Brown to Bakke. New York: Oxford University Press, 1979. ACTIVITIES FOR "AFFIRMATIVE OR NEGATIVE"

Reviewing the Facts of the Case Blacks make up 63 percent of Detroit residents. b. Dade County, Florida, set aside 10 percent of its public 1. Briefly describe the special admissions program at the med- works contracts for minority-owned firms. Blacks make ical school of the University of California at Davis. up 17 percent of the Dade County population. At the 2. What were Allan Bakke's main arguments against the Davis time the new plan took effect, less than 1 percent of special admissions program? county construction contracts were with black-owned 3: What were the major arguments of the university in defense firms. of its special admissions program? c. In 1974, the Kaiser Aluminum Company and the United 4. What were two points made before the Supreme Court by Steelworkers of America voluntarily agreed to a plan. It the solicitor general of the United States in the Bakke case? was designed to increase the number of black workers 5. How did Justice Powell strike a compromise in the Bakke in skilled positions at the Kaiser plant in Gramercy, Lou- decision? isiana. Kaiser had recruited minority applicants for skilled jobs since the plant opened, but few applied. Un- Analyzing Ethical Issues der the plan there was a training program for unskilled Many discrimination cases came before the courts as a re- Kaiser workers. Fifty percent of the training positions sult of the civil rights laws of the 1960s. These cases involved went to blacks and 50 percent to whites. Some of the discrimination on account of age, sex, national origin, race, black workers selected had less seniority (years of and religion. Some of these cases presented situations in experience) than some of the whites rejected. The plan schools, neighborhoods, or work places in which there were was to continue until the percentage of blacks in the few or no minorities. The courts had to determine if minorities skilled work force was roughly equal to the percentage had been excluded intentionally. In other words, was there in- of blacks in the work force of the surrounding area. tent to discriminate? Such intent was sometimes not found. At the medical school of the University of California at Davis, for example, there were few minority students but no intent to Answers for Activities exclude them. Could each situation listed below have occurred if there had OVERVIEW been no intent to discriminate? Why or why not? What evidence would establish an intent to discriminate? Answer these The following section includes suggested answers for the questions for each of the situations. For example. Reviewing the Facts of the Case and the Analyzing Ethical Is- sues activities that follow the episode. In addition, for each A college basketball team is all black. Expressing Your Reasoning question, ideas are presented for Yes, the team could have been all black if blacks were the the teacher to use in facilitating discussion. only or best players who tried out. Evidence of an outstanding white player who tried out Reviewing the Facts of the Case but did not make the team would probably establish intent to discriminate. Following each question is an answer or answers in parentheses that would indicate that students have understood 1. An elementary school is all white. some of the key details of the episode. 2. Only Jewish people live in a large apartment building. 3. All flight attendants working for an airline are female. Analyzing Ethical Issues 4. A trade union has no Hispanic members. 5. A public transportation system has no handicapped riders. Examples of acceptable answers are presented. Students 6. A fast-food restaurant has only teenage employees. may, of course, generate other responses that the teacher may judge to be equally acceptable. In all cases, it is important that Expressing Your Reasoning students be able to explain the reasons for their answers. 1. Should the medical school at the University of California- Expressing Your Reasoning Davis have established its specia; admissions program for disadvantaged minority applicants? Why or why not? The intelligent discussion of different points of view on 2. Affirmative action programs have been adopted in a variety these questions is central to the Reasoning with Democratic of places. State whether or not you think each of the fol- Values curriculum. Over time, such discussions significantly lowing plans is fair. Present reasons for your positions. improve students' ability to express themselves, to recognize a. To correct admitted past discrimination against blacks, the complexity of ethical issues, and to develop carefully rea- the Detroit Police Department adopted a plan to pro- soned and well-defended positions. mote equal numbers of black and vi"..ite officers. The One characteristic of good discussions is the presentation plan involves two separate lists, one for black officers and evaluation of a variety of reasons in support of or in oppo- and the other for white. Promotions to lieutenant are sition to a particular ethical judgment. The discussion leader's made alternately from the two lists. The plan will con- job, in part, is to elicit the reasoning of students. Through dis- tinue until one-half of the police lieutenants are black. cussion, these reasons are examined for their persuasiveness.

72 this Constitution There will be times when students express only a few reasons. (No intent. Transit officials overlooked the special needs of The teacher may then wish to present additional reasons for handicapped riders. Evidence of intent. Facilities for handi- the students to discuss. Thus, after each Expressing Your Rea- capped passengers were removed from the budget.) soning question, some reasons are listed that the teacher may6. A fast-food restaurant has only teenage employees. (No in- present for discussion. The listed reasons are not intended to tent. Only teenagers applied for the jobs. Evidence of in- be the best possible reasons favoring or opposing a particular tent: Adult applicants were not hired.) position. Instead, they reflect a range of possible reasons, some of which students will reject as inadequate justifications.Expressing Your Reasoning In the course of the discussion, students should be asked to 1.Should the medical school at the University of California- explain why they find some reasons persuasive and others in- Davis have established its special admissions program for adequate. disadvantaged minority applicants? (Reasons supporting the Reviewing the Facts of the Case university's special admissions program include: It would help correct past discrimination; it would increase black 1. Briefly describe the special admissions program at the med membership in the medical profession; it might improve ical school of the University of California at Davis. (The Da- medical care in minority communities; it would create a ra- vis special admissions program reserved 16 of 100 places in cial diversity in the medical school; minority applicants its entering medical school class for disadvantaged minority have not had an equal opportunity to compete on admis- students.) sions tests. Reasons opposing the special admissions pro- 2. What were Allan Bakke's main arguments against the Davis gram include: Those admitted under the lower standards of special admissions program? (Bakke claimed the special ad- the special program may be less qualified to practice medi- missions program established an unconstitutional racial cine; race has nothing to do with competence to practice quota and allowed lower entrance standards for minority medicine; the program discriminates against qualified students than for whites.) whites; minorities might come to believe they can succeed 3. What were the major arguments of the university in defense only when given preferential treatment.) of its special admissions program? (The university argued 2.Affirmative action programs have been adopted in a variety that the special admissions program was designed not to of places. State whether or not you think each of the fol- exclude anyone but to include minorities who had been de- lowing plans is fair. Present reasons for your positions. nied admissions in the past. The university also claimed a. The Detroit Police Department adopted a plan to pro- that the special program provided a diverse student body, mote equal numbers of black and white officers. (Rea- reduced segregation of minorities in society, offered role sons supporting and opposing the Detroit Police Depart- models for minority children, and improved medical care in ment affirmative action program are similar to those minority communities.) presented for the Bakke case. In Detroit, however, past 4. What were two points made before the Supreme Court by discrimination against blacks in promotion of police of- the solicitor general of the United States in the Bakke case? ficers was acknowledged by the Police Department. The (The solicitor general argued that the government must Detroit program was upheld by a federal appeals court, sometimes take race into account as a temporary step to and in 1984 the Supreme Court declined to hear an ap- achieve racial equality, that the effects of past discrimina- peal. tion required measures to bring blacks "up to the starting b. Dade County, Florida, set aside 10 percent of its public line," and that some minority students with lower grades works contracts for minority-owned firms. (In 1984, a and test scores may have as much potential to become doc- federal appeals court upheld the Dade County plan. The tors as whites with higher scores.) U.S. Justice Department argued that the Constitution 5. How did Justice Powell strike a compromise in the Bakke gives Congress special powers to fashion remedies for decision? (Under Justice Powell's compromise, the universi- past discrimination, but that state and local govern- ty was ordered to admit Bakke and was permitted to take ments have no authority to award contracts on racial an applicant's race into account so long as a rigid racial classifications. Dade County officials argued that there quota was not established. The justice thereby forged a ma- has been a lack of participation by blacks in the eco- jority decision by taking part of the conflicting opinions of nomic growth of the Miami area. The affirmative action the two disagreeing minorities on the Supreme Court.) plan, they claimed, would correct past and ongoing eco- Analyzing Ethical Issues nomic discrimination against blacks. The affirmative action program was established following civil unrest in Underrepresentation must be the result of intentional dis- the black Liberty City area of Miami. The U.S. Supreme crimination for it to be a violation of the Constitution. A way Court refused to accept the case on appeal. for each situation to have occurred with no intent to discrimi- c. The Kaiser Aluminum Company and the United Steel- nate is presented first. Then, evidence that might establish an workers of America voluntarily agreed to a plan to in- intent to discriminate is presented. crease the number of black workers in skilled positions. (Unlike the other affirmative action programs presented, 1. An elementary school is all white. (No intent: No blacks the Kaiser Aluminum plan in Louisiana involved an lived in the area. Evidence of intent: Blacks and whites agreement between a private corporation and a trade lived near each other but were assigned separate schools.) union. It did not involve government action. The plan 2. Only Jewish people live in a large apartment building. (No was challenged in court by Brian Weber, a white work- intent: Friends and relatives rented in the same building. er, who applied for but was denied a training program Evidence of intent: Apartments were refused to non -Jews for skilled workers. Weber claimed the program unlaw- who wanted to rent.) fully discriminated against him because of his race. We- 3. All flight attendants working for an airline are female. (No ber lost his case. The U.S. Supreme Court found that the intent: No males had applied. Evidence of intent. Applica- Civil Rights Act was intended to improve job opportuni- tions were not accepted from males.) ties for minorities and that it did not prohibit a volun- 4. A trade union has no Hispanic members. (No intent. There tary affirmative action plan designed to eliminate a ra- were no Hispanics holding jobs encompassed by the union. cial imbalance. As students present their own judgments Evidence of intent: Hispanics held the same jobs as union in the affirmative action cases presented, you may want members but were denied union membership.) to ask whether those judgments are based on equal op- 5. A public transportation system has no handicapped riders. portunity, equal treatment, or equal result.)

this Constitution 73 t") Pro/Con: A Single Six-Year Presidential Term:

