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JGR/Article on the Presidency, National Forum (4 of 7)
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118567576
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JGR/Article on the Presidency, National Forum (4 of 7)
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Records of the Office of Counsel to the President (Reagan Administration)
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Article on the Presidency,
National Forum (4 of 7)
Box: 4
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
ФКФ
Forum
THE PHI KAPPA PHI JOURNAL
Editor
Managing Editor
STEPHEN W. WHITE
ELAINE M. SMOOT
MEMORANDUM
TO:
Contributors to issue entitled "Toward the Bicentennial of the
Constitution"
FROM:
SWN
Stephen W. White, Editor, National Forum
SUBJECT:
Authors' copies
DATE:
August 22, 1984
In consideration of the exceptional articles submitted for the special
issue of National Forum entitled "Toward the Bicentennial of the
Constitution," Dr. Mark W. Cannon has suggested that authors might wish
to obtain additional courtesy copies above and beyond the twenty
normally allocated in the National Forum print order. If you can use
additional copies for conferences, seminars, teaching, other scholarly
activities, or in preparation for Bicentennial activities, you may have
access to as many as 300 copies of this issue.
You will find enclosed an order form that should be returned to our
offices no later than September 4, 1984. The return of this form will
allow us to send additional copies directly from the press to you in
October. A return envelope is provided for your convenience.
For your information, we also have enclosed a copy of the June 1984
issue of the Phi Kappa Phi Newsletter that features an article about the
Bicentennial issue. We thought that you would be interested in seeing
this article. Since this article was submitted for publication, Dr.
Gordon S. Wood has joined the list of authors. Also, in addition to The
Brown Foundation, Inc., and the Kettering Foundation, the following
foundations have contributed to the distribution of the issue: The
General Electric Foundation, The George Gund Foundation, The Mead
Corporation Foundation, and The Pfizer Foundation. In addition, Mead
Data Central has made possible the production and distribution of the
journal to the entire membership of the American Bar Association.
Thank you again for your contribution to this project. Honoraria checks
will be issued upon publication of the issue at the beginning of
October.
Enclosures: newsletter article, order form, table of contents
SWW/ems
BOX 19420A, EAST TENNESSEE STATE UNIVERSITY, JOHNSON CITY, TN 37614-0002
Phone: 615/929-5347
ORDER FORM
NAME:
SHIPPING
ADDRESS:
PLEASE SEND ME THE FOLLOWING NUMBER OF COPIES:
(limit: 300)
Please return this form to National Forum, Box 19420A, East Tennessee
State University, Johnson City, TN 37614-0002. This form should reach
our offices no later than September 4, 1984.
PRICE SCHEPVLE FOR
AUTHOR'S COPIES Mill REPRINTS
COPIES
(entire journal)
Poets and Book Reviewers: First 10 copies of journal
free
Authors: First 20 copies of journal
free
Each add'l copy of entire journal
$.65
*Please add 10% for postage and handling
I want
add'l copies of the journal.
$
10% for postage and handling
$
TOTAL:
$
NAME:
ADDRESS:
STATE:
Zip
REPRINTS
(article only)
When ordering reprints, you must order a minimum of 100. The price of reprints
is as follows:
First
Each Add'1
Pages
100
100
1-3
$35.00
$ 7.00
4-7
$70.00
$14.00
8-11
$90.00
$19.00
I want
reprints of the article
J
Price of reprints:
$
10% for postage & handling $
TOTAL:
$
NAME:
ADDRESS:
STATE:
Zip
lease make all checks payable to National Forum: Phi Kappa Phi Journal and mail to:
maging Editor, National Forum, Box 19420A, East Tennessee State Univ., Johnson City, TN 37614
Board Holds Spring Meeting in Indianapolis
The Board of Directors met in Indianapolis during March 29 - April 1 to receive reports of officer and
committee activities, review the 1983 Convention, formulate tentative plans for the 1986 Convention, and
conduct the necessary business of the Society.
Fellowship Committee
The Fellowship Committee reviewed applications of 166 chapter nominees for the 1984-85 Fellowship
Awards for the support of first-year graduate or professional study. Chapter participation in the fellowship
competition reached its highest point this year with 71% of the active chapters taking part. The Committee
recommended, and the Board approved that 51 of the nominees be awarded fellowships with stipends of
up to $4500 each, and that 29 nominees receive Honorable Mention Awards of $500 each. (Prior to this year
the stipend for the Honorable Mention Award was $200.) Fellowship winners will be listed and pictured in
the August Newsletter.
Again this year, in recognition of the increased costs of advanced education, Fellows will be permitted to
accept other financial awards so long as the total resources do not exceed anticipated first-year expenses.
With the Board's approval, the National Office will adjust fellowship stipends accordingly.
The Fellowship Committee is chaired by Dr. Ruth Patrick of Louisiana State University. Other members of
the committee are Dr. Lawrence Arney of Western Carolina University, Dr. Paul Bayless of Purdue
University and Dr. Richard Cummings of the University of Utah.
Extension Committee
PHI KAPPA PHI
The Extension Committee dis-
cussed a plan for new chapter devel-
opment, examined the status of cur-
ФКФ
NEWSLETTER
rently dormant chapters, and re-
viewed current procedures for eval-
uating new chapters. Supporting the
committee's recommendation, the
Board voted to disapprove one peti-
Published by the Honor Society of Phi Kappa Phi, Post Office Box 16000,
tion for a new chapter.
Louisiana State University, Baton Rouge, LA 70893
The Extension Committee is
Number 78
June 1984
chaired by Dr. Ann Nalley of Camer-
(Continued on page two)
National Forum
Toward the Bicentennial of the Constitution
In celebration of the two hun-
Walter F. Berns, Thomas P. O'Neill,
member of Phi Kappa Phi, and a
dredth anniversary of the writing of
Warren E. Burger, Orrin G. Hatch,
Ph.D. from Harvard University. In
the Constitution, The Honor Society
Tom Johnson, Wade H. McCree,
1964, Dr. Cannon served as presi-
of Phi Kappa Phi, in collaboration
Don K. Price, Betty Southard Mur-
dent of the Phi Kappa Phi chapter at
with The Brown Foundation of Hous-
phy, A. E. Dick Howard, David Math-
Brigham Young University in Provo,
ton, Texas and the Charles F. Ketter-
ews, Rita E. Hauser, Albert P. Blaus-
Utah.
ing Foundation of Dayton, Ohio,
tein, and William J. Bennett.
The issue, "Why Celebrate the
will be publishing a special issue of
Constitution? Toward the Bicenten-
National Forum entitled "Why Cele-
Dr. Mark W. Can-
nial of the Constitution" is sched-
brate the Constitution? Toward the
non, Administrative
uled to be released from press in
Bicentennial of the Constitution." It
Assistant to the
October of 1984. In addition to its dis-
is intended that this issue will fresh-
Chief Justice of the
tribution to all active members of Phi
en citizen appreciation for and un-
United States, will
Kappa Phi, a limited number of cop-
derstanding of the Constitution of
act as guest editor
ies will be distributed to other organ-
the United States: its origins, values,
for this special sym-
izations and individuals interested
and framework for governmental
posium issue of Na-
in utilizing copies in their bicenten-
process.
tional Forum. Dr.
nial activities. Besides the support
The issue will be divided into
Cannon is an in-
provided by The Brown Foundation
three sections: Celebrating the Con-
sightful observer of the administra-
and the Charles F. Kettering Foun-
stitution (Part I), Retrospective and
tion of justice and will soon release
dation, on March 31 the Board of
Prospective Views of the Three
with David O'Brien a book entitled
Governors of the American Bar Asso-
Branches (Part II), and Enduring Val-
Views from the Bench: The Judiciary
ciation approved a resolution of the
ues and Free Government (Part III).
and Constitutional Politics. Dr. Can-
Commission on Public Understand-
Contributors to the issue include:
non received a B.A. from the Uni-
ing About the Law cosponsoring the
Ronald Reagan, Richard B. Morris,
versity of Utah, where he was a
special issue on the Bicentennial of
(Continued on page two)
Page Two
June 1984
Phi Kappa Phi Newsletter
Board
15.5% money market notes. Seven-
zation of five regions as approved by
ty-one percent of the bond holdings
the Convention. "Fine-tuning" or
(Continued from page one)
are rated AAA, with only five per-
minor changes in the regions will be
cent rated below A. Ninety-four per-
finalized by the Board at the October
on University. Other members of
cent mature within 10 years.
meeting. The new regional organi-
the committee are the Regional Vice
After considerable discussion of
zation will become effective at the
Presidents: Dr. James T. Barrs, East-
the investment policies and guide-
1986 Convention, with the following
ern Region; Dr. John W. Warren,
lines, the committee recommended
regions: Northeastern Region, South-
East Central Region; Dr. Dorothy
no changes at this time.
eastern Region, North Central Re-
Truex, West Central Region; and
The Investment Committee is
gion, South Central Region, and
Mrs. Mildred Johnson, Western Re-
chaired by Mr. Aaron M. Lynch
Western Region.
gion.
(CPA) of the University of North
Vice presidents to serve these re-
Alabama. Other members of the
gions will be elected by the chapters
Investment Committee
committee are Dr. Elaine Joyce Pilon
within these regions during the
The Investment Committee met
of the University of Minnesota, Dr.
Spring of 1986. They will take office
most of Thursday, March 29, with
Leslie Thompson of Georgia South-
at the close of the 1986 Convention.
the Society's investment counselors.
ern College, Dr. Kenneth Munford,
The counselors, Mr. Bill Finley and
past national president of the Society
1986 Convention
Mr. Bill Hart of the Continental Illi-
from Oregon State University and
The Board reviewed the delegate
nois National Bank in Chicago, pre-
Dr. George L. Robertson, executive
evaluations of the 1983 Convention
sented written and oral reports of
director of the Society.
and the report of the recently ap-
their analysis of recent economic
pointed committee of correspond-
developments and explained their
Budget Committee
ence on the Improvement of the
investment philosophy for the Soci-
The Budget Committee reviewed
National Convention Format. Presi-
ety's accounts. They discussed in
projected expenditures for the cur-
dent Walter V. Hohenstein appointed
some detail each buy-and-sell trans-
rent year and approved minor revi-
a Board Sub-committee on Conven-
action indicating their reasons for
sions in the 1984-85 annual budget
tion Planning to include Dr. Truex,
each decision.
within the limits of the Triennial
chair; Dr. Roger Yoerger and Dr.
Budget approved by the 1983 Con-
Nalley. This committee will bring its
The February 29 market value of
vention.
recommendations concerning the
investments was as follows:
1986 Convention Format to the Board
Regional Boundaries
in October.
Foundation
1,325,161
The Board considered the organi-
(Continued on page three)
Life Membership Fund
590,665
Total
1,915,826
President's Corner
by Dr. Walter V. Hohenstein
The total portfolio consists of 29.9%
common stocks, 54.6% bonds and
In this issue, I will continue to discuss the new committees appointed to
deal with problems our Society now faces.
Bicentennial
The recommendations of the Committee on Increasing Numbers of
(Continued from page one)
Members Remaining Active will play a central role in strengthening our
Honor Society. The desirability of adding services for our members will be
the United States Constitution.
considered. How we can become more effective in delivering our present
Dr. Stephen White, editor of the
services will also be reviewed. If you have any suggestions, please write to
National Forum,
the Chair:
made the following
Carolyn Jacobson
comments: "An is-
Gettysburg College
sue like this reflects
Gettysburg, PA 17325
the interest of the
Society in stimulat-
The Committee on Development of a Manual for Planning Regional
ing interdisciplin-
Meetings will develop a guide for mid-triennial meetings. Any ideas
ary analyses of im-
should be sent to the Chair:
portant historical
Ben Ricci
and contemporary
615 Bay Road
issues, including
Amherst, MA 01003
those basic ideas
which provide the framework for
A Library Standards Committee has also been appointed to review
this nation's most important public
library requirements for institutions wishing to petition for a Phi Kappa Phi
documents. Hopefully, it will en-
chapter. If you have recommendations, please write the Chair:
courage our members and a broad-
Martha Owens Booth
er audience to examine the ways in
Box 1006
which they personally can join in the
Mississippi State University
appreciation and celebration of this
Mississippi State, MS 39762
unique achievement."
