The Blessing of Domestic Tranquility
Some of us have had to travel or live in nations during a time of turmoil and revolution. Even one such experience will usually convince the most skeptical activist that there is nothing to be gained and a great deal to be lost by resorting to violence to bring about political change. Once a constitution has been established and the machinery developed for remedy or repair by peaceful means, this is the most intelligent and satisfactory route to pursue. It requires more patience, but given time, the results are more certain.
To solve problems by peaceful means was the primary purpose of the United States Constitution.
Eighteenth Principle: The unalienable rights of the people are most
likely to be preserved if the principles of government are
set forth in a written constitution.
The one weakness of the Anglo-Saxon common law was that it was unwritten. Since its principles were known among the whole people, they seemed indifferent to the necessity of writing them down. As Dr. Colin Rhys Lovell of the University of Southern California states:
"The law applied by any of these Anglo-Saxon assemblies was customary. Until the Anglo-Saxon conversion to Christianity it was unwritten and like all customary law was considered immutable." 212
England's Need for a Written Bill of Rights
Beginnings of a Written Constitution in America
American Constitution Represents Wisdom of Many
England's Need for a Written Bill of Rights
However, the Norman Conquest taught the Anglo Saxons in England a bitter lesson. Many of their most treasured rights disappeared in a flood of blood and vindictive oppression. In fact, these rights were regained very slowly over a period of centuries and gradually they were written down. In 1215 A.D., during a national crisis, the sword was virtually put to the throat of King John in order to compel him to sign the Magna Charta, setting forth the traditional rights of freemen as well as the feudal barons who had been serving under King John.
During that same century the "Model Parliament" came into being, which compelled the King to acknowledge the principle of no taxation without representation. Charles I was later pressured into signing the people's Petition of Rights in 1628, and the English Bill of Rights was signed by William and Mary in 1689.
Through the centuries, the British have tried to manage their political affairs with no written constitution and have merely relied upon these fragmentary statutes as a constitutional reference source. These proved helpful to the American Founders, but they felt that the structure of government should be codified in a more permanent, comprehensive form. It will be appreciated, therefore, that the tradition of written constitutions in modern times is not of English origin but is entirely American, both in principle and practice.
Beginnings of a Written Constitution in America
The first written charter in America was in 1620, when the Mayflower Compact came into being. Later the charter concept evolved into a more comprehensive type of constitution when Thomas Hooker and his associates adopted the Fundamental Orders of Connecticut in 1639. It is interesting that the Connecticut charter makes no reference to the Crown or the British Government as the source of its authority. It is a compact of "We, the people." As historian John Fiske writes:
"On the 14th of January, 1639, all the freemen of the three towns assembled at Hartford and adopted a written constitution in which the hand of the great preacher [the Reverend Thomas Hooker] is clearly discernible. It is worthy of note that this document contains none of the conventional references to a "dread sovereign" or a "gracious King," nor the slightest allusion to the British or any other government outside of Connecticut itself, nor does it prescribe any condition of church-membership for the right of suffrage. It was the first written constitution known to [modern] history, that created a government, and it marked the beginnings of American democracy, of which Thomas Hooker deserves more than any other man to be called the father.
"The government of the United States today is in lineal descent more nearly related to that of Connecticut than to that of any of the other thirteen colonies.... This little federal republic ... silently grew till it became the strongest political structure on the continent, as was illustrated in the remarkable military energy and the unshaken financial credit of Connecticut during the Revolutionary War." 213
American Constitution Represents Wisdom of Many
Montesquieu pointed out that when it comes to legislating (which includes the setting up of constitutions), the writing of the statute or charter is "oftentimes better regulated by many than by a single person." 214 In harmony with this same sentiment, the American Founding Fathers considered it wise to "legislate" their constitution by filtering it through the wisdom and experiences of many delegates assembled in a convention rather than leaving it to the genius of some individual. James Madison commented on this:
"It is not a little remarkable that in every case reported by ancient history in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity.
"Minos, we learn, was the primitive founder of the government of Crete, as Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. On the abolition of royalty the consular administration was substituted by Brutus, who stepped forward with a project for such reform, which, he alleged, had been prepared by Servius Tullius, and to which his address obtained the assent and ratification of the senate and people. This remark is applicable to confederate governments also. Amphictyon, we are told, was the author of that which bore his name. The Achaean league received its first birth from Achaeus, and its second from Aratus." 215
It is always difficult to operate through a committee, a group, or a convention as the Founding Fathers did. Nevertheless, the history of the convention demonstrates that the final product was far stronger than any individual could have written it. Time has also proven the tremendous advantage of having a completely written document for reference purposes rather than relying upon tradition and a few scattered statutes as the fundamental law of the land.
Nineteenth Principle: Only limited and carefully defined powers should be
delegated to government, all others being retained in the people.
No principle was emphasized more vigorously during the Constitutional Convention than the necessity of limiting the authority of the federal government. Not only was this to be done by carefully defining the powers delegated to the government, but the Founders were determined to bind down its administrators with legal chains codified in the Constitution.
It will be recalled that one of the reasons many of the states would not adopt the original draft of the Constitution was that they feared the encroachments of the federal government on the rights of the states and the people. The first ten amendments were therefore added to include the ancient, unalienable rights of Anglo-Saxon freemen so there could be no question as to the strictly limited authority the people were conferring on their central government. Notice how carefully the Ninth and Tenth Amendments are worded:
The Ninth Amendment
The Tenth Amendment
Original Balance Between Federal Government and States
Where Power Rivals Power
Why the Founders Would Have Frowned on the 17th Amendment
The Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectiv
ely, or to the people.