Pro by CHARLES BARTLETT

It is a bold endeavor to make the case for a change in the Charles Sumner, Sen. George Norris, Sen. Everett Dirksen, and Constitution that has brought us to where we are. But since Sen. Mike Mansfieldto urge adoption of the single six-year human nature stays relentlessly the same, our best hope for term. improving the quality of our society lies in adjustments that Walter Lippmann long ago noted that elected officials tend, promise to make the government more effective, more respon- especially in matters involving foreign policy, "to make the big sive to the broad and basic interests of the people. mistakes that public opinion insists upon." It is reasonable to And while we have 536 elected officials in the federal gov- ascribe much of the tragedy of Vietnam to the anxiety of three ernment, the framers set the three branches in such delicate presidentsJohn Kennedy, Lyndon Johnson, and Richard Nix- balance against each other that the system functions best onto be reelected. The aborted mission to rescue the hos- when the sitting president has managed to establish an empa- tages in Iran, our humiliation in the desert, was clearly attrib- thetic relationship with the people. If this relationship does utable to President Carter's reelection concerns. not exist, the federal government tends to wallow like a rud- Proponents of the change are sometimes charged with want- derless ship. ing to take the president out of politics. Leadership really is So we need to do what we can to enable the president of politics under our system and the single-term president will the United States to be, in Woodrow Wilson's words, "as big a still be earnestly engaged in seeking public and Congressional man as he can be." And respected political leaders, including a support for his policies. He will be a political activist on behalf majority of the past presidents, have been contending for over of moves to improve the state of the nation but he will not be 150 years that we can give our chief executives a better maneuvering for personal advantage. This is why the change chance to be strong, respected leaders with an amendment to will bring him added strength and credibility as a leader. the Constitution that will give them six years to serve and no Some say the reelection campaign is healthy for the presi- more than one term. dent because it exposes him to the people. It can certainly be The four-year term is actually less than that because the dangerous: there have been six armed attacks on presidents in business of government is totally eclipsed in the fourth year, the past 18 years. Security precautions have transformed the and in at least part of the third, by the scramble to determine travelling presidential party into a cocoon in which the presi- who will be the next president. "The next presidential election dent and his aides are virtually sealed as their aircraft shuttles looms always in advance," complained James Russell Lowell from airport to airport. one hundred years ago, "so that we never seem to have an ac- The campaign has become more of an exercise in the over- tual chief executive but a prospective one." simplification of complex issues than a learning experience. Few who have served in government would argue that the And some of these over-simplifications become restraints on four-year term yields a newly-inaugurated president enough the policy options in the second term. It would he hard to ar- time to learn his job and set his policies, to build his asso- gue that the welfare of the nation is advanced by what a presi- ciates into a team, and to earn the confidence of the people. dent learns or says in the course of struggling to be reelected. The latter are inclined, after all, to believe that they live in a It is true instead that many presidents have tended to obscure, time when there are no statesmen, only politicians. When a even to distort the realities of our situation, foreign and do- first-term president attempts to take the issues to them, he mestic, as they take their case to the people. quickly and widely perceived as bent on building a base so Ile Some say Americans should not be denied the right to place can be renominated and reelected. Public skepticis.n leaves anyone they choose in the White House and keep that person him little chance to demonstrate that his great concern is to there as long as they want. But our entire system of govern- promote the people's true interest. ment is a series of restrictions which the people have been It is necessary, John Stuart Mill observed, "to judge political willing to accept in order to secure effective and just manage- institutions by their effect upon human character." The pre- ment of their affairs. sent system compels the first-term president to behave as if he "I readily engage with you in the arduous but pleasing task were Still in pursuit of the office. And the odds are that he is of attempting to make a nation happy," President George as Teddy Roosevelt observed, "any strong man fit to be Presi- Washington told the senators in his first official meeting with dent" will inevitably want the honor of a second term. And in them in 1789. A great problem with first-term presidents is the case of most first-term presidents (not all), the pursuit of that they give the people what they want to make them happy the second term has become a diverting preoccupation. but they can put off the real solution to problems, the ones This preoccupation is, as Grover Cleveland described it, "a that require sacrifice, until after they have been reelected. most serious danger to that calm, deliberate, and intelligent These are days in which we need leadership with a long, political action which must characterize a government by the steady perspective. We need presidents who can, by being people." The British purist, Lord Bryce, said the preoccupationcredible and forthright, assist the people in thinking through tempts presidents to maneuver for renomination by "pander- the dilemmas of the time. We will have far better hopes of se- ing" to the active elements of their parties. curing this kind of leadership if we rescue our presidents from The preoccupation invariably diminishes the quality of presi- the reelection fever that pervades Washington at all times. dential leadership and the resulting policy aberrations have caused great men of the pastChief Justice John Marshall, Sen. Harry Clay, Sen. Ben Wade, Sen. Thomas Benton, Sen. Charles Bartlett is the president of the Jefferson Foundation.

74 this Constitution is preferable to have a president be guidedby voters' appraisal at the end of four years than by whata president alone thinks is best or by what he alone thinks willmake him look good in the history texts. The accountabilityof the four-year election cycle forces presidents to achievetheir most salient campaign promises. In a sense, our current system isan action-forcing process. It is a mid-term audit permitting thev,....ers to judge whether a president has livedup to what he said he would do. Con Under a six-year term, Lyndon Johnsonmight have continued by THOMAS E. CRONIN to escalate the Vietnam War until 1970.Under a six-year term, Richard Nixon might have lefttroops in Vietnam until 1974 rather than 1972. And as Arthur Schlesingerwrites, "The nation saw the tempering effect of thedesire for reelection on President Reagan in 1984. He dropped Our four-year term for presidents has served his earlier talk about us remarkably the 'evil empire,' announceda heretofore concealed passion well. American voters have by and largemade prudent for arms control, slowed down the decisions every four years. It's good for movement toward interven- presidents, and for the tion in Central America, affirmed his general public, that after three anda half years, presidents are loyalty to social security forced to get out of the White House and the safety net and in otherways moderated his ideological and listen to real people positions." Under a six-year term, presidents and hear about their concerns, wantsand aspirations for the might become re- Republic. The controversial constitutional moved from the public just asmany U.S. senators who seem amendment for a to forget whom they are representing. lengthened presidential term wouldcreate more problems than it would solve and should be rejected. Fifth, those who favor the six-yearterm do so in the vain First, a six-year nonrenewable hope we can remove the Americanpresidency from politics. term would give us two more Yet the presidency is a political position years of the "ch...ikers" or two years less of thetruly outstand- and presidents at ing presidents. Do we really their best have to be shrewd politicians.Many of the support- want two years more of the Har- ers of the single term dislike the rough and tumble dings, Pierces, and Buchanans andtwo years less of the Wash- of contem- ingtons, Roosevelts, and Eisenhowers? Our porary American interest-group politics. Theyalso seem to dis- present system trust the American voter. But politics in this provides for getting rid of ineffectivepresidents at the end of country has four years. always been a rough, demanding profesSion.Thus, presidents have to be politicians. To ask Second, four years is long enough for a president to rise above politics the American voter to is like asking a bishop or rabbi torise above religion. decide whether a president is doing thejob and if the incum- The idea of trying to elect bent deserves reelection or rejection.Supporters of the six- a nonpartisan national "city manager" is an illusion. A president hasto be a party leader, has to year term say presidents need more time toprocess their poli- be concerned with forming majorities. cies. Sweeping policy changes, to besure, may take four years He should rightly be or even longer, yet four years is enough time for concerned with the possibilities of beingreelected or turned a president to out of office. Presidents must always be mindful demonstrate initial successor to persuade the public of the that this is a democratic Republic and that ultimatelythey must be account- merits of key policies. Lincoln, FDR andReagan, for example, all were able to make their able to majority approvaland this isprecisely what the hope case before the fourth November of reeligibility helps to achieve. Reelection rolled around. Voters don't demandinstant results. But surely, or defeat is a principal tool for keeping elected executiveofficials in touch with near the end of the fourth year, majorprogram initiatives of a the people. first-term president should be ableto stand the test of close Finally, it is profoundly anti-democratic voter evaluation. The six-year term wouldrelease presidents and undesirable to limit the discretion of the votersto choose who will rule them from the desirable test of submitting theirrecords to the voters. or represent them. In a system of limitedpowers an arbitrary tenure limitation is an imprudent Third, a president can seek reelection and way to limit power. Let the still be a creative, voters judge the ability of all our available effective fulltime president. If Lincoln couldrun again in 1864 candidates for ex- and Roosevelt in 1944, other presidents ecutive office including the incumbent.Imposing a restriction should also be able to on the freedom to reelect a president is to violate face the voters. Frankly, the bestway to campaign for reelec- an essential tion is to be a first-rate problem-solving principle of democracy, namely thatvoters have the right to president--doing the exercise a free and uncensored ballot. job, setting the directions, and shaping new policy strategies to The Constitution should be amended only the best of one's ability. The Americanvoter can usually de- when there is clear and compelling evidenceour Republic would be signifi- tect the phony or the misfit in the White House.They can usually judge whom to keep and whom cantly improved by the proposed change.The notion that the to turn out of office. six-year nonrenewable term for presidents If a president is doing the job reasonablywell, and if there would provide us with the leadership and governancewe now lack is a suspect is no challenger on the scene who looksbetter, the American people will usually return the incumbent notion. Plainly, the arms race, tension withthe Soviets, trade to office. If, however, imbalances, and soaring deficitsare the product of deficien- the incumbent is failing to make theoffice work properly, people will question the performance and cies in political leadership or politicaltheories. These conflicts reject the incumbent. are not deficiencies of governmental structure. If The important point is thata president doesn't have to cam- most of these problems would continue undera six-year term, will the paign in every precinct. Presidents don'thave to spend 20 or advocates of a lengthened presidential 30 percent of their precious timebeing a candidate. That argu- term be back a few years later advocating yet another constitutionalamendment ment is spurious. An effective president, whois doing the right for an eight- or nine-year term? things, needs only report to the nation andperhaps make a few swings around the major regions of The framers were right when they dismissedthe idea of a the country. Televi- single lengthy term. Four years isa long time. Let's remember sion has helped tremendously toovercome the difficulty of one of the oldest sayings in American folklore:If it ain't broke, communicating with the voters. Televisionallows a president don't fix it. to report directly to the "stockholders" of thenation. Fourth, presidents should be guidedby how the voters will judge them at the next election. Supporters of the six year sin- Thomas E. Cronin is the McHugh Distinguished gle term somehow think this isimproper. In most instances, it Professor of American Institutions and Leadershipat The Colorado College. this ConstItegm 9 75 VA-,,k71"..", 160-1,a The Genesis of Project'87 by RICHARD B. MORRIS