Phi Kappa Phi Newsletter
June 1984
Page Three
Board
nessee, was almost ready to go to the
Scholar and Artist Committees
(Continued from page two)
printer. It should be available for
Dr. Hohenstein indicated his intent
distribution during the fall of 1984.
to expand the Scholar and Artist
Honorary and Distinguished
Dr. Hohenstein announced his in-
Selection committees during this tri-
Members
tent to appoint a new Society Histori-
ennium to assist with the selection
The Board reviewed the list of
an to prepare the next update to be
of the Scholar and the Artist to be
Honorary and Distinguished mem-
published in 1997 - the centennial
honored at the 1986 Convention. He
bers approved since the previous
anniversary of the Society. Early ap-
requested nominations of one new
Board Meeting. (See the story below
pointment would enable the new
member from each Region for each
for a listing of the Honorary and Dis-
historian to collect pertinent mater-
Committee. Members who desire to
tinguished Members approved in
ial between now and the writing of
serve or make nominations for these
the last year.)
the next update. Society members
committees should contact Dr.
who desire to be considered for the
Hohenstein.
Society History
appointment as Society Historian
should contact Dr. Walter V. Hohen-
Chapter Officer Workshop
The Board was pleased to learn that
stein, Director of Articulation, Cen-
the updated history of the Society
Chapter officers of 16 chapters
by Professor Neal O'Steen, Society
tral Administration, University of
within 4-5 hours driving time of
historian from the University of Ten-
Maryland, Adelphi, MD 20783.
Indianapolis were invited to join the
(Continued on page four)
Honorary and Distinguished Memberships Granted
In the past year the Board of
the University of California-Davis,
Directors has approved Honorary
nominated by the University of Cali-
Distinguished Members
Membership for thirteen persons
fornia-Davis Chapter; Dr. Ernest
Those persons elected to Distin-
and Distinguished Membership for
Gaines, internationally renowned
guished Membership were: Dr. Bob
seven persons.
novelist and short story author, whose
J. Davis, retired professor and direc-
Honorary Membership is awarded
works include The Autobiography
tor of executive development in the
to a non-member who has achieved
of Miss Jane Pittman and A Gather-
College of Business at Western Illi-
eminence in some field of academic,
ing of Old Men, nominated by the
nois University, nominated by the
creative or intellectual endeavor.
University of Southwestern Louisi-
Western Illinois University Chapter;
Distinguished Membership is
ana Chapter; Dr. Geoffrey Kemp,
Dr. Arthur W. Farrall, renowned agri-
awarded to a member of Phi Kappa
who serves on the National Security
cultural engineer and executive sec-
Phi who has served society in some
Council as director for Near East and
retary of the Michigan State Univer-
outstanding manner.
South Asian Affairs, nominated by
sity Chapter of the Society, nominat-
the United States Military Academy
ed by the Michigan State University
Honorary Members
Chapter; Dr. John Messick, presi-
Chapter; Dr. Frances Lomas Feld-
The following persons were elect-
dent emeritus of East Carolina Uni-
man, who has had a distinguished
ed Honorary Members: The Honor-
versity and former dean and execu-
career in the field of social work and
able Lamar Alexander, governor of
tive vice president at Oral Roberts
served as president of the USC Chap-
the State of Tennessee, nominated
University, nominated by the East
ter of Phi Kappa Phi, nominated by
by the Tennessee Technological Uni-
Carolina University Chapter; Dr. W.
the University of Southern Califor-
versity Chapter; Maestro Maurice
Ann Reynolds, chancellor of the
nia Chapter; Dr. Porter L. Fortune,
Abravanel, music director of the Utah
California State University-Long
Jr., chancellor of the University of
Symphony for 32 years, nominated
Beach, nominated by the California
Mississippi, nominated by the Uni-
by the University of Utah Chapter;
State Polytechnic University-Pomona
versity of Mississippi Chapter; Dr.
The Honorable William J. Bauer,
Chapter; Professor Ruth Slenczynska,
Ormsby L. Harry, assistant chancel-
Judge of the United States Court of
internationally acclaimed concert pi-
lor for student affairs and dean of
Appeals for the Seventh Circuit, Chi-
anist (who is celebrating her 50th
students at the University of Wiscon-
cago, IL, nominated by the Elmhurst
anniversary as a concert pianist),
sin-Eau Claire, who was instrumen-
College Chapter; Dr. Ernest L. Boyer,
nominated by the Southern Illinois
tal in establishing Honors Week on
president of the Carnegie Founda-
University at Edwardsville Chapter;
his campus, nominated by the Uni-
tion for the Advancement of Teach-
Mr. Samuel P. Szor, director of the
versity of Wisconsin-Eau Claire; Dr.
ing and former United States Com-
Perrysburg (OH) Symphony Orches-
Walter V. Hohenstein, national pres-
missioner of Education, nominated
tra, the Toledo Choral Society and
ident of The Honor Society of Phi
by the University of Maryland Chap-
conductor and music director of
Kappa Phi and director of articula-
ter; Mrs. Hillary Rodham Clinton,
Toledo's "Music Under the Stars"
tion, Central Administration, Univer-
distinguished attorney, legal scholar
summer concert series, nominated
sity of Maryland, nominated by the
and first lady of the State of Arkan-
by the University of Toledo Chapter;
University of Maryland Chapter; and
sas, nominated by the University of
and Dr. Howard A. Tanner, former
Mr. Cesar Enrique Aguinaldo Virata,
Arkansas at Little Rock Chapter; Dr.
director of the Michigan Department
minister of finance of the Philip-
Faith Fitzgerald, chief of the Division
of Natural Resources; nominated by
pines, nominated by the University
of General Medicine and vice-chair
the Michigan State University Chap-
of Philippines Chapter.
of the Department of Medicine at
ter.
Page Four
June 1984
Phi Kappa Phi Newsletter
Board
ports on all investment accounts and
ducted by Professor Jim Files of
discussed further plans for the prepa-
NAU, is expected to be completed
(Continued from page three)
ration of a revised fund-raising bro-
during the summer of 1984.
chure. Dr. Barrs, president of the
Foundation, appointed a Foundation
Chapter Notes
Board on Saturday, March 31, for
Brochure Committee to include Dr.
lunch to be followed by a chapter
Patrick, chair, Dr. Yoerger and Dr.
officer informational workshop. Sev-
Stephen W. White.
University of Louisville
eral institutional chapters and the
A discussion of the possible re-
Joan Seitz Pate, a special trial judge
Indianapolis Alumni Chapter were
structuring of the Foundation was
with the United States Tax Court,
represented during the afternoon of
deferred until the Correspondence
was the featured speaker at the May
lively discussion. Plans are being
Committee on Review of the Bylaws
initiation of the University of Louis-
made to conduct another chapter
completes its work.
ville. Ms. Pate, the newest member
officer workshop in connection with
of the Tax Court, was appointed to
the fall meeting of the Board in
Other Committees
the office in September of 1983.
Baton Rouge during the last week of
The Board received written reports
Prior to joining the Tax Court, she
October 1984.
of the activities of the Communica-
was an attorney and director with
tions Committee and the Journal
the Louisville law firm of Goldberg &
Speakers List
Advisory Committee. These commit-
Simpson, P.S.C.
Dr. Hohenstein appointed a com-
tees are expected to meet in con-
Ms. Pate has been recognized by
mittee composed of Dr. Nalley, chair,
nection with the October Board
the Order of the Coif, Arizona Law
Dr. Barrs and Mrs. Johnson to con-
meeting. The Communications Com-
Review; Arizona Society of Certified
sider developing a "Speakers List"
mittee is chaired by Dr. Lela Edwards
Public Accountants; Phi Kappa Phi;
as a source of information to chap-
of Texas A & M University and the
and she was elected to represent
ters.
Journal Advisory Committee is
Kentucky at the White House Con-
chaired by Dr. Ray Newton of North-
ference on Small Business. She has
Phi Kappa Phi Foundation
ern Arizona University. Dr. Newton
published material in the Arizona
Trustees of the Phi Kappa Phi
reported that the National Forum
Law Review and the Louisville Law-
Foundation reviewed financial re-
readership survey, now being con-
yer.
Rudolph Michael of Blacksburg, VA, right, receives a plaque for his
Dr. John J. McDow, immediate past president of Phi Kappa Phi,
many years of service to Phi Kappa Phi from John J. McDow, past
right, presents a National Officer Distinguished Service Award to
president of the Society. Dr. Michael, who headed the former
Dr. Charles Davis, a past president of the Society and president
department of agricultural information at Virginia Tech, received
emeritus of Winthrop College. The presentation was made at the
the award for being the editor of The Phi Kappa Phi Journal for 22
Winthrop College Chapter's fall initiation held in December 1983.
years. Mrs. Michael, center, was also present at the award ceremony.
PHI KAPPA PHI NEWSLETTER
Non-Profit Organization
Dr. George L. Robertson, Executive Director
U.S. POSTAGE
The Honor Society of Phi Kappa Phi
Post Office Box 16000
PAID
ADRIAN, MICHIGAN
Louisiana State University
Permit No. 117
Baton Rouge, LA 70893
National Forum: Bicentennial issue
TABLE OF CONTENTS
"Toward the Bicentennial of the Constitution"
Mark W. Cannon
Why Celebrate the Constitution?
Section I: The American Constitution in History
Gordon S. Wood
The Intellectual Origins of the
American Constitution
Richard B. Morris
Creating and Ratifying the Constitution
Albert P. Blaustein
The United States Constitution
A Model in Nation Building
Section II: Perspectives on the Three Branches
Thomas P. O'Neill, Jr.
Congress: The First 200 Years
Ronald W. Reagan
The Presidency: Roles and Responsibilities
Warren E. Burger
The Judiciary:
The Origins of Judicial Review
Section III: Constitutional Issues and Contemporary America
Walter Berns
Do We Have a Living Constitution?
Orrin G. Hatch
Civic Virtue: Wellspring of Liberty
Wade H. McCree, Jr.
Civil Liberties and Limited Government
A. E. Dick Howard
The Constitution and Free Expression
Tom Johnson
A Publisher Reflects on Freedom of the Press
David Mathews
"We the People
"
Betty Southard Murphy
The Commercial Republic
And the Dignity of Work
Don K. Price
Science, Technology, and the Constitution
Rita E. Hauser
The Constitution and National Security
Putting Parchment Into Practice
William J. Bennett
How Should Americans Celebrate
the Bicentennial of the Constitution?
1
Supreme Court of the United States
Washington, D. 4. 20543
ADMINISTRATIVE ASSISTANT TO
THE CHIEF JUSTICE
September 7, 1984
Mr. John G. Roberts
Associate Council to the President
106 Old Executive Office Building
Washington, D.C. 20500
Dear John:
It was good to talk to you. As per
your request, I am enclosing a copy of the
National Forum page proofs.
We will send 320 copies of the final
magazine directly to Fred Fielding's office.
If you need more, please notify me and I
will obtain them for you.
Sincerely,
Mark mark W. Cannon
Enclosure
74200823
NAF-MAG
CN1631:15 08.07:38
sandra (cov1-captions,
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001382 00:35.6
000004 00:00.7
15-AUG-84 12:42:26
National Forum
NATIONAL
Forum
THE PHI KAPPA PHI
JOURNAL
FALL
1984
TOWARD THE
BICENTENNIAL
THE
ICONSITUTION
GUEST EDITED BY MARK W. CANNON
WITH WILLIAM J.
BENNETT
WALTER BERNS
ALBERT P.BLAUSTEIN
WARREN
E. BURGER
ORRIN G. HATCH
RITA E. HAUSER
A.E. DICK
HOWARD
TOM JOHNSON
DAVID MATHEWS
WADE
H. McCREE, Jr.
RICHARD B. MORRIS
BETTY SOUTHARD
MURPHY
THOMAS P. O'NEILL, Jr.
DONK. PRICE
RONALD
W. REAGAN GORDON S. WOOD
COSPONSORED BY THE AMERICAN BAR ASSOCIA ION
Cour
8-23-84
TAPE-MAG
RANDY :14/08,11:37
-don160-aa-jh
005044 capx
000649 01:26.2
000457 01:26.0
14-AUG-84 11:48:55
EDITORIAL BOARD
ФКФ
Russell P. Balda
Victor C. Ferkiss
Richard Marius
Louis N. Bass
Samuel Gorovitz
David Mathews
Gray D. Boone
Robert L. Green
Ralph Carlisle Smith
Richard O. Davies
Hazel Henderson
Donald E. Stanford
Dudley Dillard
Edward A. Kolodziej
Charles J. Stokes
Board of Directors
Rita Dove
F. Wilfrid Lancaster
Barbara Uehling
President
ASSOCIATE EDITORS
WALTER V. HOHENSTEIN
Director of Articulation
Central Administration-
University of Maryland
George W. Bright
R. Lee Hornbake
Adelphi, MD 20783
CONTRIBUTING EDITORS
National Vice President
ILONA HERLINGER
John Diebold
E. K. Fretwell
Jack E. Reese
School of Music
University of Puget Sound
Robben W. Fleming
Leland Miles
Arliss L. Roaden
Facema. WA 98416
EDITORIAL CONSULTANTS
Vice President-Eastern exion
JAMES T. BARRS
Frances Chivers
David Dye
Walter V. Hohenstein
Department of English. 170-UR
Northeastern University
English
Speech and Drama
Administration
Boston, MA 02115
Duquesne University
Troy State University
University of Maryland
Vice President--East Central Region
Robert McClure
Ray Newton
JOHN W. WARREN
Department of English
Veterinary Medicine
Journalism
Tennessee Technological University
University of Missouri
Northern Arizona University
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COVER II
8-23-84
Dear Citizen:
The Honor Society of Phi Kappa Phi, the Commission on Public Understanding About the Law
of the American Bar Association, and Mead Data Central invite you to peruse, discuss, and enjoy this
special issue of National Forum on the Bicentennial of the Constitution. Assembled here are articles by
seventeen knowledgeable authors of diverse backgrounds. Each author brings unique qualifications to
the examination of different aspects of the Constitution-its history, its significance, and the contempo-
rary issues surrounding it.