The people felt that the hedging up of federal authority was absolutely essential because of their experience with corrupt and abusive governments in the past. Alexander Hamilton commented on this by saying:
"There is, in the nature of sovereign power, an impatience of control that disposes those who are invested with the exercise of it to look with an evil eye upon all external attempts to restrain or direct its operations.... This tendency is not difficult to be accounted for. It has its origin in the love of power. Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. This simple proposition will teach us how little reason there is to expect that the persons entrusted with the administration of the affairs of the particular members of a confederacy [the federal government] will at all times be ready with perfect good humor and an unbiased regard to the public weal to execute the resolutions or decrees of the general authority. The reverse of this [expectation] results from the constitution of man." 216
Original Balance Between Federal Government and States
The separation of powers between the states and the federal government was designed to reinforce the principle of limited government. The federal government was supreme in all matters relating to its responsibility, but it was specifically restricted from invading the independence and sovereign authority reserved to the States. The Founders felt that unless this principle of dual sovereignty was carefully perpetuated, the healthy independence of each would deteriorate and eventually one or the other would become totally dominant. If the federal government became dominant, it would mean the end of local self-government and the security of the individual. On the other hand, if the states became dominant, the federal government would become so weak that the structure of the nation would begin to fractionalize and disintegrate into smaller units. Alexander Hamilton emphasized these views of the Founders when he wrote:
"This balance between the national and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights, they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits, by certain rivalship which will ever subsist between them." 217
Where Power Rivals Power
The Founders felt that by having a wholesome balance between the federal and state governments, the people would have recourse to one or the other in case of usurpation or abuse by either. Commenting further on this, Hamilton said:
"Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress." 218
Why the Founders Would Have Frowned on the 17th Amendment
But would the states be able to protect themselves from the might of the federal government if the Congress began legislating against states' rights? Originally, the states could protect themselves because U.S. Senators were appointed by the state legislatures, and the Senate could veto any legislation by the House of Representatives which they considered a threat to the rights of the individual states. Unfortunately, the protection of states' rights by this means was completely wiped out by the passage of the Seventeenth Amendment in 1913.
That amendment provided that Senators would thenceforth be elected by popular ballot rather than appointed by the state legislatures. This meant the states as sovereign commonwealths had lost their representation on the federal level, and their Senators would be subject to the same popular pressures during an election campaign as those which confront the members of the House of Representatives.
Since that time, there has been no veto power which the states could exercise against the Congress in those cases where a federal statute was deemed in violation of states' rights. The Senators who used to be beholden to their state legislatures for their conduct in Washington are now beholden to the popular electorate. Federal funds appropriated for a state are generally a source of popular acclaim, and Senators, like Congressmen, usually hasten to get them approved. Too often it has been of little consequence that those funds might be expended in violation of basic powers reserved to the state.
Sometime in the not-too-distant future, the people may want to take another look at the present trend and consider the advantages of returning to the Founders' policy of having state legislatures in the United States Senate. It might give us another generation of Senators like Daniel Webster, John Calhoun, and Henry Clay.
"Give me your tired, your poor, your huddled masses yearning to breathe free...." (Inscription on the Statue of Liberty)
Twentieth Principle: Efficiency and dispatch require government to
operate according to the will of the majority, but constitutional
provisions must be made to protect the rights of the minority.
"Give me your tired, your poor,
your huddled masses yearning to breathe free ..."
-- Inscription on the Statue of Liberty
One of the most serious mistakes in the structure of the Articles of Confederation was the requirement that no changes could be made without the approval of every one of the states. During the Revolutionary War several vital changes were suggested, but in each instance a single state was able to prevent the needed change from being adopted.
Basis for the "Majority" Rule
Problem of Securing "Unanimous Consent"
Majority Rule a Necessity
Minorities Have Equal Rights
Basis for the "Majority" Rule
Delaying action until it had the unanimous approval of all concerned can be disastrous in a time of emergency. It even inhibits healthy progress in normal times. Unanimity is the ideal, but majority rule becomes a necessity. The theory of majority rule was explained by John Locke as follows:
"When any number of men have ... consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude [bind] the rest....
"It being one body ... it is necessary the body should move that way whither the greater force carries it, which is the consent of majority, or else it is impossible it should act or continue one body....
"And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation to every one of that society to submit to the determination of the majority, and to be concluded [bound] by it." 219
Problem of Securing "Unanimous Consent"
John Locke then dealt with the problem of having to wait on unanimous decision before any action can be taken. He stated:
"For if the consent of the majority shall not in reason be received as the act of the whole ... nothing but the consent of every individual can make anything to be the act of the whole, which, considering the infirmities of health and avocations of business which ... will necessarily keep many away from the public assembly; and the variety of opinions and contrariety of interests which unavoidably happen in all collections of men, it is next [to] impossible ever to be had." 220
Majority Rule a Necessity
It has sometimes been argued that a bare majority of one person scarcely justifies the making of a final decision for the whole body. It has been argued that it would be better to have a substantial majority of perhaps two-thirds or three-fourths. In the Constitution a provision of this type was incorporated in the text for the purpose of initiating amendments. A two-thirds majority is also required for the purpose of overriding a Presidential veto. Nevertheless, this requirement was considered dangerous when applied to the routine business of the Congress. Alexander Hamilton explained it as follows:
"To give a minority a n
egative upon the majority (which is always the case where more than a majority is requisite to a decision) is, in its tendency, to subject the sense of the greater number to that of the lesser number.... The necessity of unanimity in public bodies, or something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto to the regular deliberations and decisions of a respectable majority....
"The public business must in some way or other go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority in order that something may be done must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good." 221
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