Theinitiative to sponsor a comprehensive reassessment of the American political system during the era of the Consti- tution's Bicentennial came from a proposal in March 1976 by James MacGregor Burns, then president of the American Polit- ical Science Association, adopted by a committee of the APSA chaired by Harold Lasswell. Recognizing the need to incorpo rate history into such a reassessment, Burns approached the present writer, at the time president of the American Histori- cal Association, suggesting a collaborative effort. Both association presidents had been actively involved in the scholarly side of the commemoration of the Bicentennial of the American Revolution. Both shared a sense of disappointment at the missed opportunities of that celebration. The tallshipswere as a spectacle magnificent, and a deserving worldwide salute, but they did not convey to the American people the seminal contributions of the American Revolution. The word "revolution" was scrupulously avoided; while the Declaration of Independence was a focus of emphasis, the principle of equality explicit therein mysteriously disappeared. Instead, commercial exploitation vulgarized what should have been a great historic occasion. The American Revolution Bicentennial as celebrated did not pose issues that involved the citizenry; theConstitution, on the other hand, in 1976 was already the subject of sharp contention over its interpretation and enforcement. The pathmaking decisions of the Warren Court involving civil rights, privacy, racial discrimination, reapportionment, and subsequent rulings concerning church-state relations and abortion, not to speak of the shadow cast by the Watergate scandal, raised major questions about the federal government's enlarged role under the Constitution. Already a movement was underway for a second constitutional convention. Following a discussion in April 1976 the presidents of the two associations recommended to their respective councils a proposal for an interdisciplinary examination of the American political system, one which would take advantage of the ten- "The Signing of the Constitution," 26' high In bronze by Dennis Smith. year lead time before the Bicentennial to implement a rigor- For information, call 801. 756.0333. ous, realistic, and constructive program in order to promote citizen education and nationwide discourse. Upon receiving the approval and sponsorship of the respective councils, in- Council of the Thirteen Original States Fund, Inc. cluding authorization to secure funding, Project '87 was born. Detailed planning was the basis of discussion on December A series of meetings were then initiated, beginning with one 28,1976, during the AKA annual meeting, where additional on July 27,1976, at Columbia University, to prepare aproposal participants included Betty Glad and A.E. Dick Howard, with for several foundations. Attending the preliminary meeting, in Evron M. Kirkpatrick and Mack Thompson, directors of the addition to the two :ssociation presidents, were Benjamin R. two sponsoring associations, cti Oki°. Consideration was giv- Barber and Robert Curvin, representing APSA, and Patricia U. en to the operation of Project '87 as anindependent program. Bonomi and Michael Kammen, the AHA; also Ene Sirvet, asso- At a luncheon meeting at the Woodrow Wilson International ciate editor of The Papers of John Jay, whose counsel, initia- Center for Scholars, Smithsonian Institution, with Burns pretive, and organizing efforts greatly benefited the project. A pro- siding, the Center's director, James II. Billington, and his col- posal hammered out at that session for a one-year planning leagues joined the discussion in exploring possibilities of a co- period was followed by a two -day "brainstorming session" on operative effort in areas of common interest. October 1-2 with several working papers commissioned. Pre- In the weeks that followed, it was agreed that the two asso- sent there, in addition to the above named, were Walter Dean ciations would assume sponsorship of the endeavor and that Burnham, Samuel P. Hays, Herbert A. Johnson, and William E. operations would come Linde' the direction of a Joint Commit- Leuchtenburg. A one-year feasibility study was supported by tee, co-chaired by Burns and Morris, with six members each to an initial grant from the Ford Foundation and the Andrew\V. be appointed ty the two association councils, Many eminent Mellon Foundation, with a supplement from the Bicentennial scholars have served on a rotating basis on the Joint Commit-

310 this Constitution 76 in tee, and still others have been drawn upon for consultation, and critical problems concerning the contemporary function- with special thanks due to the unflagging support of Ambassa- ing of the federal system were probed. The latter two confer- dor Samuel R. Gammon of the ABA and Thomas Mann, until ,:nces, it should be noted, were accompanied by public forums recently executive director of APSA. To enlarge the reach and (videotaped for future distribution), sponsored jointly by the to profit from the learning of members of the bar and other League of Women Voters Education Fund. public personages, a distinguished forty-member Advisory A highlight of Project '87's program has been teacher educa- Board was established, headed throughout the project by the tion, including a highly successful series of summer seminars Chief Justice of the United States, Warren E. Burger (nowre- for college teachers and the James Madison Fellowship Pro- tired, serving as chairman of the national Commissionon the gram for high school teachers. In recognition of their outstand- Bicentennial of the United States Constitution). ing qualifications, Madison fellows are chosen to attend sum- To initiate the program, in 1977 Donald Allen Robinson of mer institutes where they have an opportunity to enhance SntA College was recruited to serve as its director. Ilewas their own education on constitutional studies and to learn followed for two years by Francis C. Rosenberger, former about new and proven teaching techniques; they then return to chief counsel of the U.S. Senate's Committeeon the Judiciary. their communities where they provide leadership on a variety Since 1980, Dr. Sheilah Mann has provided imaginative and of school and community activities in honor of the Bicentenni- spirited direction. Dr. Cynthia Harrison has servedas both al. In 1988, the Commission on the Bicentennial of the United deputy director and as editor of this Constitution (launched States Constitution is providing support for a class of fellows. September, 1983), a quarterly published with the assistance of Because it provides a benefit to teachers, students and com- the National Endowment for the Humanities. In addition to munities, the co-chairs of Project '87 hope that private or gov- grants from the NEH, the achievements of Project '87 have ernmental agencies will continue to extend this solid and valu- been made possible by generous funding from the Andrew W. able effort. Mellon Foundation, the Ford Foundation, the Rockefeller Project '87's educational reach has been extended by Les- Foundation, the Lilly Endowment, Inc., of Indianapolis, Indi- sons on the Constitution, curriculum materials by John J. Pat- ana, the CSX Corporation, the Exxon Education Foundation, rick and Richard C. Remy. The poster exhibit on the American and the A.T. &.T. Foundation, with core support from the Wil- founding, enZitled "The Blessings of Liberty," expertly directed liam and Flora Hewlett Foundation. by Joan II. Challinor, r^presented a signal success. The program of Project '87 was conceived ofas three dis During its decadelong history, Project '87 never ventured to fillet but interrelated stages: the first three years to be devoted rewrite the Constitution nor to impose a monolithic interpreta- to fellowships and grants for independent researchon consti- tion of its critical issues upon the public. One could notex- tutional subjects; the second stage to advancing the instruc- pect conformity among scholars of standing and decidedly di- tion of the Constitution in the field of education; and the third verse views, even if such an idea had been tolerated. Project to engaging the public in discourse about the Constitution. As '87 did, however, assert a leadership role in having its repre- an intellectual framework, the project has kept the focus on sentatives testify before appropriate committees of the House "Thirteen Enduring Constitutional Issues," drafted in consulta- and Senate on three different occasions on the need to estab- tion with a broad spectrum of historians, political scientists, lish a federal presence in the conunemoration. and lawyers. The Constitution's I3icentennial has benefited by a rigorous The skillful direction of Sheilah Mann gave the project force scrutiny of that great charter; Project '87's efforts and like- and momentum necessary to achieve the numerous accom- minded programs throughout the nation offered many opportu- plishments of the decade Project '87's program included six nities for thoughtful discussion. As Project '87 has ended, the conferences and numerous sponsored articles focused on the Iran-Contra affair, the debate in the legislative branch over the enduring constitutional issues. In addition, fifty-one research deficit, and the charged discourse about the role of the judicial grants and fellowships were awarded, a considerable number branch emerging in the hearings on the nomination of Robert of which resulted in books and articles. Following the inaugu- Bork to the Supreme Court have prompted wide analysis of ral conference in September 1978, climaxed by a dinner meet- and argument over constitutional principles. If Project '87 has ing co-sponsored by the Friends of Independence National contributed even in a modest way to enhancing public under- Historical Park arid addressed by Senator Edward M. Kennedy, standing about the Constitution and the way it works, then all five other conferences were held: one at the Federal Judicial those who have participated in this venture merit the heartfelt Center in Washington, DC, with a dinner at the Supreme Court thanks of its co-chairs. As a model of non-governmental initia- hosted by the Chief Justice and others at Research Triangle tive to explore the Constitution's significance and provide a Park, North Carolina; at Bloomington, Indiana; at I louston, scholarly reach to the public, Project '87 might well afford an Texas; and at Williamsburg, Virginia. Two of the mostmean- example for closely contemporary Bicentennial occasions ingful conferences occurred in 1987: the first at Philadelphia the ratification of the Constitution, the establishment of the on the anniversary of the opening of the Constitutional Con- national government, and the adoption of the Bill of Rights. vention and devoted to the problem of the Constitution and the Courts, and the second at Williamsburg, Virginia, in Octo- Richard 13:Morris is Gouverneur Morris professor of American ber, dealing broadly with "Mr. Madison's Constitution." During history emeritus at Columbia University, editor of The l'apers three crammed days at the latter, unsettled issueswere raised of John Jay and co-chair of Project '87. this Constitution 77 Bicentennial Gazette

Resource Update

Educational Materials IPIC'ATION OF THE CONSTITUTION OF THE UNITED STATES. Trustees of the Public Library of the City of Boston CELEBRATING THE CONSTITUTION: A TEACHER'S .(MassadlItseg GUIDE (updated). Books, map, biography cards, documents, posters: $23.00. Friends o; Independence National Historical STEVENS, RICHARD G. FRANKFURTER AND DUI; Park, 313 Walnut Street, Philadelphia, PA 19106; 1- 800 -821- PROCESS. University Press of America, 4720 I3oston Way, 2903. Lanham, MD 20706; 301 - 459- 3366.269 pp. $28.00. LESSONS ON THE NORTHWEST ORDINANCE OF 1787: Television, Video Cassettes LEARNING MATERIALS FOR SECONDARY SCHOOL COURSES IN AMERICAN HISTORY, GOVERNMENT, THE CONSTITUTION PROJECT, a series of seven one AND CIVICS by John J. Patrick. Nine lessons, 15 documents hour television programs produced with WIIVY Tele% 1S1011. The and a bibliography. Indiana Committee for the humanities, Conaitution Project, P.O. Box 1787, Portland, OR 97207, 503- 1500 North Delaware Street, Indianapolis, IN 46202. 84 pp. 224 -6722. $10.00. COVENANT: PEOPLE OF THE LIVING LAW, documenta- OUR UNITED STATES CONSTITUTION, Reproducible mary on two systems of law. the Halakah of the Jewish people terials for upper elementary schools by Denee Corbin and and the United States Constitution. Dept. of Radio and Televi- Frederick Drake. One hundred eleven pages of lessons with sion, Jewish Theological Seminary of America, 3080 Broadway, student worksheets. Order from Perfection Form Company, NY, NY 10027; 212 - 678.8020. 1000 N. 2nd Avenue, Logan, IA 51546; 1-800.831-4190. $8.95. Product no. 72457. PORTRAITS OF JUSTICE: MINNESOTA'S FEDERAL DISTRICT COURT JUDGES, 60-minute videotape of inter- TEACHING ABOUT THE CONSTITUTION, NCSS Henn views with ten former and sitting judgz.,. Intermedia Arts Min- No. 80. Clair W. Keller and Denny Schillings, ed. National nesota, 425 Ontario Street, S.E., Minneapolis, MN 55414, 612- Council for the Social Studies, 3501 Newark Street, N.W., 627 -4444. Washington, D.C. 20016. 122 pp. Touring Plays A YOUNG CITIZEIVS GUIDE TO THE UNITED STATES CONSTITUTION, by Helen IL Carey and .Judith E. Green- THE POLITICIAN OUT- WITTED: THE CONSTITUTION- berg. The New York Times Company, 229 West 43rd Street, AL DEBATE ON STAGE (a 1788 play by Samuel Low). Pro- NY, NY 10036. duced by The East Lynne Company, Inc., 281 Lincoln Avenue, Secaucus, NJ 07094; (201) 863.6436. Books Computer Software CONLEY, PATriICK T. FIRST IN WAR, LAST IN PEACE: "RHODE ISLAND AND THE CONSTITUTION, 1:86-1790. THE CONSTITUTION PAPERS, an electronic compendium Rhode Island Bicentennial Foundation, I3ristol County Court of 45 historical documents. Electron.. Text Corporation, Dept. house, 240 High Street, I3ristol, RI 02809, 401-253-1787. D, 5600 N. University Avenue, Provo, UT 84604, 801-226.0616.