Why are you receiving this special issue? The Honor Society of Phi Kappa Phi, the American Bar
Association, and Mead Data Central undertook this project to stimulate interest in the upcoming
celebration of the Bicentennial of the United States Constitution. We seek to reach civic-minded citizens
likely to influence the planning and implementing of Bicentennial programs and festivities by national
and community organizations. We hope you will retain and share this issue of National Forum as a
resource and guide for the Bicentennial projects ahead.
We would also like this issue to reach students across the country and abroad. Civic education is one of
the most important charges we as a society must undertake. Familiarizing the youth of the country with
our charter of government is vital, and this issue should advance the cause.
This issue of National Forum is being widely disseminated through the generous support of The
Brown Foundation, Inc., the General Electric Foundation, The George Gund Foundation, the
Kettering Foundation, The Mead Foundation, and The Pfizer Foundation. Mead Data Central has
made possible the printing and distribution of the journal to the membership of the American Bar
Association. The contributions of these organizations exemplify the civic activity needed to make the
Bicentennial celebration successful.
We hope that you will enjoy this issue and gain a greater appreciation of the historical and
contemporary significance of our Constitution. We hope that these articles will stimulate you to become a
scholar of the Constitution and to consider how its core of enduring principles relates to contemporary
problems. For when we know more about the consensus and compromise that the Constitution
embodies, more about the concerns that led to the Bill of Rights, and more about how power is used and is
checked and balanced among the branches of government-we will strenghthen our appreciation of how
fragile participatory government and ordered liberty are in the absence of a written constitution
supported by committed and often heroic citizens.
The approach of the 200th anniversary of our Constitution in 1987 provides an appropriate
opportunity to examine fundamental questions about its creation and implications. What were the
central ideas of the Constitution? How was it written and adopted? Why did it help unleash such creative
energy in science, technology, education, entrepreneurship, religion, government, and the arts? What
elements are of enduring importance? What changes, if any, might be considered?
To supply thoughtful Americans with information and ideas as a point of departure for reflecting on
our past and future as a nation, the Board of Directors of The Honor Society of Phi Kappa Phi, with great
enthusiasm, decided in 1983 to support the production of a special issue of National Forum. The guest
editor of this issue, Mark W. Cannon, secured commitments from a broad array of public leaders and
scholars, many of whom possess what Woodrow Wilson called "the air of affairs" and understand the real
workings of government. These people were encouraged to write broadly and to avoid professional
jargon. Their views are solely their own and not necessarily those of National Forum, the American Bar
Association, Mead Data Central, or the other contributing organizations. Although the list of authors
includes some of the busiest persons in America, all were pleased and honored to join in this important
project. Those who worked to produce this issue hope that it will generate wider celebration of the events
surrounding the creation of our pioneering Constitution. We dedicate this issue to future generations.
President, The Honor Society
President, the American
President, Mead Data Central
of Phi Kappa Phi
Bar Association
Maik W. Bannon Guest Editor
Editor, National Forum:
The Phi Kappa Phi Journal
VAL1 09.08.16:35
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74200823-NAF-MAG
09-AUG-84 16:43:24
NATIONAL
THE PHI KAPPA PHI
JOURNAL
Forum
FALL
1984
Volume LXIV
Number 4
Toward the Bicentennial of the Constitution
Mark W. Cannon
3
Why Celebrate the Constitution?
Section I: The American Constitution in History
Gordon S. Wood
5
The Intellectual Origins of the American Constitution
Richard B. Morris
9
Creating and Ratifying the Constitution
Albert P. Blaustein
14
A Model in Nation Building
Section II: Perspectives on the Three Branches
Thomas P. O'Neill, Jr.
18
Congress: The First 200 Years
Ronald W. Reagan
22
The Presidency: Roles and Responsibilities
Warren E. Burger
26
The Judiciary: The Origins of Judicial Review
Section III: Constitutional Issues and Contemporary America
Walter Berns
29
Do We Have a Living Constitution?
Orrin G. Hatch
34
Civic Virtue: Wellspring of Liberty
Wade H. McCree, Jr.
39
Civil Liberties and Limited Government
A. E. Dick Howard
41
The Constitution and Free Expression
Tom Johnson
44
A Publisher Reflects on Freedom of the Press
David Mathews
46
"We the People
Betty Southard Murphy
49
The Commercial Republic
Don K. Price
53
Science. Technology. and the Constitution
Rita E. Hauser
57
The Constitution and National Security
William J. Bennett
60
Celebrating the Bicentennial of the Constitution
Photographs in this issue courtesy of: Collection of Business Americana, National Museum of American History,
Smithsonian Institution: Office of the Curator, Supreme Court of the United States: and the Library of Congress.
stet
The views expressed in this publication do not necessarily agree with those of the publisher or the Board of The Honor Society of Phi
Kappa Phi.
National Forum: Phi Kappa Phi Journal is indexed in PAIS Bulletin, Philosopher's Index, Current Index to Journals in Education,
Sociological Abstracts, Book Review Index, Management Contents. Also available in microfiche form from University Microfilms
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Other communications should be addressed to the proper official: see roster of national officers opposite.
2 PHI KAPPA pill JOURNAL
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Mark W. Cannon
W1
hy Celebrate the
Constitution?
W
hy celebrate the Constitution?" Why
celebrate a yellowed, 200-year-old
piece of parchment with faded print?
Why bother? We should bother because we cannot
afford to let the Constitution become confined to that
category of "our hallowed past. We should celebrate
the Constitution not only for its role in American
history. but for its significance to modern government.
its pivotal place in the American psyche, and its role in
the continuation of our personal freedom. Now is the
time to realize the Constitution's great impact upon our
ered to be the only sound basis for such a government-
individual and collective lives.
a written constitution. Chief Justice John Marshall did
Few things endure 200 years. No other constitution
not hesitate to speak for all Americans when, in Mar-
has lasted so long. A comparison of the longevity of the
bury 1. Madison, he referred to a written constitution as
American Constitution with that of the constitutions of
"the greatest improvement on political institutions." In
other countries provides some basis for our apprecia-
more recent times. Max Lerner. author of America As a
tion. Nearly two-thirds of the world's 160 national
Civilization. has attributed much of the success of the
constitutions have been adopted or revised since 1970.
document to "word-magic" reverence for things
and only 14 predate World War II. It has been calculat-
written. The Constitution is a tangible and visible
ed that 53.5 percent of the independent states of the
symbol of the things that people hold dear. Moreover,
world have been under more than one constitution since
the document reminds us that our government is one of
the Second World War. The average nation has had two
law. not of men. By having a written document. the law
constitutions since 1945. and two states. Syria and
seems less mutable. less vulnerable to the whims of
Thailand, have each had nine constitutions over the
individuals. The Constitution thus symbolizes the idea
past forty years! These figures dramatically illustrate
of the rule of law.
the precarious existence of a constitution. By these
Having representatives of the people put words to
standards, the Constitution of the United States has
parchment was a new concept in constitutional develop-
proven remarkably durable.
ment: but having a written constitution does not in itself
Perhaps one reason for its continuing importance in
guarantee acceptance. Ratification by the people of the
our lives is that the Constitution is a revolutionary
states gave the Constitution legitimacy-a major reason
work. Drawing upon the lessons of history and their
for its long life. It has cultivated what Justice Samuel
understanding of human nature. the Founders crafted a
Miller described as an "inborn and native regard for the
bold. masterful document. Thomas Jefferson, for one.
law" among Americans. This respect for law stems
observed "that up until the American Republic. it was
from the awareness that the Constitution, and the
possible to say that nothing was ever new, but. in fact.
government under law established by it. were created
the new American Republic was new." We often pay
by the people to secure their safety and happiness. The
tribute to "firsts" in this country-to breakthroughs in
science. in sports, in space technology and exploration,
and in the arts. Our Bicentennial is an occasion for
MARK W. CANNON has served as the administrative
celebrating our Constitution as a breakthrough in creat-
assistant to the chief justice of the United States for the
ing an energetic government that would be restrained
past twelve years. Formerly the director of the Institute
from using its powers to subjugate the citizens.
of Public Administration in New York and chairman of
The new nation was understood by its architects as
the department of political science at Brigham Young
unique primarily because of its dedication to the univer-
University, he has worked in the House of Representa-
sal principles of justice announced in the Declaration of
tives and the Senate. Mr. Cannon has published widely
Independence. To fulfill the lofty demands of those
and has coauthored The Makers of Public Policy:
principles, the Founding Fathers enshrined republican
American Power Groups and Their Ideologies and the
self-government as the quintessentially American form
upcoming Views from the Bench: The Judiciary and
of government, and they did so upon what they consid-
Constitutional Politics (Chatham House, 1984).
NATIONAL FORUM 3
8-23-84
democratic ratification process of 1787-88 and the pro-
Constitution. the Englishman William Gladstone wrote:
vision for popular amendment testify that the authority
"I have always regarded that Constitution as the most
and legitimacy of our Constitutional order derive from
remarkable work known to me in modern time to have
"We the People.' American support for law also de-
been produced by the human intellect at a single stroke
rives from what jurisprudent Lon Fuller refers to as an
(so to speak) in its application to political affairs." His
"inner morality" in the law. By learning to observe
words ring true 100 years later.
rules for public life that are promulgated (not secret),
that are prospective (not ex post facto), that are consis-
group). Americans generally have come to expect that
T
he Constitution is certainly worthy of praise and
tent. and that apply to everyone (not just a select
salute. Why celebrate it. though? Celebration is
one way to get people enthusiastic about and in
laws will conform to these safeguards.
touch with our heritage. It unites the country, and it
Plato argued that a polity should have a myth sur-
inspires interest and pride. In 1976. despite preoccupa-
rounding its founding, an inheritance that could be
tion with societal malaise. the celebration of the Bicen-
passed to future generations to unite them behind a way
tennial of the Declaration of Independence nevertheless
of life. The virtually miraculous creation and adoption
stimulated over 5000 programs and festivities.
of the Constitution blend with legend to be part of the
These projects did more than focus upon the Declara-
cultural inheritance and inspiration passed on to each
tion of Independence: they celebrated American life.
new generation of Americans. Because of the legitima-
Indeed. very few projects in 1976 were intended primar-
cy of the Constitution and the perpetuation of this
ily to "educate." But the end result was. in varying
legitimacy, disagreement has almost always occurred
degrees, education-not only of schoolchildren, but of
within the American political system. not about that
all Americans. However successful the Declaration
system. In celebrating the Constitution. we celebrate
Bicentennial was. several things can and should be done
our rich history and the ideals that have allowed us to
differently from 1987 to 1989. The Constitution Bicen-
flourish as a people.
tennial celebration should be more than tall ships and
The most tragic exception to the extraordinary mod-
medallions. It should be a cerebration with greater
eration of American politics was the Civil War-a
emphasis on civic education.
struggle for the soul of the American political order. It
R. Freeman Butts. the William F. Russell Professor
required the genius of Abraham Lincoln to convince
Emeritus at Columbia University, is a prominent advo-
friends of democracy of the irreconcilable contradiction
cate of civic education in the Bicentennial era. He
between human slavery and American principles of self-
believes that "the fundamental ideas and values upon
government. The Framers of the Constitution would no
which our Constitutional order is built should be the
doubt have regarded Lincoln's leadership of the Union
core of sustained and explicit study
carried on
as a providential event in world history, for it rescued
throughout the school years from kindergarten through
their work from the opprobrium of slavery by emphasiz-
high school.' Butts is part of a great tradition of
ing the primacy of freedom for all.
Americans concerned about education of the citizen.
