The Liberty Amendments: Restoring the American Republic
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The nation could not forever tolerate slavery. And it did not. Nonetheless, slavery was a contentious issue not only between the states, but also within the states—including in towns and counties in southern states. It was contentious not only between the federal government and the states, but within the federal government—as between Congress and the president, and between the elected branches and the Supreme Court. The same can be said of post–Civil War segregation, which was opposed by many states and practiced by others—and upheld in 1896 by the federal Supreme Court in Plessy v. Ferguson.8
Indeed, President Wilson, a leading Progressive and harsh critic of the Constitution and federalism, was a racist and segregationist. Reason magazine’s Charles Paul Freund wrote that “Wilson allowed various officials to segregate the toilets, cafeterias, and work areas of their departments. One justification involved health: White government workers had to be protected from contagious diseases, especially venereal diseases, that racists imagined were being spread by blacks. In extreme cases, federal officials built separate structures to house black workers. Most black diplomats were replaced by whites; numerous black federal officials in the South were removed from their posts; the local Washington police force and fire department stopped hiring blacks. Wilson’s own view, as he expressed it to intimates, was that federal segregation was an act of kindness. . . . ”9
It is not possible to conduct a fulsome history of slavery and segregation in these pages. It must be underscored, however, that the oppression of African-Americans could never be compatible with a civil society and the principles set forth in the Declaration of Independence, as Abraham Lincoln explained. In 1858, during his campaign for the Senate, Lincoln declared: “In [the Founders’] enlightened belief, nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded, and imbruted by its fellows. They grasped not only the whole race of man then living, but they reached forward and seized upon the farthest posterity. They erected a beacon to guide their children and their children’s children, and the countless myriads who should inhabit the earth in other ages. Wise statesman as they were, they knew the tendency of prosperity to breed tyrants, and so they established these great self-evident truths, that when in the distant future some man, some faction, some interest, should set up the doctrine that none but rich men, or none but white men, were entitled to life, liberty and the pursuit of happiness, their posterity might look up again to the Declaration of Independence and take courage to renew the battle which their fathers began—so that truth, and justice, and mercy, and all the humane and Christian virtues might not be extinguished from the land; so that no man would hereafter dare to limit and circumscribe the great principles on which the temple of liberty was being built. . . . ”10
This brief and incomplete detour into this subject is necessitated by the anticipated hyperbole that frequently accompanies present-day discussions about, and efforts to, unravel and decentralize the federal Leviathan and reestablish federalism and republican governance—which is intended to uphold the sovereignty and dignity of the individual regardless of race, ethnicity, gender, age, ancestry, or station. In this regard, there is no denying that some states today are more amenable to personal and economic liberty than others. For example, the libertarian Mercatus Center at George Mason University measures “state and local government intervention across a wide range of public policies, from income taxation to gun control, from homeschooling regulation to drug policy.” Its rankings “explicitly ground our conception of freedom on an individual-rights framework. In our view, individuals should be allowed to dispose of their lives, liberties, and properties as they see fit, as long as they do not infringe on the rights of others.” For 2012, it ranked North Dakota, South Dakota, Tennessee, New Hampshire, and Oklahoma as the freest states, and New York, California, New Jersey, Hawaii, and Rhode Island at the bottom of the list.11
The struggle today, however, is not about the acknowledged burdens of any particular state, but between the continuing ascendency of Statist utopianism and restoring the governing principles of the American Republic. It should be understood that this proposed amendment is not intended as a reflection on the infallibility of state governments and their officials. The history of man is a history of human imperfection. In fact, the reason the Framers established checks, balances, enumerations, and divisions of power in the Constitution is that they understood, by knowledge and experience, that a relative handful of imperfect human beings exercising unrestrained authority over society would result in tyranny. But individuals can escape the burdens of a given state, for mobility is among the most important characteristics of federalism, as demonstrated by population growth and decreases in respective states. There is no escaping the reach of the federal government, however, unless the individual makes the difficult and wrenching decision to give up on the country altogether and leave for other shores.
Federalism also defuses conflict and even promotes harmony. Proponents of the death penalty can live in Texas, which has the most active execution chamber, and not care much that New Jersey abolished the punishment. Proponents of right-to-work laws can live in Virginia, and not care much that Pennsylvania is a union-friendly state. States are governmental entities that reflect the personalities, characteristics, histories, and priorities of the individuals who choose to inhabit them. They have diverse geographies, climates, resources, and populations. No two states are alike. States are more likely to better reflect the interests of their citizens—localities even more so—albeit imperfectly, than the federal government. Consequently, individuals with widely divergent beliefs are able to coexist in the same country because of the diversity and tolerance that federalism promotes.
It is undeniable that the states created the federal government and enumerated its powers among three separate branches; the states reserved for themselves all governing powers not granted to the federal government; and the Constitution they established enshrined both. The Federalist Papers emphasize this truism. In Federalist 39, James Madison argued that the federal government has only “certain enumerated” powers and the states retained “residuary and inviolable sovereignty” over all else. “Each State, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.”12 In Federalist 45, Madison asserted that the proposed federal powers were “few and defined” and the power in the states remained “numerous and indefinite.”13 This was even before the adoption of the Tenth Amendment.