HEPBURN, MARY A., ED. CONSTITUTION 200: A BICEN- TENNIAL COLLECTION OF ESSAYS. Carl Vinson Institute Washington, D.C., 1850. Library of Congress. of Government, Terrell Hall, University of Georgia, Athens, GA 30602.

KUKLA, JON, ED. THE BILL OF RIGHTS: A LIVELY HERITAGE. Virginia State Library, Richmond, VA 23219-3491. 1,14..r 7,47let-, $25.00.

LERNER, riA:.,PH. THE THINKING REVOLUTIONARY: 10, PRINCIPLE AND PRACTICE IN THE NEW REPUBLIC. TO; Cornell University Press, 124 Roberts Place, P. 0. Box 250, Ith- aca, NY 14851; 607 -257 - 7000.256 pp. $24.95. -w--s LOSS, RICHARD, ED. CORIVIN ON THE CONSTITUTION; !, d VOLUME III: THE JUDICIARY. Cornell University Press, :11_ 124 Roberts Place, P. 0. Box 250, Ithaca, NY 14851; 607 -257- Lill'tin! W lir 7000.

O'CONNOR, THOMAS H. AND ROGERS, ALAN. THIS MO- MENTOUS AFFAIR: MASSACHUSETTS AND THE RAT-

71 312: this aistitution Bicentennial Programs Project '87 at Columbia University and

One of several major commemorations at Columbia The League of WomenVoters University of the 200th anniversary of thefederal Education Fund Constitution was the special three-monthexhibition, "Columbiana and the Establishment of theFederal Con- Constitutional Forums stitution, 1781-1791," in the Rare Book andManuscript Library. Drawn entirely from the University's collections, 1987, with the support of the FordFoundation, the the items on view includedrare manuscripts, diaries, let- League of Women Voters Education Fundand Project terbooks, documents, pamphlets,broadsides, maps, '87 held two Constitutional Forums newspapers, portraits, miniatures, sculpture, engravings, to honor the Bicen- and books. The exhibit examined the tennial of the Constitution. The first forum,entitled "The contributions of Constitution and the Courts: Text, Original seven notable lawyers connected with Columbiagradu- Intent and the Changing Social Order," was moderatedby Sander ates Gouverneur Morris, Robert R. Livingston,Egbert Vanocur of ABC News. The panelists Benson, Richard liaison, John Jay, Alexander were the Honor- Hamilton, able Robert H. Bork, Judge, United StatesCourt of Ap- and the third president of Columbia, WilliamSamuel peals for the District of Columbia; the Johnsonto the building of an American Honorable Patri- nation and cia M. Wald, Chief Judge, United StatesCourt of Appeals government. The exhibit documented thatat least one of for the District of Columbia; the Honorable these men was present atevery significant juncture in Shirley S. Abrahamson, Justice, State Supreme Courtof Wisconsin; the process of nation-building andConstitution-making and Dr. Jack W. Peltason, Chancellor, Universityof Cali- that resulted in the establishment ofa strong and flexi- fornia, Irvine. ble system of government. The second forum, entitled "Mr. Madison'sConstitu- At the University's Gino SperanzaLectures on October tion and the Twenty-First Century," 8, three nationally prominent scholars was moderated by spoke on "Co lum- Cokie Roberts of National Public Radio. The bians as Chief .lustices: John Jay, Charles panelists Evans Hughes, were The Honorable Shirley M. Ilufstedler, of and Harlan Fiske Stone." Speakingon Jay was Richard Hufstedler, Miller, Carlson & Beardsley, Los Angeles;Hedrick Smith, B. Morris, Gouverneur Morris ProfessorEmeritus of His- tory and editor of The Papers of John Jay Chief Washington Correspondent for TheNew York at Columbia; Times Magazine; Austin Ranney, Chairman, speaking on Hughes was Paul A. Freund,Carl M. Loeb Department of Political Science, University of California,Berkeley; University Professor Emeritus at Harvard; andspeaking and Eddie Williams, President, .Joint Centerfor Political on Stone was Herbert Wechsler, Harlan Fiske StonePro- Studies, Washington, D.C. fessor Emeritus of Constitutional Law and Special Lec- Videocassettes of the two forumsare available from turer at the Columbia Law School. ActingProvost Fritz Stern opened the symposium; I3arbara Project '87, 1527 New Hampshire Avenue,N.W., Wash- Aronstein Black, ington, D.C. (Half-inch VHS cassettes, $35; Dean of the School of Law, servedas moderator. Com- three-quarter inch, 350; orders must be prepaid.) Eachcassette is ac- mentators were Wilfred Feinberg, Chief Juk:ge ofthe companied by a discussion guide, available US. Court of Appeals, Second Circuit, andWalter Gen- separately from the League of Women Voters EducationFund, 1730 horn, University Professor Emeritus,Columbia Universi- M Street N.W., Washington, D.C. 20036($1.75; $1.26 to ty. members).

Constitution Day September 17, 1987

The Bicentennial of the day the FederalConvention adopted the Constitution was observed incommuni- ties all across the United Statesas well as in Washing- ..,.ectITI Nat ton, D.C. and Philadelphia, site of the Convention. - III4, dej More than 100,000 people gathered .CI on the Mall in ., 0 44. Washington, D.C., on the eve of ConstitutionDay, Sep- wome 4, ltil; tember 16, 1987, for the nationally-televised wt. III, "Celebration 0.1 ... of Citizenship" sponsored by theCommission on the Bi- .0"100.1010 44.41114., centennial of the United States Constitutionand 25,000 oroad4HI0 visitors viewed the four pages of theConstitution in an NtW 87-itnurvigil, from September 13to September 17, at the National Archives Rotunda, also in Washington. In Philadelphia on September 17,16,000 participants joined the "Grand Federal Procession,"a parade of thirty floats and twenty-five bands. At 4p.m., a national and international bell-ringing ceremony markedthe hour the Constitution was s;gned.

this Constitution 313' 79 Mr. Madison's Constitution and the Twenty-First Century

With the support of a grant frcm the CSX Corpora- tion, Project '81 held its final conference in Wil- liamsburg, Virginia in October 1087, cosponsored by the Virginia Commission on the Bicentennial of the United States Constitution. For three days, participants at the National Center for State Courts examined the design of the government and the issues of governance that this country will confront in the coming decades. The following scholars led specific discussions: Robert A. Dahl (Yale University)The Design of Na- tional Government: Separation of Powers Elinor Ostrom (Indiana University)The Design of National Government: Federalism Kay Lawson (San Francisco State University) Orga- nizing the Electorate: Districts, Pizties, Campaigns Leon D. Epstein (University of Wisconsin, Madison) Organizing the Government: Political Parties Thomas E. Cronin (Colorado College)Congress and the Presidency Walter Berns (Georgetown University)The Indepen- dent Judiciary Otis L. Graham (University of North Carolina)Con- stitutional Change James MacGregor Burns (Williams c,ollege)Commo'n Concerns Panelists included Herman Be lz (University of vary- land), Roger Davidson (University of Maryland), Martha Derthick (University of Virginia), I.M. Destler (Institute for International Economics), Matthew ((olden, Jr. (Uni- versity of Virginia), A. E. Dick Howard (University of Vir- ginia), Richard B. Morris (Columbia University), Austin Ranney (University of California, Berkeley), Donald L. Robinson (Smith College), Arthur Schlesinger, jr. (City University of New York), Hedrick Smith (New York TimesMagazine),James L. Sundquist (Brookings Insti- tution). Two public events accompanied the conference: a 1 constitutional forum on the same subject, cosponsored with the League of Women Voters Education Fund and supported by the Ford Foundation and a special lecture by Arthur Schlesinger jr. entitled -Two Cheers for the Separation of Poweis." Both events took place at the College of William and Mary.

Chronology emitinuedfrominside frontcorer

June 7, 1790: Rhode Island ratifies the Bill of November 3, 1791: Vermont ratifies the Bill of Rights. Rights. July 16, 1790: George Washington signs legisla- December 15, 1791: Virginia ratifies the Bill of tion selecting the District of Columbia as the per- Rights, making it part of the United States Consti- manent national capital, to be occupied in 1800. tution. Philadelphia will house the government in the intervening decade. Three of the original thirteen states did not ratify December 6, 1790: All three branches of govern- the Bill of Rights until the 150th anniversary of ment assemble in Philadelphia. its submission to the states. Massachusetts ratified on March 2, 1939; Georgia on March 18, January 10, 1791: Vermont ratifies the Constitu- 1939; and Connecticut on April 1939. tion. March 4, 1791: Vermont is admitted to the Union as the fourteenth state.

31. this Constitution so * FROM PROJECT 87 .t,J Celebrate Your Constitution!

Celebrate THE BLESSINGS OF LIBERTY and the Bicentennial of the United States Constitution witha poster exhibit that tells the story of the American founding. The exhibit has received official recognition by the Commission on the Bicentennial of the United States Constitution. These 12 full color posters, each 22"x36',' attract the attention of viewers, who learn about constitutional principles through vivid graphics accentuated by brief, carefully craftedtexts. THE BLESSINGS OF LIBERTY conveys inforthation and inspires further inquiry. The poster exhibit comes with a User's Guide, which features an essay describing the events, ideas and leaders pictured in the posters, separate lessons for students in grades 4-6, 7-9, and 10-12, and other essays and bibliographies. The posters are available unmounted oron a sturdy cardboard mounting system 6' tall, charcoal gray, and foldable for reshipment. The poster exhibit can be displayed effectively in libraries, civic centers, businesses, schools or courthouses.