What is particularly remarkable about our Constitu-
"If we think them not enlightened enough to exercise a
tion is that its words have meaning. As William G.
wholesome discretion." wrote Thomas Jefferson, "the
Andrews writes in Constitutions and Constitutionalism:
remedy is not to take it from them. but to inform their
Many regimes in the world today have constitutions without
discretion by education."
constitutionalism. Tyrants. whether individual or collective.
Today. many Americans are appallingly ignorant of
find that constitutions are convenient screens behind which
the workings of law and government. They are unfamil-
they can dissimulate their despotism
Provisions that
iar with the Constitution and the rights. duties. and
seem to be restraints can be employed to rationalize the
powers it confers. To be sure. it is easy to lose interest
arbitrary use of power.
in a 200-year-old document. Yet. "informing popular
Some of the most repressive totalitarian regimes have
discretion" is as important now as ever. Mark H.
had showcase constitutions that failed to protect the
Curtis. President of the Association of American Col-
people.
leges, has made a most imaginative proposal:
In contrast to the preponderance of constitutions
Though we are only inheritors of the Constitution and not
around the world. the American Constitution does have
makers of it. the continuation of orderly government under the
meaning and continues to govern the political life of our
Constitution requires not only our tacit assent but also our
nation. The ultimate source of governing authority in
active participation in accepting the duties as well as the rights
the United States-the American people-remains at-
which we derive from it. If it were possible. it could be more
tached to the Constitution as the "supreme Law of the
than symbolic to have all persons upon reaching voting age
Land." and to the principles of equality before the law
sign a document of ratification to signify that they understand
which inform the language of that Constitution. The
the principles of the Constitution and accept the rights and
Bicentennial celebration is not only a time to salute the
responsibilities it bestows upon them.
designers of "the grandaddy of constitutions." but also
Although this idea may not be completely feasible, it
a time to appreciate that we and our forebears have
does conceptualize a solution. By making the Constitu-
remained faithful to our constitutional heritage through
tion more immediate in our lives. we can prevent it from
changing times. needs, and circumstances.
becoming "ancient history.' This Bicentennial offers
Why celebrate the Constitution? It was a remarkable
an opportunity to bring the Constitution into our con-
success. On the occasion of the Centennial of the
temporary understanding. which is perhaps the most
continued on page 13
4 PHI KAPPA PHI JOURNAL
8-23-84
DIS
Gordon S. Wood
T
he Intellectual Origins of the
American Constitution
he Constitution was created at a stroke in the
T
questions of political philosophy and theory. On the
summer of 1787. but its intellectual origins and
contrary, they were men intensely interested in ideas
sources, like those of all great events, reached
and especially concerned with making theoretical sense
back deep into the past. The Constitution has been
of what they were doing. They were participants in a
described as the climax of the Enlightenment-that
rich. dynamic political culture that helped determine the
great eighteenth-century attempt to apply the results of
nature of the Constitution they created. Understanding
Western science and learning to human affairs. As the
the Constitution requires an understanding of that polit-
product of Western "enlightened" thinking, the Consti-
ical culture.
tution could scarcely have sprung simply from a sum-
mer's meeting. Its sources have often seemed to be the
T
he most pervasive characteristic of that political
whole of previous history. No thinker. no idea, has
culture was republicanism. a body of ideas and
been too remote, too obscure, to have been involved
values so deeply rooted that it formed the pre-
somehow in the making of the Constitution. Thus
suppositions of American thinking. This body of
historians and political theorists have rummaged
thought not only determined the elective political sys-
through the past looking for the particular philosopher
tem the Founders believed in: it also determined their
or book that might have especially influenced the Fram-
moral and social goals. To become republican was what
ers of the Constitution. Some have seized on the
the American Revolution had been about.
Englishman John Locke: others. the Frenchman Mon-
It is difficult for us today to appreciate the revolution-
tesquieu: still others. the Scot David Hume or the Swiss
ary character of this civic culture. We live in a world in
Burlamaqui: and some have even made a case for the
which almost all states purport to be republican: even
ancient Greek Polybius. But not one of these was the
those few states such as Britain or Sweden that remain
sole source of the thinking of the Founding Fathers.
monarchies are more republican in fact than some
Thus searching for one key person in order to explain
others that claim to be in theory. But in the monarchy-
the Constitution is doomed to futility. Influence on
dominated world of the eighteenth century, republican-
something as monumental and as collectively created as
ism was not so widespread or acceptable. It was then a
the Constitution does not work in such a simple and
radical ideology; indeed, this body of civic thought was
direct way. The writings of Locke, Montesquieu,
to the eighteenth century what Marxism was to be for
Hume. Burlamaqui, and even Polybius were all impor-
the nineteenth century. For the eighteenth century
tant to the creation of the mental world of Americans in
republicanism was a countercultural ideology of pro-
the 1780s. But so too were the works of countless other
test. an intellectual means by which dissatisfied people
thinkers. All formed virtually inseparable aspects of the
could criticize the luxury. selfishness, and corruption of
Americans' political culture. To be sure. the Founders
monarchical culture.
often referred to this book or that philosopher in their
It is not surprising, therefore, when eighteenth-centu-
speeches and writings: indeed, they cited and quoted
ry Americans and Frenchmen alike decided upon revo-
from every conceivable source available to an educated
lution that they should have repudiated royal authority
man in the eighteenth century-from Plutarch to Pufen-
and erected republics in its place. Republicanism was
dorf. from Cicero to Blackstone, from Plato to Rous-
the ideology of the democratic revolutions of the late
seau. But so many sources were cited so promiscuous-
eighteenth century: it was the ideology of the people
ly. it is difficult to perceive the dominant influence of
against monarchs and hereditary aristocracies. Even
any one.
the English who held on to their king and their House of
This does not mean, however, that there were no
intellectual influences affecting the thinking and actions
of the Framers of the Constitution. Although isolating
GORDON S. WOOD is chairman of the department of
the influence of any one thinker on the Founding
history at Brown University. He is the author of The
Fathers may be impossible, describing the currents of
Creation of the American Republic, 1776-1787, for
the political culture in which they were immersed in
which he won the Bancroft Prize in 1969, and The
1787 is not. The Founders were experienced. pragmatic
Confederation and the Constitution: The Critical Is-
political leaders. but they were not such practical.
sues. He also edited the volume The Rising Glory of
down-to-earth men that they could not be bothered by
America. 1760-1820.
NATIONAL FORUM 5
8-23-84
Lords through the upheavals of this period nevertheless
throughout the West-so much so that even eighteenth-
felt compelled to claim that, because of the power of the
century French aristocrats could acclaim Jacques Louis
House of Commons, their constitution was already
David's painting "The Oath of the Horatii" and cele-
greatly republicanized. By the last quarter of the eigh-
brate the valor and selflessness of the republican citi-
teenth century. being enlightened in the Western world.
zens of antiquity without fully comprehending the dan-
it seemed. was nearly equivalent to believing in republi-
gerous antimonarchical and antiaristocratic
can values.
implications in what they were doing.
The deepest origins of these civic and moral values
What precisely did this body of ideas mean? It meant
went all the way back to ancient Rome and the great era
most obviously the elimination of a king and the institu-
of the Roman Republic. The modern world found most
tion of an electoral system of government. But these
of what it wanted to know about the Roman Republic
were just incidental means to a larger end. Republican-
from the writings of the period that Peter Gay has called
ism really meant creating a political system concerned
the Roman Enlightenment-the golden age of Latin
with the res publica. public things, the welfare of the
literature between the breakdown of the republic in the
people. Liberal critics of eighteenth-century monar-
middle of the first century B.C. to the establishment of
chism believed that kings had become too wrapped up
the empire in the middle of the second century A.D.
in their own selfish dynastic purposes and were ignoring
The celebrated Latin writers of this time-Cicero, Sal-
the good of their people. By climinating hereditary
lust, Tacitus, and Plutarch among others-lived when
kings and instituting governments in which the people
the greatest days of the republic were fading or already
themselves would elect their political leaders, liberal
passed; and thus they contrasted the growing stratifica-
reformers hoped that governments at last would pro-
tion, corruption. and disorder they saw around them
mote only the public's welfare.
with an imagined earlier world of rustic simplicity and
This civic culture, however. had more than political
pastoral virtue. Roman farmers had once been hardy
significance; it had social and moral significance as
soldiers devoted to their country. But they had become
well. Republics required a particular sort of egalitarian
selfish, corrupted by luxury, torn by struggles between
and virtuous people: independent, property-holding cit-
rich and poor, and had lost their capacity to serve the
izens without artificial hereditary distinctions who were
public good. So went these Latin writers' pessimistic
willing to sacrifice many of their private, selfish inter-
explanation of the republic's decline. They left a collec-
ests for the good of the whole community. This depen-
tion of writings embodying beliefs and values-about
dence on a relatively equal and virtuous populace was
the good life. about citizenship, about political health.
what made republics such fragile and often short-lived
about social morality-that have had an enduring effect
polities. Monarchies were long-lasting: they could
on Western culture. Their work is Rome's greatest
maintain order from the top down over large, diverse,
legacy to us.
and stratified populations through their use of heredi-
This great body of classical literature was revived and
tary privilege. executive power, standing armies, and
updated by the Renaissance, especially in the writings
religious establishments. But republics had to be held
of the Italian philosopher Machiavelli. All was blended
together from below, from the consent and sacrifice of
into a tradition of what has been called "civic human-
the people themselves: and therefore, as Montesquieu
ism.' This tradition stressed the moral character of the
and other theorists had warned. republics necessarily
independent citizen as the prerequisite to good politics
had to be small in territory and homogeneous and moral
and disinterested service to the country. To be good
in character. The only republics left in the eighteenth
citizens, men had to be independent, property-holding
century-the Netherlands and the city-states of Italy
farmers free of control by other men. and free of the
and Switzerland-were small and compact. Large,
influence of selfish interests. The importance of this
class-ridden states that had tried to establish repub-
classical conception of political morality can scarcely
lics-as England had in the seventeenth century-were
be exaggerated. Among educated people it rivaled
bound to end up in some sort of military dictatorship,
Christianity for dominance.
such as that of Oliver Cromwell. It was little wonder
This tradition of civic humanism passed into the
that Americans in 1776 embarked on their experiment in
culture of northern Europe. In English culture it in-
republicanism in a spirit of great risk and high adven-
spired the writings of the great seventeenth-century
ture. There had been nothing to resemble their confed-
republicans, Milton, Harrington, and Sidney. And it
eration of republics since the fall of Rome. By 1787,
was carried into the eighteenth century by scores of
however, Americans had become increasingly anxious
popularizers and translators. It was not so much the
about what they were attempting.
treatises of philosophers like John Locke as it was the
Americans of 1787 were not the republican enthusi-
essays of coffee-house journalists like John Trenchard
asts they had been in 1776. In a decade's time many of
and Thomas Gordon that spread republican values
them had had their earlier dreams and illusions about
throughout the eighteenth-century, English-speaking
republicanism considerably dampened. Experience
world. Gordon. for example, in addition to writing
with popular government, especially in the state legisla-
about the importance of free speech and religious liberty
tures, had cast doubt on the American people's capacity
also translated editions of Sallust and Tacitus. But these
for virtue and disinterestedness. By 1787 many leaders,
classical republican values were confined neither to the
therefore, were ready for what James Madison called a
radical fringes of British thought nor to the British
"systematic change" of government, a change that
world. They permeated the thinking of educated people
resulted in the creation of the federal Constitution. But
6 PHI KAPPA PHI JOURNAL
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m
Intellectual Origins
dissatisfied as many American leaders were with the
Confederation and with the state legislatures, none of
them-not even Alexander Hamilton who was the most
monarchically minded among them-was prepared to
give up on republican government. They knew, as
Madison said, that "no other form would be reconcilea-
ble with the genius of the people of America: with the
fundamental principles of the revolution: or with that
honorable determination, which animates every votary
of freedom. to rest all our political experiments on the
capacity of mankind for self-government." Hence in the
new Constitution, the Framers provided for periodically
elected officers of the executive and legislative
branches, and they made the federal government guar-
antee a republican form of government for each state
(Article IV, Section 4), and forbade the United States
from granting any titles of nobility (Article I, Section 9).