The ratification of the Constitution was, in fact, in doubt in certain large states, including Massachusetts, Virginia, and New York. The Federalists were forced to agree to introduce a number of amendments when the First Congress would meet after the Constitution’s ratification. The purpose of the amendments was to further protect the individual from potential abuses by the new central government. It is important to recognize that it was several of the states, at the urging of the Anti-Federalists, which threatened to scuttle the ratification of the Constitution. They insisted on what would later become the Bill of Rights. The states were relied on by the citizenry to uphold their freedom and rights and serve as a buffer between the federal government and the individual.
For example, on February 6, 1788, the Massachusetts Ratification Convention not only ratified the Constitution, but in so doing set forth a number of proposed “amendments & alterations . . . that would remove the fears & quiet the apprehensions of many of the good people of this Commonwealth & more effectually guard against an undue administration of the Federal Government. . . . ”14 The Convention recommended, in part:
. . . That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised. . . .
. . . That no person shall be tried for any Crime by which he may incur an infamous punishment or loss of life until he be first indicted by
a Grand Jury, except in such cases as may arise in the Government & regulation of the Land and Naval forces. . . .
. . . In civil actions between Citizens of different States every issue of fact arising in Actions at common law shall be tried by a Jury if the parties or either of them request it. . . .15
On June 27, 1788, the Virginia Ratification Convention ratified the Constitution but also proposed “[t]hat there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable rights of the people.”16 Among the proposals:
. . . That there are certain natural rights of which men when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
. . . That all power is naturally vested in, and consequently derived from, the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them. . . .
. . . That in all criminal and capital prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.
. . . That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the law of the land.
. . . That every freeman restrained of his liberty is entitled to a remedy to enquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.
. . . That in controversies respecting property, and in suits between man and man, the ancient trial by jury, is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable. . . .
. . . That excessive bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.
. . . That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property: all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not be granted.
. . . That people have a right peaceably to assemble together and consult for the common good, or to instruct their Representatives; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.
. . . That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.
. . . That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defence of a free States. . . . [T]he military should be under strict subordination to the governed by the civil power.
. . . That no soldier in time of peace ought to be quartered in any house without the consent of the owners, and in time of war in such manner only as the laws direct.
. . . [A]ll men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by law in preference to others. . . .17
On July 26, 1788, the New York Ratification Convention ratified the Constitution. However, it also forwarded a list of declarations, including:
. . . That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.
. . . [T]hat every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.
. . . That the People have an equal, natural and unalienable right, freely and peaceably, to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favoured or established by Law in preference of others.
. . . That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State . . .
. . . [T]hat at all times, the Military should be under strict Subordination to the civil Power.
. . . That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of war only by the civil Magistrate in such manner as the Laws may direct.
. . . That no Person ought to be taken imprisoned, or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property, but by due process of Law.
. . . That no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case of impeachment, be punished more than once for the same Offence.
. . . That every Person restrained of His Liberty is entitled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of Public Danger the Congress shall suspend the privilege of the Writ of Habeas Corpus.
. . . That excessive Bail ought not to be required; nor excessive Fines imposed; nor Cruel or unusual Punishments inflicted.
. . . That (except in the Government of the Land and Naval Forces, and of the Militia when in actual Service, and in cases of Impeachment) a Presentment of Indictment by a Grand Jury ought to be observed as a necessary preliminary to the trial of all Crimes cognizable by the Judiciary of the United States, and such Trial should be speedy, public, and by an impartial Jury of the County where the Crime was committed; and that no person can be found Guilty without the unanimous consent of Jury. . . . And that in all Criminal Prosecutions, the Accused ought to be informed of the cause and nature of his Accusation, to be confronted with his accusers and the Witness against him, to have the means of producing Witnesses, and the assistance of Council for his defense, and should not be compelled to give Evidence against himself.
. . . That the trial by Jury in the extent that it obtains by the Common Law of England is one of the greatest securities to the rights of a free People, and ought to remain inviolate.
. . . That every Freeman has a right to be secure from all unreasonable searches and seizures of his person, his paper or his property, and therefore, that all Warrants to search suspected places or seize any Freeman his papers or property, without information upon Oath and Affirmation of sufficient cause, are grievous and oppressive; and that all general Warrants (or such in which the place or person suspected are not particularly designated) are dangerous and ought not to be granted.
. . . That the People have a right peaceably to assemble together to consult for their common good, or to instruct their Representatives; and that every person has a right to Petition or apply to the Legislature for redress of Grievances.—That the Freeman of the Press ought not be violated or rest
rained. . . .
. . . That the Jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by Congress, is not in any case to be increased enlarged or extended by any Fiction Collusion or mere suggestion;—And That no Treaty is to be construed so to operate as to alter the Constitution of any State. . . .18
Nonetheless, after the Constitution was ratified, and the First Congress convened, the Federalists controlled both Houses, and they were in no hurry to consider any amendments. Madison, a member of the House from Virginia, continued pressing Congress to take up the matter, given the representations that had been made to state ratification delegates, particularly the Anti-Federalists.
On June 8, 1789, Madison was eventually able to raise the subject of his proposed amendments, which were patterned after those urged by several states. He had wanted the whole House to take up the amendments. Instead, they would be submitted to a committee for consideration. Madison began his speech to the House this way: “I am sorry to be accessory to the loss of a single moment of time by the House. If I had been indulged in my motion, and we had gone into a Committee of the Whole, I think we might have rose and resumed the consideration of other business before this time; that is, so far as it depended upon what I proposed to bring forward. As that mode seems not to give satisfaction, I will withdraw the motion, and move you, sir, that a select committee to be appointed to consider and report such amendments as are proper for Congress to propose to the Legislatures of the several States. . . . ”19