Exhibits are sold only in complete sets of twelve posters. Individual posters are not available for purchase. PRICES:

UNMOUNTED: $70.00 per exhibit MOUNTED: $11C.00 per exhibit

ADDITIONAL COPIES OF THE USER'S GUIDE: $4.00 each

Additional shipping charges for orders sent to cities not served by UPS. Alaska. Hawaii. foreign countries. and APO & FPO according to distance and weight.

Orders must he prepaid; purchase orders will not he accepted. All orders should he sent and made payable to: Project '87 THE BI.ESSINGS OF LIBERTY, 1527 Poster Titles: New Hampshire Ave., NW. Washington, D.C. 20036. The Blessings of Liberty Quantity Unit Price The Articles of Confederal; a Total A "Less Perfect" Union, 1781-1788 Unmounted Exhibits The Constitutional Convention Mounted Exhibits The Founders' Achievement The Anti-Federalist Argument Additional User's Guides Ratification GRAND TOTAI The Bill of Rights SI lIP TO: A City Plan for the Constitution Name The Principle of Federalism Organization The Supreme Law of the Land lb Ourselves and Our Posterity Address City ' tate Zip

this Constitution 3 1.5 81 Discussion leaders, teachers, librarians, researchers. . .

CQ took lots of liberties...and put them into these lc ming kits Bill' Of Rights Kit

0 ur newest learning kit has everything you'll need to understand or explain the Bill of Rights. The kit's documents, essays, illustrations, test and discussion questions, and other idea-sparkers make understanding the Bill of Rights fun and easy. this Constitution: From Ratification to the Bill of Rights a second collection of essays from this Constitution, Project '87's quarterly magazine. It focuses on the original Bill of Rights and later amendments and laws that expanded individual freedoms. their adoption in the Constitution, public opinion on rights issues, with two reproducible quizzes. The Supreme Court and Individual Rights,2nd ed., a :350.page paperback, describes the Court's decisions regarding Bill of Rights Posterreproduces text of the original ten due process, equal protection. freedom of expression and amendments. Pen-and-ink illustrations enhance interest and political participation. understanding of basic rights. (One of 12 posters in The Bless- ings of Liberty, an exhibit that tells the story of the U.S. Lessons on the Bill of Rights: A Teacher's Constitution. Exhibit information available from Project '87, Supplementcovers early debates on protections of liberties, Washington. D.C. 202-483-2512.)

Coinstitution .Fact Kit

this Constitution: Our Enduring Legacyis a selection of gValles.levones on the Road to the U.S onginnion essays on major constitutional issues from this Constitution, Project '87's magazine. The book is organized and indexed as a principal resource for general readers about our Constitution.

CQ's Guide to the Constitution,a handy, cross-referenced guide to every topic mentioned in the Constitution and Bill of Rights, plus the entire texts.

"Parchment" replicas,full size, of the Constitution and the Bill of Rights.

Milestones on the Road to the Constitution,a 27" x 18" 3-color PostereferencetM showing the key events on America's road to democracy.

Constitution Quiz,30 questions and answers based on the Thousands of these kits have been used for class projects, Kit materials. displays, discussion groups. debates, essays, dramatizations and other activities to make the Constitution come alive. PostereferencesTm is a trademark of Congresmonal Quarterly Inc.

o Yes. Send me CQ's Bill of Rights Kits at $.49.00 each (0-87187-469-586) o Yes. Send me CQ's Constitution Fact Kit at $35.00 each (0. 87187-404-086) I have enclosed payment for $ (Save shipping and handling.) Bill me. (Institutions only. Add $1.95 shipping and handling per kit.) P.O. u Signature Name Title Organization Phone AddrP-, City State ZIP Bill to (if different) Send to: Congressional Quarterly Books Department 86, 1414 22nd Street. N.W., Washington, D.C. 20037 (Thebooks and materials in these kits may also be purchased separately.) Q la this Constitution Index: this Constitution / issues 1- 17 Compiled by Elsie Oppenheirn