Still. the new federal government was sufficiently
different from the Confederation and the governments
of the states to arouse fears among many people that it
Courtesy of the Library of Congress
was not "strictly republican." Did it not have a strong
king-like executive and a powerful Senate with an
aristocratic bearing? Unlike the Confederation, did it
not operate directly on diverse peoples over half a
John Locke (1632-1704).
continent despite the warnings of theorists and experi-
ence that such a large republic could not last? Fears and
achieved. The result would be a governmental system in
questions like these are what led Hamilton. Madison,
equilibrium-the very kind of static model that the
and John Jay to spend so much time in The Federalist
eighteenth-century Enlightenment admired.
trying to prove that the Constitution was really "con-
For most enlightened thinkers of the eighteenth cen-
formable to the true principles of republican govern-
tury, including those of the American colonies, there
ment." In the process they helped to develop and shape
already existed at least in theory such a perfectly
further American ideas of republicanism.
balanced government-the English constitution. The
English constitution with its balance between king, the
I
n 1787, classical republicanism was the basic pre-
House of Lords. and the House of Commons corre-
mise of American thinking-the central presupposi-
sponded marvelously with the classical categories of
tion behind all other ideas. However, it alone was
monarchy. aristocracy, and democracy: and it, there-
not responsible for the peculiar structure of the revolu-
fore. seemed to intellectuals everywhere, not just to
tionary governments, including that of the federal gov-
Englishmen but to continentals like Voltaire and Mon-
ernment created by the Constitution. There was another
tesquieu, to be what William Hooper of North Carolina
set of ideas encapsulated in the theory of balanced or
in 1776 called "a system that approached as near to
mixed government. It came likewise out of antiquity
perfection as any could within the compass of human
and was closely if not inextricably entwined with the
abilities."
tradition of classical republicanism. The classical the-
When Americans in 1776 revolted from this perfect
ory of balanced government provided much more than
English constitution. most of them had no intention of
the foundational ideas for the structures of the several
repudiating the classical ideal behind it. Nor did they
state governments. The classical theory also included
believe that this ideal of balanced government was
the notion of an independent president, the aristocratic
incompatible with republicanism. They thought they
Senate, and the popular House of Representatives.
could have single governors and senates of wise men,
Since at least the time of Aristotle, theorists had
even within an elective system. Their quarrel with the
categorized forms of government into three ideal
English constitution was not, therefore, with its theory
types-monarchy. aristocracy, and democracy. These
but with its recent practice and its current workings.
types were derived from the number of rulers in each:
They and other English crities, speaking out of the civic
for monarchy, one person: for aristocracy, a few no-
humanist tradition of republicanism, thought that in the
bles: for democracy, all the people. Aristotle and others
course of the eighteenth century the ideal English
believed that each of these rulers when alone entrusted
constitution had degenerated and become corrupted.
with political power tended to run amok and to become
The king was using his power to appoint men to crown
perverted. By itself monarchy became tyranny; aristoc-
offices in order to bribe and influence members of the
racy became oligarchy; and democracy became anar-
House of Lords and House of Commons. The monar-
chy. Only by mixing each of these types together in the
chical or executive part of the constitution was, in other
same constitution, only by balancing the tendencies of
words, unsettling the balance among the three suppos-
each of them. could order be maintained and the
edly independent, ruling forces, and it was subtly
perfections of each type of simple government be
absorbing all power to itself. The so-called balanced
NATIONAL FORUM 7
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202
constitution of England had become a hollow shell
tive and Senate than in most of the states. Although the
disguising an insidious monarchical tyranny. When in
ultimate source of this structure was the ideal English
1776 Americans declared their independence from the
constitution, by 1787 few American political leaders felt
British crown, they were determined to prevent any-
comfortable any longer saying so in public. (John Ad-
thing like this tyranny from reappearing in their own,
ams was a conspicuous exception.) Referring to the
new. balanced state constitutions.
chief executive as the monarchical element and the
Most of America's revolutionary state governments
Senate as the aristocracy in a balanced government was
created in 1776-77 were meant to be miniature republi-
politically impossible in the popular atmosphere of the
can copies of the ideal English constitution. Although
1780s. Thus the Framers had to find justifications for
elected. the governors, senates. and houses of represen-
their two-house legislature and their strong, indepen-
dent president in some place other than the English
constitution and the classical ideal of mixed govern-
"Liberty was an English obsession before
ment.
What they did was blend the notion of separating the
it was an American one.
functional powers of government-executive, legisla-
tive, and judicial-with the older theory of balanced
government; and they used both indiscriminately to
tatives of the several states were intended to resemble
describe the now incredibly fragmented and counter-
the king. House of Lords, and House of Commons of
vailing character of America's political system. "The
the English constitution: indeed, they still do. But in
constant aim." wrote Madison in The Federalist No.
order to prevent their balanced governments from de-
51, which summed up the Founders' thinking on their
generating in the way the English constitution had, most
parcelling of power, "is to divide and arrange the
of the states in 1776 severely limited the appointing
several offices in such a manner as that each may be a
powers of the governors or chief executives; and, more
check on the other." Bicameralism, the presidential
important for American constitutional development, all
veto power. the independent judiciary. even federalism
of them forbade members of both houses of the legisla-
itself-the apportioning of authority between the na-
ture and the judiciary from simultaneously holding
tional and state governments-all became various
office in the executive branch. In justifying this prohibi-
means of dividing, checking, and balancing a mistrusted
tion, some of the states in 1776 invoked a doctrine made
political power.
famous by Montesquieu of separating the executive,
legislative, and judicial powers from each other. This
R
epublicanism. the theory of balanced govern-
triad of functioning powers was really not the same as
ment. and the doctrine of separation of pow-
the classical triad of ruling elements-governors. sen-
ers-these were the assumptions that deter-
ates, and houses of representatives-but the goal of the
mined much of what went on in 1787-88. But actually
two triads-the prevention of corruption-was the
they are not the inost palpable and immediate sources of
same.
American constitutionalism. They may not even be the
There is no exaggerating the importance of this
most important sources. Although the classical tradi-
American exclusion of the legislators from simulta-
tions of republicanism and mixed government formed
neous executive or ministerial office. This fundamental-
the presuppositions of American thinking, they were
ly divided America's constitutional tradition from that
presuppositions shared by the whole Western world.
of the former mother country. By this prohibition alone.
Other nations, such as eighteenth-century France, were
Americans prevented the development of an English or
influenced by republicanism: indeed. most countries in
European-style parliamentary cabinet form of govern-
the world now have republican governments. Other
ment. Members of America's executive branch, unlike
states also have attempted balanced governments, two-
those of most of the democracies in the world, cannot at
house legislatures, independent executives, and sepa-
the same time hold seats in the legislatures. The separa-
rated powers. But few of them have our particular
tion of the legislature from what was thought to be the
concern for personal and political liberty: for the rule of
perverse. corrupting influence of the executive was
law, for private personal and property rights, for consti-
written into the revolutionary state constitutions of
tutional and judicial limitations on the use of govern-
1776-77. This division was instituted for the sake of
mental power. If the origins of these concerns are to be
maintaining the independence of the ruling parts and the
found in sources other than America's own experience,
balance that an ideal government ought to have. Since
then they must be found neither in the ideas of classical
separation of powers was often used to justify the
antiquity nor in those of Renaissance civic humanism
maintenance of this independence and balance, there
but in the peculiarities of the English legal tradition.
was the likelihood that separating powers and balancing
Nothing was more important for the development of
parts of the government would blend in people's minds.
American constitutionalism in 1787 and in the years
By the time Americans came to form the federal
following than the fact that most of the Founders had
Constitution in 1787-88, the two sets of ideas had
been reared as Englishmen and had thus shared in the
become thoroughly confused. Undoubtedly most of the
English preoccupation with liberty and in the unique
Framers at Philadelphia thought they were creating a
protections of the English common law. England was,
balanced government much in the form of the several
as Montesquieu said in 1731. "the freest country that
state governments-only with a stronger chief execu-
exists in the world." and eighteenth-century English-
continued on page 13
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Richard B. Morris
reating and Ratifying the
Constitution
T
he Constitution is the supreme collective feat of
political leadership in American history. Its sur-
vival is a tribute to the prescience, innovative
capacity, and drafting skills of the fifty-five delegates
who convened at Philadelphia in the late spring and
summer of 1787. The rapidity of its adoption-in less
than four months-attests to the fact that the national
government that emerged represented a consensus of
those attending the Constitutional Convention. Thus,
Courtesy of the Library of Congress
more attention needs to be paid to the degree of
consensus than to the compromises that the Constitu-
tion embodied. Important as these compromises were,
George Washington presides at the Constitutional Convention
they were agreed upon by the leadership to secure the
major goal of the delegates at this historic session-the
teenth state. Rhode Island, was mired in paper money
achievement of a durable union.
experiments and refused to name a delegation.
The federal Constitution is really our second Consti-
tution. The first, the Articles of Confederation. pro-
homas Jefferson later referred to the Convention
posed in 1777 but not ratified until 1781. failed to
T
as "an assembly of demigods," for with a few
provide national solvency and denied Congress taxing
notable exceptions virtually all of America's
power and control over commerce. The Nation pos-
most respected figures were on the roster of delegates.
sessed neither the military strength nor the prestige to
Indubitably, the Convention's greatest asset was its
force the British army to evacuate frontier posts on
presiding officer. George Washington, the unanimous
American soil in accordance with the Treaty of Paris of
choice to chair its sessions. Washington could count on
1783. The new nation was not able to make a treaty with
advice from a prestigious delegation from his own state,
Spain providing Americans the right to free navigation
which included the scholarly nationalist James Madi-
of the Mississippi or to prevent Barbary pirates from
son. who kept a careful record of the proceedings.
seizing American mariners as hostages. The govern-
Pennsylvania's delegation claimed Benjamin Franklin,
ment lacked the power to enact retaliatory tariffs which
its senior man at eighty-one years old, who brought to
might have induced the British to relax the trade and
the assemblage his wit. his common sense, and his
shipping restrictions imposed upon the United States
unrivaled experience in the service of empire, colonies,
since the peace or to end a severe depression, the
state. and nation. Franklin also enjoyed international
rumblings of which were heard in western Massachu-
renown as a diplomat. scientist, and humanitarian. The
setts in the form of Shays' Rebellion on the eve of the
Convention benefited from other top-flight legal minds
Convention.
like James Wilson of Pennsylvania, John Dickinson of
The solution of the nationalists. of men such as James
Delaware, Alexander Hamilton of New York, John
Madison, Alexander Hamilton. and John Jay, was to
Rutledge of South Carolina, William Livingston,
scrap the Articles and substitute a more centralized
learned and witty governor of New Jersey, and William
system of government. The first step in that direction
Samuel Johnson and Oliver Ellsworth from Connecti-
was taken at a rump convention at Annapolis in 1786.
cut.
where it was resolved to call a convention to meet at
At its opening session on May 25. the Convention
Philadelphia the following May to take actions neces-
adopted a set of rules, gave each state delegation an
sary "to render the constitution of the Federal Govern-
equal vote, and passed a rule of secrecy. Action really
ment adequate to the exigencies of the union." The
began on May 29 when the Virginians advanced their
Continental Congress took a more cautious stance. It
recommended a convention as "expedient" but "for
RICHARD B. MORRIS is the Gonverneur Morris Pro-
the sole and express purpose of revising the Articles of
fessor Emeritus of History at Columbia University and
Confederation." Five impatient states answered the
editor of The Papers of John Jay. Presently, Morris is
Annapolis call, and three others instructed their dele-
co-chairman of Project '87. 11 joint undertaking of the
gates to operate under the Annapolis formula, while the
American Historical Association and the American
remaining four confined their delegates merely to revis-
Political Science Association devoted to the celebration
ing the Articles as authorized by Congress. The thir-
of the Bicentennial of the Constitution.
NATIONAL FORUM 9
8-23-84
GOZ
bold nationalist plan. attributed to James Madison. For
Having settled the question of House representation
strategic reasons. the plan was offered to the Conven-
by voting that it should be proportional. the Committee
tion by Governor Edmund Randolph. A cautious and
of the Whole faced the sticky question: On what basis
even indecisive man. Randolph prefaced his proposi-
should representation be allotted? Rutledge proposed
tions with the recommendation that the Articles be
that representation be made proportionate "to the
"corrected and enlarged," whereas in fact the fourteen
whole number of white and other free citizens and
following resolutions entirely demolished the old Arti-
inhabitants of every age, sex, and condition, including
cles. The Virginia Plan set up a bicameral legislature,
those bound to servitude for a term of years, and three-
with the lower house chosen by popular election and the
fifths of all other persons, except Indians not paying
upper house picked by the lower from candidates
taxes. Despite the proposal's discriminatory fea-
named by the state legislatures. Representation in each
tures, the Committee of the Whole voted nine to two
house was to be proportional to population. This Con-
that representation should be proportionate "to the
gress would have authority to make laws "in all cases in
total number of free men plus three-fifths of all slaves."
which the separate states are incompetent" and to
Note that in the proposal, sex was not mentioned in
nullify any state laws contrary to the federal Constitu-
counting slaves while the number of white persons to be
tion. There was to be a national executive with all the
counted was restricted to males.
executive powers granted Congress under the Articles,
The long-brewing confrontation between the large
along with a veto power over acts of Congress which
and small states began on June 14. Regardless of
would be shared with a number of federal judges. The
whether a final settlement would apportion seats in the
Virginia Plan did not specify whether the executive
national legislature according to taxes paid or according
would be unitary or plural. Only after debate did the
to the number of free male inhabitants plus three-fifths
Convention adopt the former. The plan did determine.
of the slaves, the small states saw themselves complete-
however, that the executive be chosen by Congress and
ly outvoted in a national legislature by a few large
would serve for a term of seven years. The plan also
states.
proposed a system of federal courts.