ifc: inside front cover

"Achimement of the Framers" (Henry Steele Comma Bilhas, George Athan ("The Declaration of Independence. Convention li 1:44, 10 46 ger) 15.33 A Constitutional Document")6.47 Cooke, Jacob E. ("Alexander Hamilton: Federalist")7:22 Adams, John 1124 "The Birth of the Federal Court System" (David Eisen- Cornell University7.41, 7.42 fro-Americans84, 10.43 berg. Christine R. Jordan. Mama Marcus. and Emily F. Council of Chief State School Officers 943 Aging, National Council on128 Van Tassel)17:18 Cotrts-See Judiciary. Agency for International Des elopment 820 Black. Hugo 344 CRADLE: Center for Research and Development in Lan Aliens 825 Book discussions 10.41 lielated Falucation13.52 Alley, Robert S. ("On Behalf of Religious Liberty. James Boston University7:41 Cro% ford County. Ohio 11.45 Madison's Memorial and Remonstrance")12:26 Bouman, Michael ("Organizing Book Discussion Groups Creighton University 10 47 Alabama 128. 2 40, 344, 7.41. 10.43, 1048, 16 47 on the Amencan Founding") 10.41 CCM, Lawrence Delbert (Parley: Second Amend- Alaska2.40, 7:41 Boyd, Steven R. ("Five Altemati% e Constitutions for the ment)1421 Alcorn State University 1043 United States") 1027 Cronin. Thomas E. (-The Origins of the American Presi- "Alexander Hamilton: Federalist" (Jacob E. Cooke) 722 Brazil, American Studies Association In1128 dency') 12:11 Alternative constitutions 10.27 Brigham Young University11:38 Cullen. Charles T. ("Thomas Jefferson. Writingsonthe Alvenm College10 44 Bntish Academy1724 Constitution") 1327 American Antiquarian Society7.41 Bntish Institute of the United States 846 American Association for State and Local History127 Brown v. Board of Education of Topda 1424 Dallas, Unnerszty of 6 45, 0.44 American Bar Association 342. 7.46. 10.48. 13.51. 16 41 Buchanan. James M. (See Marcus, Macva) 223 Dartmouth College 14.44 Amencan Civil Liberties Union 1043 Bureaucracy 9.11 Daughters of the American Resolution, National Socie- American Constitution and Representative Government. 13ums, James MacGregor and Richard 13. Monis ("The ty10 48 Conference 8.45 Constitution. Thirteen Crucial Questions")14 A Da) book for 1787: July 9. 1787 to July 13. 1787 (Inde American Enterprise Institute for Public Policy Re- pendence National Historical Park) 15.42 search lx12, 1.43. 2 40,8.50. 11:42. 16 46. 1647, 17:54 California146, 3 42. 7.41. 9.43. 10.44. 11.46. 12.47, 1647, Dayton. University of14.44 American Federation of Labor-Congress of Industrial Or- 17.54 D C. Community Humanities Council128 ganizations 228 Carl Albert Congressional Research & Studies Cen- de Tocquenlle. Alexis,Democracy in AmmanReligion American Historical Association1.43. 6 44. 6.45, 7:47.846 ter8.45 in a Democraticniety (Unnersity of California. Santa American Philosophical Society1110 Carl Vinson Institute of Government 942 Barbara)10 44 American Political Science Association1)7, 2,40. 16.47 Carter Center16 46 The Declaration of Independence1a1. 224, 6 ifc American Studies Association1128,14 44 Catholic University of Puerto RICO1044 "The Declaration of Independence. A Constitutional Docu- Annapolis Cons ention 12.4 'The Centennial of the United States Constitution. A Case ment" (George Athan Bilhas)6.47 Annapolis Cons ention Bicentennial 12 44 of Memory and Amnesia" (Michael Kammen) 1.14 Delaware 40.528, 7.44. 10.43. 11:46 Annapolis ConventionReportofProceedings Center for Civic Education9.43. 13.54 Denser Urban College 10.43 12 ifc Center for Constitutional Studies. National1046 Diamond, Martin ("A Fundamental Contentment") 428 Archi% es. National I.41.223,244,346. 4-46. 6 41.8 46, Center for Judicial Studies 942 Dinnerstem. Leonard ("The Supreme Court and the Rights 948. 1043. 11.48, 1345. 1348, 1351 Center for Responsible Citizenship 10 47 of Aliens") 825 Anti-Federalism 16 10 Center for the History of Bntish Political Thought. Folger Directory of Becentennial Organizations1520 Arizona1)7, 128 Institute2.45, 16.45 Documents Arkansas 128. 16.49 Center for the Study of Federalism (Temple Unn.)943. "Alexander Hamilton. Federalist" (Jacob E. Cooke) 722 Art (Sesquicentennial) 14.11 16 46 'The Case of the Centuy:Brawn v. Board of Education Articles of Confederation 7.ifc. 7.49 Center for the Study of the Constitution. (PA) 244, 644. of Topeka"(Hugh W. Speer)1424 AT&T 13:51. 16 45 10.44 "The Constitutional Thought of John Jay' (Richard B. Baker, Richard Allan ("The 'Great Departments: The On- Central Michigan University8.45 Morris) 925 gin of the Federal Government's Executive "Charles A. Beard's Economic Interpretation of the On 'The Federal Constitution. Boys, and Lberty Former: Branch") 17:11 gins of the Constitution" (Ellen Nore)17.39 Music and the Constitution" (Jannclle Warren Find, Banning. Lance ("From Confederation to Constitution. "Chief Justice Taney and fits Court" (William NI. Me. Icy)16 15 The Revolutionary' Context of the Great Cornett. cek) 619 thin') 612 "Me Alternative Constitutions for the United States" Chinese University of Hong Kong14.44 (Steven R. Boy d)1027 Bard College 1s3.3 Christians and Jens. National Conference on14.46 "'It is my nub as nellasmy Duty to attend the courC:. Beard. Charles1729 Chronology of Bicentennial Dates1 ife. 5 ay. 9 Ire. 13 ife the Hardships of Supreme Court service. 1790-1800" Belknap. Michal R. ("Vietnam and the Constitution the Chronology of State Constitutions17 ifc (Massa Marcus. James R Perry, James M. Buchanan. War :loner Under Lyndon Johnson and Richard Nix- Citizens Forum 446 Christine R. Jordan. and Stephen L. Tull) 223 on")1012 Citizenship 812 "New Documents, New Light on the Philadelphia Con- Best,: 'dab A. ("The Electoral College. A Paradigm of Chitan, Clinton10.43 vention" (James II. Hutson)1527 American Democracy") 12 19 Claremont Institute for the Study of Statesmanship and "On Behalf of Religious Liberty: James Madison'sMemo, Bibliography5.48,928- 40.16:37 Political Philosophy1.42, 2.40, 544, 9.42 rial and Remonstrance"(Roert S. Alley)1226 Bicentennial of the United States Constitution. Commis Colorado 4 48, 9.47. 10.43. 10 44 " 'Oursel% es and Our Daughters Forever-: Women and the sion on the 1.48, 2.47, 2 48. 5.48. 8,50, 9.48. 10,50-51. Columbia University127. 6 45 Constitution. 1787-1876" (Linda K. Kerber)62.5 11:47. 12 49. 14.47,16 48-49 Commager. Henry Steele ("The Achievement of the Fram- 'The Preamble to the Constitution of the United States" Bicentennial Commissions, State and Municipal (See also ers")1523 (Donald S. Lutz)123 state listings) 227-38, 6.42-43. 7:44. 7.46. 8 49. 9.46-47. Commerce8.40, 10.4 attention is very much fixed on the proceedings 1043, 1049. 11:44, 11:46, 12.46. 1248 -49. 1349, 16 49 Commission on the Bicentennial of the United States Con of the new Congress - The First Federal Congress Be- Bicentennial Leadership Project (Workshop)16 44 sutution-See Bicentennial gins its Work" (Charlene N. Bickford) 526 Bicentennial Organizations, Directory of15.50 Commissions (state & local) 10 ife. 11.46, 12 48, 1121 "Ratifying the New Constitution" (John P. Ka- Bicentennial Presentations17.48 Committee on the Constitutional Sy stem.5.44 minski)1725 Bickford. Charlene N ("'Public attention is eery much Community Renenal Society 127 'The Separation of POIA ers: John Adams Influence on fixed on the proceedings of the new Congress' The Conable, Barber (Parley Effective Govemnienti 542 the Constitution" (Gregg L Lint and Richard Alan Ryer- First Federal Congress Begins its Work") 526 Conference planning 14.41 son) 1124 Bill of Rights (articles) Congress5.4,5:26. 17.4 'The Supreme Court and the Rights of Aliens" (Leonard "The Case of the Century: Brown v. Board of Education Connecticut226. 2.39 Dinnerstein)82,5 of Topeka" (Hugh W. Spear) 1424 -The t onstitution. Thirteen Crucial Questions" (James 'Thomas Jefferson. Wntings on the Constitution" "The Founding Fathers and the Right to Bear Arms: A MacGregor Burns & Richard B. Moms, 1.4 (Charles T. Cullen)1327 Well Regulated Militia" (Lawrence Delbert "The Constitution and the Bureaucracy' (Martin Sha 'The Virginia Plan of 1787, James Madison's Outline of a Cress) 1421 piro)911 Model Constitution" (Robert A. Rutland) 423 "The Founding Fathers and the Right to Czar Arms To "The Constitution and the Welfare State' (Kenneth M. "Wnung the Constitution: The Report of the Committee Keep the People Duly Armed" (Robert E. Shal Holland)11:18 of Detail, August 6, 1787" (James II. Ilutson)323 hope)14:18 "The Constitution as Myth and Symbol" (Milton M. Dolbeare, Kenneth M. and Linda J. Medcalf ("The Political "The Meaning of a Free Press" (Paul L. Murphy) :3.4 Klein) 16:15 Economy of the Constitution") 14 4 "The Meaning of American Citizenship" (Rogers 31. Constitution Day (September 17, 1987) 16.43 Douglass Adair Symposia 1:46 Smith) 8 12 The Constitution of the United States 2 ifc. 15 ifc Drama 29 'On Behalf of Religious Liberty' James Madison's Memo Constitution 20014.45, 16.46 Dry, Murray ('The Cor.stitutional Thought of the Anti Fed- rial and Rernonstrance"(Robert S. Alley) 1226 Constitutional change3:11, 4 ifc. 4.4, 4:17.5.13 eralists") 16:10 "'Ourselves and Our Daughters Fore%ei Women and the Constitutional Convention (1787) 1.19. 323. 14 ife. 15 (is- Duke University644 Constitution, 1787-1876" (Linda K. Kerber)62.5 sue) "Race and the Constitution: The Case of the Japanese Constitutional History Conference for Secondary School Economies of the Constitution 11, 8.40, 11:18. 14 4, American Internment" (Peter Irons)13.18 Teachers, Creighton University10 47 1423, 17:39 "Ratifying the New Constitution" (John P Ka Constitutional History Project9.43 "Education for a Reputlic: Federal Influence on Public minski) 1725 Constitutional Issues and Early Republican Culture 943 Schooling in the Nation's First Century" Oland Tyack "Retrieving SelfE%ident Trusts: The Fourteenth Amend Constitutional System, Committee on 544 and Thomas James)9.17 ment" (Howard N. Meyer) 4:11 "The Constitutional Thought of the Anti Federalists" (Min Educational Films on the United States Constitution. "The Supreme Court and the Evolution of Women's ray Dry) 16:10 1 laic Rights" (Earlean M. MeCarrick) 13.4 "The Constitutional Thought ofJohn Jay" (Richard 13 Educational Resources16.40 "Weevils in the Wheat: Free Blacks and the Constitu Morris) 925 "Eighteenth century' American Constitutionalism" (Gordon tion," 1787-1860 (James Oliver Horton)8 4 Constitutionalism 1.9 S. Wood) 19 this Constitution 317 83 Eisenberg, David, Christine H Jordan, Maeva Marcus, and -.The Pursuit of Happiness. the Prn ate Realm. Com -(" Outcast' Rhode Island-The Absent Emily F. Van Tassel (The Birth of fie Federal Court fierce, and the Constitution"8 40 State') 15.34 System")17:18 Hall, Kermit L. ("Why We Don't Elect Federal Kentucky129,9.47 Eleanor Roosevelt Centennial Cor .nission451 Judges")1020 Kerber, Linda K. ( " 'Ourselves and Our Daughters Forev- 'The Electoral College A Par:1k; a of American Demur Hamilton and JeSerson ladmur Olegovnli Peehat er'. Women and the Constitution, 1787-1876")625 racy" (Judith A. Best) 12:19 nov)12.38 Klein, Milton M. ('The Constitution as Myth and Sym- 'The Electoral College: Archaic. Uncertain. Unfair (Law- llamil :on, Alexander722, 1228 bol") 16:15 fence D. Langley) 1222 IlampdemSydney College10 44 Kurland, Ph Sp B. ("The Origins of the National Judicia Elks Island Foundation 450 Bayard University7.42 ry")2.4 Emory University 16 46 Hawaii128, 2.37, 12 46, 13.50 Executive Branch 17.11 Hearst Corporation16.44 Landau, Martin ("A Self Correcting System: The Constitt Hebrew University of Jerusalem 16.46 tton of the United States") 11:4 Fairleigh Dickinson ennersity 447 Ilenretta, James A. ("Society and Republicanism. America "Liberty and Taxes. The Early National Contest" (Thomas "Federal Authority and State Resistance: A Dilemma of in 1787") 15.20 P. Slaughter) 7:11 American Federalism" (Tony Meyer) 11 11 Histonans, the Organization of American 3 43 Lilly Library. Indiana University 10 45 Federal Convention Call by the Confederation Congres Ilistoncal Association (see American Historical Assoua Lint, Gregg L. and Richard Mar, Ryerson ( "The Separation s14 ifc Lion) of Powers:John Adams' Influence on the Constitt Federalism 6 4, 10:..75. 11:11 Historical Society, United States Capitol1.46, 14 45 don')1124 "The Federalist"(Jean Yarbrough)164 History Amencan Association for State and Local 1.37 Lofgren, Charles A. ('To Regul rte Commerce. Federal The Federalist,Number 51 16 ifc History, Amencan, National Museum of (Smithsonian In. Power Under the Constitution")104 The Federalist(For the Classroom)1632 standard1644 Langley, Lawrence D. ("The Electoral College: Archaic, "Federalists and the Idea of 'Virtue." (Thomas Dan- "History as Drama. The Constitution in the Federal The- Uncertain, Unfair')1222 gle)5.19 atre Project" (Barbara Melosh) 29 Lsop College14:44 Federalist Society for Law and Public Policy Studies 9.45 History Day, National7:47 Loyola College16.45 Randi S. and Robert McClory ('The Constitutional History Teaching Alliance8.46 Loyola University1:37 Power of Impeachment') 7.17 Hofstra University11:40 Louisiana9.43 Filmt(cempilation) 1 1 ire Holland, Kenneth M. ('The Constitution and the Welfare Lutz, Donald S. ("The Preamble to the Constitution of the "Five Alternative Constitutions for the United States" State.)11:18 United States")125 (Steven R. Boyd)1027 Holmes, Jr.. Justice Oliver Wendell7.47 Floridalas, 742, 14.44. 1647 Hong Kong Baptist College14.44 Folger Institute, Center for the History of British Political liorsnell, Margaret ("Who Was Who in the Constitution- Macalester College 14.46 Thought1645 al Convention")1539 Madison, James 316, 423, 1226 For the Classroom Horton, James Oliver ("Weevils in the Wheat: Free Blacks Maine139 'The Amencan Experiment,' A Summer Seminar on and the Constitution, 1787-1860") 84 Maier, Pauline ('The Philadelphia Convention and the De- (Harvey C Mansfield, Jr, and Delba Winthrop)934 Howard, A E. Dick (" 'A Frequent Recurrence to Funda- velopment of American Government. From Virginia Plan The Constitution: An Economic Framework (Peter R. mental Principles. The Courts and Constitutional to the Constitution')15.12 Senn and William J. Stephen) 1423 Change")3:11 Malbin, Michael J. ("Framing a Congress to Channel Am- Constitutional Rights in a Time of Crisis. 1941-45 (John -("State Constitutions. Pillars of the Federal Sys- bition")54 J. Patrick and Richard Remy) 13.34 tem")1724 Marcus, Maeva, James R. Perry, James M Buchanan, The Fabrication of the Amencan Republic. 1776-1800 Human Rights, Center for the Study of, Columbia L mar- Christine R. Jordan, and Stephen L. Tull (-It is my wish (Jack P. Greene)1550 any 645 as well as my Duty to attend the court': the Hardships Maryland and the US. Constitution: An Elementary Humanities Center. National 16.45 of Supreme Court service, 1790-1800")2.23 School Unit (Maryland State Archives)12.34 Humanities Councils, National Federation of State1.38, - -(See Eisenberg, David) 17.18 The Meaning of the Constitution (Walter F. Mur- 16 48 Marietta College3.45 phy) 17.45' Humanities. National Endowment for the126-38, 2:40- Marling, Karal Ann CA 'New Historical Whopper': Creat- The New Hampshire Constitution Your Key to Liber 41. 3 41- 42.5.47, 6 44-45. 7.41-42. 941-42. 10.43-44, ing the Art of the Constitutional Sesquicentenni- ty 524 1239-44, 13 49, 1442 -43, 16.47-48, 1755 al") 14:11 The New Mexico Law Related Education Project The Hutson, James H. ("Wnting the Constitution. the Reports Marshall-Wythe School of Law 4 46,10 49, 11 44 Question of Women's Rights in 1776 (Melinda R Smith, of the Committee of Detail. August 6, 1787")3.23 Maryland129, 2.39, 7.41, 7.42, 7.44, 7.46, 10 43. 10.49. editor)635 - ("New Documents, New Light on the Philadelphia 11:44, 11:46, 12 47, 16 44, 16 46 Pathway to Judgment:Near v. Minnesota(1831) (John Convention")1527 Masons, Washington. D C.1138 Patrick and Richard Remy) 321 Hyman, Ilarold M. ("War Powers in Nineteenth- Century' Massachusetts129, 11.44, 11:46 Race and Slavery in the Amencan Constitutional System, Amenca. Abraham Lincoln and His Heirs )94 Nlathas,Jr , Charles McC. ('The Constitution in the Twen- 1787-1865 (Don Fehrenbacher) 421 ty-first Century")220 Resources on Federalism for Cumculum Dec elopment McCarrick, Earlean M. (`The Supreme Court and the Evo- (John Kincaid)1025 Idaho1350 lution of Women's Rights") 13.4 Selections on the Constitution from Secondary School Illinois2.39, 10 43 McClory, Robert and Field, Randi S ('The Constitutional History Books of Other Nations (US. Office of Educ. Impeachment7:17 Power of Impeachment")7:17 Dept. of HEW (1976)1122 "Impenal Roots of Amencan Federalism" (Jack P 'The Meaning of American Citizenship" (Rogers M. Separation of Powers with Checks and Balances inThe Greene) 64 Smith)8:12 Federalist(John J. Patrick and Clair W Keller)16.n Independence National Histoncal Park 247. 5.44, Mcdcalf. Linda J. and Kenneth M. Dolbeare (The Political Washington's Decision to Attend the Constitutional Con- 847, 11.45 Economy of the vention (John Patrick and Richard Remy) 1:19 Indiana235, 10.43, 10.45, 12.46, 16.47 Constitution")14.4 What Does the Constitution Say About Separation of Institute of Early Amencan History and Culture741, 'The Meaning of a Free Press (Paul L. Murphy)3.4 Powers and Checks and Balances? (John J Patrick and 244, 5.46 Media 246.326-10, 3.42, 4 47, 8 48, 9.45, 1043-44, 12 48, Richard Remy)2:31 "Introductory Bibliography to American Constitutional 1351, 13.54, 13.55, 1446, 14.47, 1642, 16 45. 17:48-52 The Whiskey Rebellion: A Test of Federal Power (John J. History" (Kermit L. Hall) 938 (compilation), 17.53 Patrick and Richard Remy)722 Iowa):8, 16.44 Medieval and Renaissance Studies, Arizona Center The Work of Peace (Helen 11. Carey and Judith E. Green- Irons, Peter ("Race and the Constitution. The Case of the for137 berg)8.36 Japanese-American Internment") 13.18 Melosh, Barbara ("History as Drama: the Constitution in Ford Hall 1129 Iroquois 14.45 the Federal Theatre Project")219 Foreign Policy Association 16.44 -It is my wish as well as my Duty to attend the court': Mentor Group 8.46 Fourteenth Amendment4:11 the Hardships of Supreme Court service, 1790-1800" Memll Lynch16 43 "Framing a Congress to Channel Ambition (Michael J (Mama Marcus with James R. Perry, James M. Buchan Meyer, Howard N. ("Retrieving Self Evident Truths. The Malbin)54 an, Christine R. Jordan, and Stephen I.. Tull)223 Fourteenth Amendment")4:11 Ftaunces Tavern Museum 16 45 Miami. University of4.47 Freedoms Foundation, Valley Forge 10 47 James, Thomas and David Tyack ("Educa, for a Re- Michigan University, Central 845 "'A Frequent Recurrence to Fundamental Principles'. The public. Federal Influence on Public Schooling in the Na- Middlebury College9.43 Courts and Constitutional Change" (A.E. Dick How- tion's First Century")9.17 Miller, Arthur S. (Parley:Judicial Activism) 13.38 ard)3:11 lames Madison and the Extended Republic: Theory and Mississippi 10.43, 16.49 Fteyer. Tony ("Federal Authonty and State Resistance. A Practice in Amencan Politics" (Jack N. Rakove)3.16 Missouri 139,10.43, 10 46 Dilemma of American Federalism") 11:11 Japanese American Internment13:18.1334 Montana129, 10 43 Friends of Independence National Historical Park Com- Jay,John 925 Montpelier 12.47 mission 11.45 Jefferson Foundation2.44. 5.45, 10.43. 1044. 1040. 1353. Moms, Richard B. ('The Constitution. Thirteen Crucial "From Confederation to Constitution: The Revolutionary 16.47 Questions") 1.4 Context of the Great Convention" (Lance Ban- Illinois 10 43 - -(The Constitutional Thought of John Jay") 925 ning)6.12 Indiana12 46 - -(The Mount Vernon Conference: First Step To. Fulbright Colloquium 1987, University of Birmingham, Virginia 10.44 ward Philadelphia")628 U.K.17.54 Jefferson, Thomas1238, 13.12, 1327 Mount Vernon Conference Bicentennial 8 .4:1 Fulbright Commission, US. U K 17.54 Jesuit Colleges and Universities, Association of 14.47 'The Mount Vernon Conference. First Step Toward Phila- "A Fundamental Contentment." (Martin Diamond)4.38 Joint Center for Political Studies 245 delphia" (Richard 11. Morris)628 Johns Hopkins University 641 Murphy. Paul L. ('The Meaning of a Free Press")3.4 'The Gamble at Annapolis" (Jack Rakove) 12.4 Jordan, Christine R. (see Marcus, Maeva)2:23 Music1622 George Mason University127. 1:45, 8 45 - (See Eisenberg, David) 17:18 Georgia128, 228. 9.42, 11:44, 16 46 Judicial Studies, Center for9.42 National Archives-See Archives, National Graglia, Lino A. (Parley Judicial Acticism)13.38 Judiciary2.4, 223, 311. 4.4. 10.20, 1.338, 14,36. 17 18 National Endowment for the Humanities (NE11) -See Hu- Great Decisions '87 16 44 manities 'The 'Great Departments. The Ongm of the Federal Gov Kansas138, 1043 National Federation of State Humanities Councils138, emment's Executive Branch" (Richard Allan Kamen, Michael ('The Centennial of the United States 16 48 Baker) 17.11 Constitution. A Case of Memory and Amnesia") 1 14 National Portrait Gallery (Smithsonian Institution) 1644 Greene, Jack P. 'The Impenal Roots of American Federal Kaminski, John P. ("Ratifying the New Constitu Sac), Museum 16 44 ism"6.4 non")1725 Nebraska1043, IGAti

84 318 this Constitution Negro Business and Professional Womens' Clubs. National "The Pursuit of Happiness. the Pni ate Realm. Commerce. Teachers College, Columbia University 1.37 Association of 245 and the Constitution" (Jack 1'. Greene) 840 Temple University7.42,16.46, 1647 NEHSee Humanities, National Endowment for Tennessee140, 6.43. 1349 -50. 16.49 Network of Scholars428, 540, 6.45, 743, 1044. 13.40 Race431, 84, 13:18,1424 Texas127, 1:40, 1646. 16 49 (cumulation) "Race and the Constitution: The Case of the Japanese Thirteen Crucial Questions 1:4 Nevada 129 American Internment" (Peter Irons)13:18 "Thomas Jefferson and the Constitution" (Mernil D. Peter New Englard History, Bibliographies of7.41 Rakove, Jack N. ("James Madison and the Extended Re. son)13.12 New England Foundation for the Humanities 13 56 public. Theory and Practice in American Politics"3.16 Thomas Jefferson Memonal Foundation7.41 New England Library Association1356 ("The Gamble at Annapolis")124 "Thomas Jefferson. Wntings on the Constitution" (Charles New Hampshire139, 5.34, 6.42, 8.49,11.46 Ranney, Austin ("What Constitutional Changes Do Amen. T. Cullen)1327 The New Hampshire Constitution: Your Key to Libels cans Want?")5:13 Treaty of Paris8 ife ty 538 Ratification1725 Treaty of l'aris, National Commission for the Bicentennial "A 'New Historical Whopper: Creating the Art of the Con "'To Regulate Commerce. Federal Power Under the Con- of1.44 stitutional Sesquicentennial' (Karal Ann Marling)14.11 stitution" (Charles A. Lofgren)10.4 Treaty of Pans The Work of Peace (Helen 11. Carey and New Jersey2:36, 346, 10.49, 11,45 Rehnquist, William H ("Presidential Appointments to the Judith E. Greenberg) (see For the Classroom list. New Mexico1:38, 129, 10 43, 11:44, 11:46 Supreme Court")1436 mg) 836 New York1:38-39, 10.44, 14 45 Religion1044, 1226 Tull, Stephen L (See Marcus, Macia) 223 Nom, Ellen ("Charles A. Beard's Economic Interpretation Revelry, 111, W Taylor ("War Powers of the President and Tyack, David and Thomas James ("Education for a Re of the Ongins of the Constitution")1739 Congress' Who Decides Whether Amencan public. Federal Influence on Public Schooling in the Na- North Carolina127, 1:38, 1-47, 239, 2 40, 6 42, 6.43, 7.41. Fights?")8.19 tion's First Century")9 17 16:45 Rhode Island 1:40 North Dakota139, 9 47, 14 46 Ripon College16 47 Unitarian Universalist Metro 10 43 "The Northwest Ordinance: America's Other Bicentennial" Rutgers University7.41, 7.42, 16.45 United States Constitutional Bicentennial4.47 (Phillip R. Shriver) 14.40 Rutland. Robert A. (-The Virginia Plan of 1787: James US. Information Agency 3.43, 8.50 Madison's Outline of a Model Constitution")42.3 US. Military Academy, West Point16.43 Ryerson, Richard Alan and Gregg L Lint ("The Separation Utah140, 8 49, 10.44, 16 47 Ohio 139, 849, 11:46,13 .49 of Powers:John Adams Influence on the Constitt Oklahoma 128, 146, 2.40, 7 41, 8 45, 10.44, 12.46 non')1124 Van Tassel, Emily F. (See Eisenberg. David)17:18 "On Behalf of Religious Liberty:James Madison's Memori Vermont1:40, 2 40, 5 47, 7.4 al and Remonstrance" (Robert S. Alley) 1226 "Vietnam and the Constitution: the War Power Under Lyn- Onuf, Peter S. ("Virginia, Vermont, and the Origins of the Saint Benedict, College of 10.48 don Johnson and Richard Nixon" (Michal R. Belk- Federal Republic")7,4 Scholars, Network of (See Network) nap) 10 12 Oregon 140, 235 Second Amendment14:18. 14 21 Virgin Islands 16 49 Organization of Amencan Historians 343 "A SelfCorrecting System The Constitution of the United Virginia1.40, 1.45, 2.40, 3 42, 544, 6.41, 738, 7.41, 7.42, Organizing Book Discussion Groups on the Amencan States" (Martin Landau) 11:4 9 45, 9.47, 1043, 1044, 11.46, 1754 Founding (Michael Bauman) 10.41 Separation of Powers 231 'The Virginia Plan of 1787: James Madison's Outline of a "'Me Origins of the American Presidency" (Thomas E. 'The Separation of Powers John Adams Influence on the Model Constitution" (Robert A. Rutland)423 Cronin)12:11 Constitution" (Gregg L Lint and Richard Alan Ryer- "Virginia, Vermont, and the Ongins of the Federal Repub. "The Origins of the Constitution" (Gordon S. Wood)154 son)1124 he" (Peter S. Onuf)7.4 "The Origins of the National Judiciary" (Philip B. Kur- September 17, 1987 (Constitution Day) 1643 "Virtue"5.19 land)24 Sesquicentennial 1411 "'Our Successors Will Have an Easier Task'. The First Shalhope, Robert E. (Parley. Second Amendment) 14 18 War Powers (Twentieth Century) 10.12 Congress Under the Constitution, 1789-1791" (Joel H Shapiro, Martin ("The Constitution and the Bureaucra "War Powers in NineteenthCentury Amenca Abraham Silbey) 17.4 cy")9:11 Lincoln and His Hews" (Harold M. Hyman) 94 "'Ourselves and Our Daughters Forever Women and the Sinn, Jr., Witham T., Review of Carnation l Dzhefferson "War Powers of the President and Congress. Who Decides Constitution, 1787 - 1876" (Linda K. Kerber) (Hamilton and Afferson)1238 Whether Amenca Fights?" (W. Taylor Reveley,111) 8:19 "'Outcast' Rhode IslandThe Absent State" (John P Ka Shiver, Philbp R. ("The Northwest Ordinance. Amenca's Warren Findley, Jannelle ("The Federal Constitution, minski)1534 Other Bicentennial")14.40 Boys, and Liberty Forever: Music and the Constitu Silbey, Joel iI, ("'Our Successors Will Have an Easier tion")1622 Pai,gle, Thomas ("Federalists and the Idea of 'VII, Task'. The First Congress Under the Constitution, 1789- Washington, Azchdiocese9.43 tue'") 5.19 1791')17.4 Washington (state)1 :40, 3.45, 10 49 Parleys Slaughter, Thomas P. ("Liberty and Taxes. The Early Na. Washington College, Chestertown. Maryland12 47 Effective Government: Barber Conable/James Sun clonal Contest") 7:11 Washington, George 1:19, 12:11 542 quilt Smith, Rogers M. (-The Meaning of Citizenship") 8:12 Wake Forest University School of Law 942, 13.52 Judicial Activism: Arthur S. Maier/Lino A. Graglia1338 Smithsonian Institution 235, 9.43,11.38, 14.44, 16 44. Wayne State University 7:41 Second Amendment: Robert E. Shalhope/Delbert 16.46 We the People 200 (Philadelphia)7.43 Cress 14.18 Social Studies, National Council for7.46, 846, 642 "We the People" (ABA) 10.48 Pechatnov, Vladimir Olegovich (Camilion I Dzhciferson "Society and Republicanism. Arsenca in 1787" (James A. "Weevils in the Wheat, Free Blacks and the Constitution" (Hamilton and Alferson) review1238 Ilenretta)1520 (James Oliver Horton)8 4 Pennsylvania, University of 137, 1:40, 4.48, 742, 9.46. Somerset Community College (Kentucky) 10 43 West Virginia 1:40 1044, 12 45 Sorauf, Frank J. ("Winning in the Courts. Interest Groups "What Constitutional Changes Do Amencans Wart?" (Aus- Pennsylvania 13.51, 16.45 and Constitutional Change")4 4 tin Ranney)5:13 Perry, James R. (See Marcus, Maeva) 223 South Carolina 947 Whiskey Rebellion7:11, 732 Peterson, Merrill D. ("Thomas Jefferson and the Coastal.' South Dakota1.40, 10 44 "Who Was Who in the Constitutional Convention" (Nfarga doe) 13.12 Speer, Ilugh W. ("The Case of the Century: Brown v. ret Ilorsnell)1539 Peterson, Richard ("Planning a Conference for Iligher Board of Education of Topeka")14.24 "Why We Don't Elect Federal Judges" (Kermit L Education") 14:41 St. John's University 10 48 Hall)1020 Phil Alpha Delta Law Fraternity 127 Stanford Ilutnanities Center 7.47 Wiecek, William M. ("Chief Justice Taney and His Phi Sigma Alpha 10 46 Stanford University7:42 Court')6:19 Philadelphia Center for Early American Studies5.16 State Bicentennial Commissions and State Ilumanitws William and Mazy, College of 2 44.4.46 "The Philadelphia Convention and the Development of Councils14,51 William Paterson College of New Jersey 17.54 American Government: From the Virginia Plan to the State Constitutions (chronology)17.1fe Williamsburg, Colonial2.44, 14:45 Constitution" (Pauline Maier)15:12 "State Constitutions !Mars of the Federal System" (A E. "Winning in the Courts: Interest Groups and Constitution. Philosophical Society, American 5.46 Dick Howard)1724 al Change" (Frank J. Sorauf) 4:4 Pierce, Franklin, Law Center 14.44 State and Municipal Commissions for the Bicentennial of Wisconsin, University of137, 146, 238, 239, 7:42, 1129 "Planning a Conference for Iligher Education" (It:chard the United States Constitution10.1:,., 1146, 12:48 men, Amencan Association for University 10 44 Peterson) 14 41 Statue of Liberty4.50 Womens' Clubs, National Association of Negro Business "The Political Economy of the Constitution" (Kenneth M. Student Conference on US. Affairs 13:54 and Professional2.45 Dolbeare and Linda .1. Xfedcall) 14,4 Sturbridge Village, Old13.55 Women's Rights625, 6.35, 13.4 Political Science Association, American 1.37, 16 47 Sundquist, James (Parley Effective Government)542 Wood, Gordon S. ("Eighteenth century. Amencan Lonstftu "Preamble to the Constitution of the United States" (Dom "The Supreme Court and Evolution of Women's Rights" tionalism")13 ald S. Lutz)123 (Earlean M. McCarrick) 13.4 (-The Origins of the Corstitution") 15.4 Presidency 12:11 'Me Supreme Court and the Rights of Aliens" (Leonard "Wnting the Constitution, the Report of the Committee of "Presidential Appointments to the Supreme Court" (MI- Dinnerstein) 825 Detail, August 6, 1787" (James II. Hutson) 323 liam 11. Rehnquist)1436 Symbolism of Constitution 16'15 Wyoming 1:40 Press3A, 321 Project '87 6.44, 6.45, 8.47 Taney, Roger 6:19 Yarbrough, Jean ("The Federalist")16.4 "'Public attention is very much fixed on the pioccedings Taxes7:11 YMCA 3.45, 10 49 o: the new Congress': The First Feoeral Congress Be- g= its Work" (Charlene N. Ihckford) 526 Public Forum The Constitution in the Twenty first Century (Senator Charles McC. Mathias, Jr,)220 this Back Issues Available The Constitutional Power of Impeachment (Robert Me- Clory and Randi S. Field)7.17 Constitution Back issues 14 (Spring 1987) through 17 (Winter 1987) A New Constitutional Convention?4:17 Public Research, Syndicated127, 2.40, 1641 of this Constitution may be ordered until June 30, 1989 Publications 242-43, 3.44, 5.47, 548, 643-41, 8.48, 9.45, for $4.00 each; additional copies of this issue (No. 18) 10.45, 11.40-43, 11.48, 12 48, 13.50-52, 13.55, 1637-41, 16 46, 17.53-54 may be ordered for $6.00 each. All orders must be Puerto Rico1:40, 10 44 prepaid. Send to Project '87, 1527 New Hampshire Ave- Purdue University14:44, 17:54 nue, N.W., Washington, D.C. 20036. this Constitution 319 85 01 4.* Project'87