New Jersey's spokesman, their former attorney gen-
A succession of events seemed propitious for the
eral, William Paterson, now split the Convention by
Virginia Plan, as the Convention immediately formed a
proposing the Small-State or New Jersey Plan in the
committee of the whole, and on motion of Gouverneur
form of nine resolutions, including a one-house legisla-
Morris. voted six to one "that a national government
ture elected by states regardless of population. Save for
ought to be established consisting of a supreme Legisla-
granting Congress the right to tax and regulate com-
tive, Executive. and Judiciary. The vote on the Morris
merce. the New Jersey Plan would have continued
resolution was perhaps the most significant action taken
almost intact the old Articles of Confederation. The
by the Convention. as it amounted to a commitment to
plan was rejected by the state delegations seven to three
establish a supreme central government.
after sharp criticisms by Hamilton. whose remarks
Other parts of the Randolph Plan were sharply con-
carried a high. almost monarchical tone, and James
tested. however, and some were either modified or
Madison. who tore the plan to shreds.
resolved by compromises. The proposition that "the
The first great compromise of the Convention fol-
first branch of the legislature should be elected by the
lowed. Proposed and persuasively argued by the Con-
people" raised two issues: How much democracy did
necticut delegation, the Connecticut Compromise pro-
the Founding Fathers really want? How much power
vided for equality of the states in the Senate. The
were the states prepared to yield to the people?
nationalists put up fierce opposition, and the issue was
Patriots with long-established radical credentials such
assigned for resolution to a special committee made up
as Roger Sherman of Connecticut and Elbridge Gerry of
of one member from each state. an arrangement favor-
Massachusetts stunned their colleagues with antidemo-
able to the small-states group. Their report favored the
cratic outpourings. But nationalists, who looked to the
compromise. and a week later the Convention agreed
people rather than the states for support. could not let
that representation in the lower house should be based
these attacks go unchallenged. George Mason, more
on the total of its white population (sex unspecified)
democrat than nationalist, stoutly favored election of
plus three-fifths of its slave population: eleven days
the House of Representatives by the people, while
later the compromise was completed with the Conven-
James Wilson wanted to raise "the federal pyramid to a
tion's acceptance of the principle of equal representa-
considerable altitude" and give it as broad a base as
tion in the Senate.
possible, a view which Madison seconded. The Com-
The three-fifths clause left the impression that the
mittee of the Whole was persuaded to entrust the lower
delegates were prepared to give a constitutional sanc-
house to election by the people, but as to the second
tion to slavery and the slave trade. That issue arose
branch-the Senate-Randolph and John Dickinson
early in August and precipitated a fierce debate on the
crossed swords with Wilson, as they favored choice by
proposal to grant Congress the power to regulate com-
the state legislatures. the latter by the people again.
merce with foreign nations, among the several states,
This time Wilson lost and the Committee of the Whole
and, on Madison's motion, "with the Indian tribes."
chose the state legislatures to elect senators. After some
Southern delegates felt this clause would work purely to
further wrangling. it was finally agreed that senators
the advantage of the North. particularly New England,
serve for six-year terms, one-third to face reelection
because it might prevent competition among shipown-
biennially.
ers of all nations and raise freight rates, in effect giving
10 PHI KAPPA PHI JOURNAL
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Lidcy
B
Ratifying the Constitution
New Englanders a monopoly of the southern carrying
upon was to choose electors in each state "in such
trade in staples. To prevent such a monopoly, the South
manner" as its legislature might "direct." Perhaps
sought to require that commercial legislation secure a
conceived to placate the states, this plan proved a
two-thirds vote of each house rather than pass by a
victory for both nationalism and democracy, for very
simple majority. Madison, standing apart from most
shortly after 1789 nearly all the state legislatures provid-
other Southerners. prevailed and won acceptance of a
ed for the election of their states' presidential electors
majority vote. That decision begot a second compro-
by popular vote.
mise.
The Convention proved understandably cautious on
The great slavery issue, which had hitherto been
the vexing issue of where to locate the power to declare
swept under the rug, now came to the fore when the
state laws unconstitutional. In the end it was a bitter
delegates turned to the question of import and export
states' rights man, Luther Martin, who inserted a clause
duties. The South proposed that Congress be forbidden
making the Constitution and the laws and treaties of the
from levying a tax on the slave trade and from prohibit-
United States "the supreme Law of the Land." binding
ing importation altogether. Virginia's elder statesman,
upon the judiciary of each state. The "supremacy
George Mason, shocked the delegates from the Lower
clause" became the cornerstone of national sovereign-
South with a tirade not restricted to the slave trade but
ty. The Convention prudently abstained from spelling
embracing the institution of slavery itself. "I hold it
out just what body would have the authority to declare
essential to every point of view that the General Gov-
acts of Congress unconstitutional. but from the sense of
ernment should have power to prevent the increase of
the debates it was implied that the federal judiciary
slavery." Speakers for the Lower South warned they
would exercise the power.
would never agree to a plan of union unless the right to
What stands out in the debates of the Convention are
import slaves remained untouched.
the points of similarity among the various proposals
With the northern delegates divided between those
rather than their differences. Both the Virginia and the
who preferred not to meddle in the slave trade and
New Jersey plans had granted Congress the power to
others who placed the issue on high moral ground, the
levy and collect taxes: and every plan presented at the
Convention sought "some middle ground.' That
Convention gave Congress the right to regulate foreign
ground was almost reached by Governor William Liv-
and interstate commerce. The Convention was unani-
ingston, who recommended there be no prohibition on
mous in vesting in Congress the power to pay the debts
slave importations before the year 1800. Mollified by
and provide for the common defense and general wel-
this spirit of concession. Charles Cotesworth Pinckney
fare of the United States: There was also widespread
of South Carolina substituted "the year 1808" for
agreement about incorporating into the Constitution a
Livingston's 1800. and thus the second major compro-
prohibition on the issuance by the states of paper
mise was adopted by the Convention with a vote of
money.
eight to four. The South was further propitiated by a
With the basic charter of government hammered out,
promise forbidding the federal government to levy
the Constitution was entrusted to the skillful hands of
duties on exports. In turn. the Lower South waived its
the Committee of Style. to which some of the most
objection to taxes on imports.
talented penmen were named. William Samuel Johnson
While these two major compromises were being
was the committee's chairman, with Gouverneur Mor-
debated and adopted, other important propositions
ris, Madison, Hamilton, and Rufus King serving under
were adopted. The nationalists pushed through agree-
him. Morris, however, was largely responsible for the
ments on the supremacy of the laws of Congress and
final phraseology of the Constitution. producing in a
national treaties and gave Congress necessary and
mere two days a document distinguished for its preci-
proper powers.
sion of language and clarity of style. Morris's most
Now it was a question of organizing the resolutions
noteworthy contribution was in changing the wording of
into some acceptable form. a task that was assigned to
the Committee of Detail. Edmund Randolph wrote a
preliminary draft. and James Wilson authored the re-
"Of all Madison's achievements, the Bill
vised draft which formed the final report. Amplifying
the resolutions and providing innovations of its own,
of Rights remains his noblest heritage to
the Committee took the very brief resolution on the
the Nation.
"National Judiciary" and itemized in some detail the
jurisdiction of the "Supreme Court" more or less in the
the Preamble-designating the people of the United
form that it appears in the final Constitution. Again. it
States as the source of authority, and thereby elevating
transformed vague powers conferred on the national
legislature into specific powers, including the crucial
the sights of government and couching its purposes in
eloquent language. The final draft report of the Commit-
"necessary and proper" clause which permitted the
broad (or Hamiltonian) construction of the Constitution
tee of Style was approved in two days, and on Septem-
ber 17 the Convention adjourned.
that was to govern the Supreme Court for years to come.
The Committee of Detail's report formed the basis of
T
he publication of the Constitution precipitated
the Convention's debates for more than a month. A
one of the great political and ideological debates
major question discussed was the mode of electing the
in American history. Anti-Federalists soon
president. The alternative to popular election settled
mounted a formidable campaign against the Constitu-
ck as Set to lose line
NATIONAL FORUM 11
8-23-84
tion-using all the available newspapers, pamphlets,
although an office such as the presidency combined
and mass meetings. Under the pseudonym of "Agrip-
both federal and national features as was true of the
pa." James Winthrop of Massachusetts attacked on two
amending process. Madison sought to reassure the
fronts. The Constitution gave too much power to the
country that the federal principle would guarantee to
central government and left too little to the states: it
the people of a widespread republic that "a coalition of
also would create a permanent aristocracy. From Vir-
interests, parties, and sects which it embraces, a coali-
ginia. Richard Henry Lee, in his widely read "Letters
tion of a majority of the whole society, could seldom
of the Federal Farmer to the Republican," charged that
take place on any other principle than those of justice
"the change now proposed is a transfer of power from
and the general good," while safeguarding minority
the many to the few." In New York, Melancton Smith
rights.
warned that the Constitution would create an "aristo-
The federal Convention had submitted the Constitu-
cratic tyranny" that must soon terminate in "despo-
tion directly to the people through ratifying conven-
tism."
tions. Under Article VII of the proposed Constitution it
The Anti-Federalists challenged the practicality of
would go into effect once nine states had ratified it. The
the notion that a federal republic could govern so vast
Drafters of the Constitution, seeking speedy ratifica-
an extent of territory, found fault with the kind of dual
tion, preferred the single-chambered, specially elected
sovereignty the Constitution envisioned, and con-
state ratifying conventions to the state legislatures,
demned its omission of a bill of rights. More extreme
which would in most cases have required the agreement
critics charged that the Constitution had been framed by
of two houses. The deeper significance of the choice for
a "dark conclave" of "monarchy-men." bold conspira-
ratification by means of popularly elected conventions,
tors who sought not only an elective king and a standing
however. lay in its harmony with the Founders' desire
army, but "an aristocratical Congress of the well-
to ground the Constitution on the authority of the
born."
people.
More specific points of substance and mechanics
were to be scored by their side in the state ratifying
conventions that lay ahead. In essence, the Anti-Feder-
alists revealed themselves to be parochial men (general-
ly living isolated from the arteries of trade) and debtors
"The final draft report of the Committee
of varying degrees and backgrounds. The Anti-Federal-
ists were concerned about individual liberty, which they
of Style was approved in two days, and on
believed rested on republican virtue and the primacy of
September 17 the Convention ad-
the states. They presumed that they alone spoke for the
journed."
common man. However, despite certain well-founded
objections they raised to the Constitution. they had no
alternative plan.
Contrariwise. the Federalists had not only construct-
ed a plan but commanded prestige and experience in
The nationalist strategy worked smoothly at the start.
politics on a high level. points which would score
The small states, once reassured by the crucial Con-
heavily in a society still deferential to elitist gover-
necticut Compromise, which gave them an advantage
nance. Still. they took nothing for granted but defended
beyond their numbers or wealth. fell quickly into line.
their plan with vigor, notably in a series of letters to the
The battles, it grew evident, would be waged in the
New York newspapers published between 27 October,
large states.