... MI iiv * I I NI *v:*- The implementation of Project '87 has been di- and those of others, both students and the public vided into three distinct but interrelated stages. alike will come to a greater awareness and com- project '87 is a joint undertaking of the Ameri- Stage I, devoted to research and scholarly ex- prehension of the American Constitution. can Historical Association and the American changes on the Constitution, has been underway Core support for Project '87 comes from the Wil- Political Science Association. It is dedicated tofor the past several years. The Project has awardedliam and Flora Hewlett Foundation. Additional commemorating the Bicentennial of the United fifty-one research grants and fellowships and sup- grants for specific programs have been provided States Constitution by promoting public under- ported five major scholarly conferences dealing by the National Endovvment for the Humanities, standing and appraisal of this unique document. with various aspects of the constitution. Activities which funds the magazine, and by the Andrew W. The Project is directed by a joint committee of in connection with Stage Iiteaching the Constitu-Mellon Foundation, the Lilly Endowment, Inc. of historians and political scientists which is chaired tion in schools and collegesbegan in 1980, and Indianapolis, Indiana, the Rockefeller Foundation, by two scholars of international reputationPro- Project '87 is now implementing Stage III, pro- the Ford Foundation, CSX Corporation, the Exxon fessor Richard B. Morris of Columbia University grams for the public designed to heighten aware- Education Foundation and the AT&T Foundation. and Professor James MacGregor Burns of Williamsness of the Constitution and to provoke informed For further information, write: Project '87, 1527 College. Warren E. Burger, retired Chief Justice of discussion on constitutional themes. New Hampshire Avenue, N.W., Washington, D.C. the United States, serves as Honorary Chairman of It is the hope and expectaticm of the Project's 20036. Telephone: (202) 483-2512. Project '87's Advisory Board. governing committee that, through its activities

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