1787 and 28 May. 1788 and then brought out in book
The great drama of ratification reached its climax in
form in June of 1788 to influence the ratification of the
twenty-three sweltering June days in Richmond, Virgin-
Constitution in New York. Writing under the pseudo-
ia's New Academy on Shockoe Hill and in some five
nym of "Publius." the contributors were: Alexander
weeks of June and July at the old courthouse in Pough-
Hamilton. author of fifty-one letters: James Madison.
keepsie, New York. The Virginia convention opened
credited with twenty-nine; and John Jay who wrote
with the forces evenly divided. In New York, the Anti-
five. along with his persuasive "Address to the People
Federalists outnumbered the proponents of the Consti-
of the State of New York." The principal task of The
tution by more than two to one. Both conventions
Federalist was to demonstrate that rejection of the
witnessed great debates. Richmond pitted Patrick Hen-
Constitution would create a vacuum of power, a return
ry and George Mason for the Anti-Federalists against
to the irresolute and impotent Confederation. Its au-
James Madison and his allies for the ratification forces.
thors felt obliged to demonstrate that a republican
Henry's opposition came as no surprise, as he had
federalism would provide energetic government while
originally refused to go to Philadelphia because, as he
preserving personal liberties and take into account the
put it, he "smelt a rat." Madison, however, defended
separate and different interests of the thirteen various
the new government brilliantly; and by a vote of eighty-
states. Such devices as cheeks and balances. courts
nine to seventy-nine, the Virginia convention ratified
composed of judges holding office during good behav-
the Constitution unconditionally, with amendments rec-
for, and representation of the people in the national
ommended for the consideration of Congress:
legislatures by deputies of their own selection would
Although New Hampshire, the ninth state, ratified
"tend to the amelioration of popular systems of civil
the Constitution four days ahead of Virginia, thereby
government."
putting the charter into effect, a great battle remained
"Publius" assured his readers that the government
for the admission of New York. Without that key state
they were debating was federal rather than national,
the nation would have lacked geographical unity, and
12 PHI KAPPA PHI JOURNAL
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8-23-84
the significance of New York City, both as the nation's
Ninth and Tenth reaffirmed the reservation of rights to
temporary capital and a major commercial center. was
the states and the people-in effect a guarantee of
not lost on either side. In this case, the victory of the
federalism. Of all Madison's achievements, the Bill of
Federalists was a tribute to leadership and the art of
Rights remains his noblest heritage to the Nation.
persuasion in overcoming great odds. That informed
The Bill of Rights is also a tribute to the conscience of
leadership was provided by Alexander Hamilton and
the Anti-Federalists, to their concern lest a leviathan
John Jay.
state be created that would crush personal liberties and
After the ratification of the Constitution. the Federal-
negate the authority of the separate states. The Civil
ists set out to address some of the concerns of the Anti-
War, which settled for all time the supremacy of the
Federalists. At the very first session of Congress,
Union. by no means eliminated Anti-Federalist criti-
Madison turned his attention to drafting a bill of rights
cism. Many of the arguments that had been raised in the
and quickly enough to avoid the necessity of a second
struggle over ratification contributed to moving the
convention. Madison used the alternative amendment
Nation in a more democratic and egalitarian direction
procedure provided by the Constitution, which required
than may have been contemplated by the Founding
a two-thirds vote in both the House and the Senate and
Fathers at Philadelphia. An integral part of American
ratification by three-quarters of the states. This cumber-
constitutional thought is the Anti-Federalist concern for
some but prudent procedure worked. More than 200
that delicate balance which the Constitution maintains
amendments had been proposed in the state ratifying
between the preservation of individual freedom and
conventions. but the Senate and House in conference
equal rights on the one side and the maintenance on the
reduced that number drastically. In 1791. Madison was
other of a durable federal republic, capable of providing
gratified to learn that the first ten amendments to the
security, imbued with energy, and controlled under a
Constitution had been ratified. In the main, these
unique system of checks and balances and separation of
amendments guaranteed personal liberties, but the
powers.
CANNON-continued from page 4
important reason we should celebrate the Constitution.
to sacrifice immediate personal gain for greater long-
This special issue illuminates the Constitution and the
term personal and societal benefit: for commitment to
200-year history of "the Great Experiment." The au-
our constitutional system of ordered liberty which must
thors gathered in this volume are among the most
at times assume heroic proportions: for the ingenuity to
respected men and women in their fields. Hailing from
solve complicated new problems. as we have done so
government. private enterprise, and academia. they
many times in the past to sustain the cornucopia of
offer not merely histories. but fresh perspectives and
benefits engendered by the personal creativity and
diverse insights on their respective topics.
vitality encouraged by our constitutional system.
These articles will help people understand the United
As we approach our third century, this is an appropri-
States Constitution and those elements of it that have
ate historical moment for national reflection on two
undergirded pervasive freedom and creativity in the
questions: What is important to conserve from our
arts: in science. invention. and technology: in speech,
constitutional heritage? and What courses must we
press. and religion: in enterprise, and in methods of
chart to reach new heights of a free. creative. problem-
helping each other. The articles emphasize the need for
solving, enterprising America?
civic education. wisdom. and virtue: for the willingness
WOOD-contintied from page 8
men on both sides of the Atlantic prided themselves on
the Constitution, had not Chief Justice Edward Coke in
that reputation. The colonists began the Revolution in
the seventeenth century construed and set aside por-
defense of their English liberties. Liberty was an En-
tions of acts of Parliament in order to do justice?
glish obsession before it was an American one.
Whatever Americans did to extend liberty and protect
As much as Americans developed and expanded their
individual rights from the encroachments of govern-
individual rights and freedoms in the late eighteenth
mental power. the English had done it first: trial by jury,
century and after. they always began from the elevated
writs of habeus corpus. concern for property rights, fear
base of English constitutionalism-a more liberal base
of standing armies. bills of rights-all were English
than any in the world. Thus if America seemed to have a
before they were American. Without the influence of
hundred religious sects and consequently moved to
the English constitutional and legal tradition, it is incon-
separate church from state. England had at least thirty
ceivable that Americans in 1787 or later would have
of them and a degree of religious toleration that stunned
believed and acted as they did.
continental observers like Voltaire. If Americans admit-
Yet ultimately. of course. the American political and
ted truth as a defense in questions of a free press.
legal system is not the English system. and this differ-
England, unlike France, at least had no prior censorship
ence should make us aware that looking for intellectual
of what was published. If Americans broadened the
origins and tracing intellectual influences are only part
suffrage and political representation to an unprecedent-
of the explanation of how we have come to be what we
ed extent. the English had a representative Parliament
are. More important perhaps is what Americans have
that went back more than half a millennium. If Ameri-
done with these inherited ideas. how they have used,
can judges in the late eighteenth century drew distine-
expanded, and reshaped their intellectual legacies to fit
tions between statute law and the fundamental law of
the dynamics of their changing experience.
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The Albert United P. Blaustein States
Constitution
A Model in Nation Building
he United States Constitution is this nation's
T
Provinces of the Netherlands of 1579 is a good example of
most important export. It was meant to be, has
modern European history.
been since even before its promulgation. and
It was not the concept of limited government that
continues to be. It could not help but be
and
it
fascinated foreign statesmen. Even the notions of estab-
cannot help but be. As Venezuelan Ambassador Enri-
lishing a republic, having a president. or the radical
que Tejera Paris remarked. "In a dogmatic world, [the
concept of popular sovereignty were already common-
U.S. Constitution] is still regarded as the greatest of
place. The philosophes of the Enlightenment and their
dogmas."
The British statesman William Gladstone character-
philosophical forebears all had written on the subject
and were familiar with each other's works. The works
ized the Constitution as "the most wonderful work ever
struck off at a given time by the brain and purpose of
man,' and it has been so regarded abroad. Prime
Minister Gladstone was not engaged in Victorian hyper-
bole; he was expressing the majority view of constitu-
"The genius of America's Founding Fa-
tionalists everywhere. save possibly those within the
United States itself.
thers consisted in creating the machinery
Argentine scholar Nicolas A. Calvo concurred. In his
to translate constitutional philosophy into
Spanish version of Joseph Story's Commentaries. he
constitutional reality.
stated that his compatriots,
might become aware of the value of the Argentine federal
constitution. which has been copied from the United States
Constitution: and which has no defects except precisely in
those points in which it ceases to be a copy. (Emphasis
of Kant. Goethe. Sonnefels, Hume, Locke. Hobbes,
added.]
Condoreet. Rousseau, Voltaire, Diderot. Abbé Mably,
Turgot, and Montesquieu were not and have not been
L. S. Rowe reports that during the 1860 sessions
strangers to constitution makers.
when the drafters were considering amendments to
The genius of America's Founding Fathers consisted
Argentina's 1853 constitution. it was said:
in creating the machinery to translate constitutional
The democratic government of the United States represents
philosophy into constitutional reality. Their device was
the last word of human logic, for the Constitution of the
the constitutional convention or constituent assembly.
United States is the only one that has been made for and by
This has been the most significant and most-followed
the people
it would therefore be both presumptuous and a
precedent in constitutional development, for in this way
proof of ignorance were we to attempt any innovations in
a nation is formed and gets its constitution (save in
constitutional organization. thus ignoring the lessons of expe-
those instances where the former colonial power grants
rience and the manifest truths accepted by human conscience.
independence and bestows a constitution for indepen-
What made the United States Constitution so great,
dence). The constituent assembly institutionalized de-
so admired, and so imitated? The establishment of a
mocracy. It legalized and legitimized revolution, en-
supreme law of the land was no innovation. Plato
abling men to do what they had not yet been able to do
teaches in The Laws that "some body of law should
peacefully and legally-to alter or abolish government
exist on a permanent basis, on a superior plane-neither
subject to individual tyranny nor to raw majority de-
mocracy." Likewise, historian K. C. Wheare notes
ALBERT P. BLAUSTEIN is professor of law at Rutgers
that:
University. He has written on the Supreme Court,
from the earliest times
people had thought it proper or
school desegregation, and is coeditor of the eighteen-
necessary to write down in a document the fundamental
volume Constitutions of the Countries of the World.
principles upon which their government for the future should
Support of the Research Conncil of Rutgers, the State
be established and conducted. The Act of Union of the United
University of New Jersey, is gratefully acknowledged.
14 PHI KAPPA PHI JOURNAL
8-23-84
27
Nation Building
and institute new governments deriving their authority
possessing a one-document constitution or committed
from the consent of the governed.
in principle to having one-all but six countries—
Starting with the concept that the people are sover-
invariably has followed the United States model.
eign, the Founding Fathers reasoned that they ("We the
As I have written elsewhere, the only universally
People
") could formulate and promulgate ("or-
acknowledged. common characteristic of the world's
dain and establish") a constitution. This was truly
160-odd constitutions is their existence. For regardless
revolutionary. "European thinkers,' explains historian
of the name of the regime in power. regardless of its
R. R. Palmer,
history, regardless of its constitutional heritage, virtual-
ly every nation recognized the inevitability of having a
in all their discussion of a political or social contract, of
constitution.
government by consent and of sovereignty of the people, had
not clearly imagined the people as actually contriving a
On May 3, 1791, Poland promulgated the world's
constitution and creating the organs of government. They
second constitution, and France adopted the third on
lacked the idea of the people as a constituent power. Even in
September 3, 1791. United States influence was respon-
the [subsequent] French Revolution the idea developed slow-
sible for Article V of Poland's document. a statement of
ly: members of the French National Assembly. long after the
popular sovereignty. as well as the preambles and
Tennis Court oath. continued to feel that the constitution
impeachment provisions of both the French and Polish
which they were writing, to be valid. had to be accepted by the
constitutions.
King as a kind of equal with whom the nation had to negotiate.
For the constitution makers of Poland and France,
By following the United States model. all of the
the only national model was the Constitution of the
constitution writers after 1787 could legitimize their
United States. There were, however. thirteen other
revolutions. their independence, their nationhood. In
constitutions in existence at the time-one in each of
his study of Latin American political institutions, Jac-
England's former colonies of North America, south of
ques Lambert writes:
Canada-that were also to be of influence.
Such minimal influence as the United States Consti-
Here
was the worthy model of a constitution that repudi-
tution had on the short-lived 1791 French Constitution
ated monarchy and clearly proclaimed the principle of politi-
The Constitution of the United States lent
is only a footnote in constitutional scholarship. But the
cal freedom
influence of the United States Constitution via the 1791
authority the cloak of democratic respectability. A few coun-
tries very shortly adopted constitutions directly inspired by
French Constitution is a different story. For constitu-
it-Venezuela in 1811. Mexico in 1824. the Central American
tional historian John Hawgood notes that:
Federation in 1825. and Argentina in 1826.
the famous Spanish constitution of 1812. which breathed
While the constituent-assembly concept was the most
constitutional life into Portugal and Brazil. as a painstaking
important American contribution to constitutionalism.
copy of most of the features of the French Constitution of
1791.
it was by no means our only contribution. In fact. the
most famous and most publicized American "inven-
The Spanish adaptation was followed in the constitu-
tion" is our concept of federalism. It was a novel kind of
tional documents of both Naples and Sicily and was one
federal structure totally unknown in Europe. And it was
of the principal models for the constitutions of Latin
the natural outgrowth of the concept that sovereignty
America.
resided in the people and not in their governments.
The other constitution which closely followed the
The United States Constitution has not served as a
1791 French model met a different fate. While it was to
world model solely because of its quality as a legal and
be of little influence beyond its own borders, Norway's
philosophical document. It has also been called the
1814 document became a symbol of stability and the
most successful written constitution in the world. It has
world's second oldest constitution in continuing exis-
passed the test of time.
tence.
The indirect influence of the United States Constitu-
tion upon Brazil. among others. via the French Consti-
A
nother reason for the Constitution's serving as a
tution of 1791 and the Spanish Constitution of 1812 is
world model is the simple fact that it was the
typical in the constitution making of much of Europe,
first constitution. It has been readily available
Latin America, and the former French, Portuguese, and
for examination for nearly two centuries. "Until the
Spanish colonies of Africa. The direct United States
time of the American and French Revolutions." ex-
influence is acknowledged-especially in regard to the
plains Wheare,
separation of powers. judicial review, the enumeration
A selection or collection of fundamental principles was not
of individual rights, and, where applicable, federalism.
usually called "the Constitution"
The Americans in 1787
But their constitution writers are even quicker to ac-
declared: "We the People of the United States
do ordain
knowledge their debt to neighboring states, to former
and establish this Constitution for the United States of Ameri-
colonial powers, and, above all, to France. Wrote
ca." Since that time the practice of having a written document
Professor C. F. Strong:
containing the principles of government organization has
become well established and "Constitution" has come to have
The French, in the course of the eighty years preceding the
this meaning.
establishment of the Third Republic in 1875. had experiment-
ed amazingly in constitution-making. a branch of practical
Thus, just by being first, the United States Constitution
politics in which the world had come to look upon Frenchmen
inevitably influenced constitutionalism. Every nation
as pre-eminent craftsmen, who, to quote one of their own
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authorities, were accustomed to conceive of a constitution as
More than [a] hundred years have rolled over when the first
a philosophical work
In the exercise of this political
written constitution was drafted. It has been followed by
ingenuity the French had contrived to devise no fewer than a
many countries reducing their constitutions to writing. What
dozen constitutions in the space of less than a century.
the scope of a constitution should be has long been settled.
Similarly, what are the fundamentals of a constitution are
Adherents of the French influence fail to remember
recognized all over the world. Given these facts, all constitu-
the continuing French love affair with American consti-
tions in their main provisions must look similar. The only new
tutionalism and democracy à l'Américaine. To quote
things, if there can be any. in a constitution framed so late in
Professor Henry Steele Commager:
the day are the variations made to remove the faults and to
accommodate it to the needs of the country.
It was France that welcomed the American example-
welcomed it. followed it, and even improved upon it. It was in
France that the "American party" triumphed, briefly, to be
sure
11
he third reason for the widespread influence of
Franklin was the pivotal point, Franklin who was a
the United States Constitution abroad is that
legend, but a very active one. and who saw to it that the
American Constitutions, and other State Papers, were trans-
constitutions are written by lawyers, and
lated and published in France.
lawyering inherently involves the search for source and
precedent. In addition, lawyers are prolific writers and
Nor have the French ceased to pursue American guide-
voracious readers of books and articles on constitu-
lines-as manifested by United States influence in the
tions: the most voluminous constitutional writings of all
present 1958 constitution.
are devoted to the American experience. Lawyers also
The extreme example of the indirect influence of the
read and are influenced by their study of case law,
United States Constitution is found in the preambles of
which provides persuasive precedents of other lands.
the constitutions of Senegal in 1963, Mali in 1974, and
The fourth reason for the great influence of the
the Central African Republic in 1981. All three constitu-
Constitution abroad is the widespread publication and
tions follow a French African pattern, and all three
distribution of literature. This literature is often distrib-
proclaim attachment to or reaffirmation of the Declara-
uted in the course of proselytizing and features a
tion of the Rights of Man and of the Citizen of 1789 and
dedication to constitutionalism and the rule of law.
the Universal Declaration of Human Rights adopted by
From the earliest days of the American revolutionary
the United Nations in 1948. Not only was the 1789
movement, its leaders were conscious that they were
French Declaration based in part upon the Bill of Rights
doing something of worldwide significance. They had
drafted by George Mason for the Virginia Constitution.
convinced themselves that they were creating a new
but Thomas Jefferson, Gouverneur Morris. and other
Eden. not only for America but for all of humanity.
Americans participated in its actual authorship. Not
They had a story to tell and a message to deliver. They
only was the United Nations 1948 Declaration based
were proselytizers and advocates seeking to justify,
upon the United States Bill of Rights. but Mrs. Franklin
legitimize. and legalize their revolution. Consequently,
D. Roosevelt (chairperson) and her American staff did
their Declaration of Independence. their Articles of
most of the drafting.
Confederation. their state constitutions, and all of the
other underpinnings of the United States Constitution
were widely distributed abroad. This is the reason for
the influence of the United States Constitution (in
"By following the United States model, all
France, Switzerland. Belgium, and Poland) before it
was created. "In America," Commager writes, "poli-
of the constitution writers after 1787 could
tics was the universal preoccupation, legislation the
legitimize their revolutions, their indepen-
universal resource. and Constitutions the universal pan-
acea."
dence, their nationhood."
Such American advocacy and proselytizing of Ameri-
canism have never stopped, nor has there been a
scarcity of readers and listeners. Our international
audience probably began with the publication of the
Declaration of Independence and the constitutions of
It must be taken as a constitutional truism that
the founding states in the periodical Les Affaires de
constitution makers follow precedent. Nowhere is this
l'Angleterre et de l'Amérique. which appeared regularly
better illustrated than in the debates on the 1949 Consti-
from 1776 to 1778. The best-seller of the period, as one
tution of India. undoubtedly the most researched and
would expect. was the French translation of The Feder-
argued constitution in history. At the constituent as-
alist. It was first published in the United States in 1788
sembly. some delegates criticized the draft constitution
and has since been translated into more than twenty
on the ground that most of it had been taken from other
languages. As of mid-1984, the United States Informa-
constitutions-that it could claim very little originality.
tion Agency was considering making additional transla-
B. R. Ambedkar himself, the man recognized as the
tions and freely distributing them abroad.
father of the Indian Constitution, replied to this cri-
Upon signing the treaty of alliance between France
tique:
and the United States in 1778, the state constitutional
One likes to ask whether there can be anything new in a
texts, which had been published in Les Affaires de
constitution framed at this hour in the history of the world.
l'Angleterre et de l'Amérique, already called the Code
16 PHI KAPPA PHI JOURNAL
8-23-84
Nation Building
de la Nature. were published in Paris. In 1783. Franklin
law during the process of drawing up. applying, interpreting,
obtained from Charles Vergennes, minister of foreign
or amending a national constitution. Concretely, the views of
affairs. official authorization for a Paris printing of
individual American judges and legal scholars have been
Constitutions des Treize Etats de l'Amérique. As early
solicited during visits by Asian constitutionalists to America;
as 1786, philosophe Condorcet. outlining his ideas for a
American legal literature (including judicial precedents) has
French declaration of rights, authored De l'influence de
been studied, and one or more Americans have been directly
involved in some Asian constitution-making.
la Révolution Amérique sur l'opinion et la legislation
de l'Europe.
My own personal experience verifies the influence of
The Lafayette draft of the declaration of rights was
the United States Constitution in Bangladesh. I was one
even more important. Lafayette sent a copy to Jefferson
of a group of American lawyers who had worked with
in January, 1789, and Jefferson immediately sent a copy
Justice Abu Sayeed Chowdhury, chief spokesman
on to James Madison for comment. Gouverneur Morris!
abroad for Bangladesh independence. I had had the
who arrived in Paris on February 3. 1789. as a repre-
opportunity to discuss the future shape of the Bangla-
sentative of certain American commercial interests,
desh Constitution when we had met on numerous
also studied the draft. He recommended a number of
occasions in New York. When the new state was
changes, suggesting that Lafayette was "too republican
established in January, 1972. Chowdhury was named its
for France." Advice from Jefferson. Madison, and
first president, and one of the New York lawyers and
Morris was supplemented by Lafayette's conversations
myself were invited to the Capitol to discuss impending
on the subject with Alexander Hamilton, Benjamin
legal problems.
Franklin, and Thomas Paine. Thus. while the famous
While there I met, for the first time, with Law
French Declaration of the Rights of Man and of the
Minister Kamal Hossein, who was to become the
Citizen of August, 1789. was officially the work of
guiding spirit and principal draftsman of the constitu-
Lafayette, Mirabeau, and Jean Joseph Mounier, it also
tion. I had brought with me a dozen or so constitutions
had claim to American parentage.
which I thought had precedent value: we had long
At about the same time, lawyer Jacques, Vincent de la
discussions in Dhaka, followed by subsequent discus-
Croix (or Delacroix) was offering a course on the
sions in London and New York, before the constitution
Constitution of the United States at the Lycée de Paris,
was adopted in December of that year. During that
an institution of free higher education established in
period. I also sent him a number of United States law
1787. The course attracted a large following and was
books which he made available to the others working on
written up from August 9 to 23. 1790, in Le Moniteur.
the constitution.
the most important Paris newspaper.
Similar examples of the influence of the United States
In 1835. Alexis de Tocqueville published Part One of
Constitution can be reported for Africa. I can so testify
the French edition of Democracy in America. finishing
from personal experience in Liberia. a nation which was
Part Two in 1840. This enormously popular work
established by American Blacks who had returned to
heightened interest in the United States constitutional
Africa. For almost all of its history the nation lived
system both in Europe and Latin America. At roughly
under an 1847 constitution. largely drafted by Professor
the same time, from 1832 to 1845, United States Su-
Simon Greenleaf of the Harvard Law School. The
preme Court Justice Joseph Story was writing his nine
constitution closely followed both the United States and
Commentaries on the law and published his Constitu-
Massachusetts constitutions.
tional Classbook in 1834. These were also influential
During the next 133 years. the judges of the Liberian
abroad.
courts followed the principles of American constitution-
Information about United States constitutionalism is
al law. A high percentage of the nation's leaders were
not confined to Western Europe. As previously noted.
taught at American law schools. The law school of the
the Polish Constitution of 1791 preceded its French
University of Liberia continued to follow the United
counterpart by four months. It is known that the
States pattern and use United States law books.
Warsaw press carried detailed information on current
Following the 1980 military coup and the suspension
developments in America. Waclaw Szyszkowski
of the 1847 constitution, the head of state announced
writes.
that military rule could be of limited duration. He then
Not only were big excerpts from the Constitution published.
created a National Constitution Commission to draft a
but a periodical called International Treaties published. in
new constitution for the transition to civilian rule. As
consecutive issues, the Articles of Confederation, together
counsel to that commission. I can testify to the extent of
with a brief history of the Revolutionary War. the text of the
the United States influence in terms of ideas followed,
Treaty of Paris and, later on. the text of the new Constitution
language used, research materials examined, and the
and its amendments.
legal education of the members. (The result reflected far
The Polish leadership of the time "all knew the contem-
more United States influence than I had recommended.)
porary world through their education, travel, and con-
tacts with the United States."
The same reasons for the influence of the United
he fifth reason for the extent of the influence of
States Constitution on the later Asian experience are
T
the United States Constitution abroad is rooted
voiced by Professor Lawrence Ward Beer:
in military conquest. Germany and Japan pro-
A basic context for American influence has been the
vide the best-known examples, but it is in the former
consultation of American experts on constitutionalism and
colony of the Philippines that the influence has been and
continued on page 38
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Thomas P. O'Neill, Jr.
ongress: The First 200
Years
A
S we approach the Bicentennial of the Constitu-
with the majority of state delegations would become
tion and the Congress it created, it is appropri-
president. The second-place finisher would become
ate to consider how the legislative branch of
vice president. If there were a tie for second, the Senate
our federal government has developed during its nearly
would choose the vice president. Coupled with modifi-
200 years of existence. It might be both interesting and
cations by the Twelfth Amendment to the Constitution,
useful to see how much Congress has turned out the
this is the arrangement today.
way the Drafters of the Constitution conceived it, as
The two-party system completely wrecked this care-
well as how much of the evolution of Congress was not
fully wrought plan. for only twice (Thomas Jefferson in
anticipated by them.
1801 and John Quincy Adams in 1825) has the House
Take the development of political parties, for exam-
been called upon to elect the president. This is not to
ple. It is hard to imagine our government functioning
say that the way things have developed is bad or wrong.
without a strong two-party system. Yet the Continental
On the contrary, I believe we have a much better
Congress and the Articles of Confederation Congress
system than anticipated. But the plan to make the
existed without parties. The idea of political parties
president dependent upon the Congress for election in
apparently never arose at the Constitutional Conven-
most instances was all part of the balance designed by
tion, either; a careful reading of James Madison's Notes
the men who wrote the Constitution.
of Debates in the Federal Convention of 1787 does not
Delegates to the Convention seem to have anticipated
reveal any indication that political parties were at all
that a candidate for president would have to forge an
anticipated by the delegates.
alliance with the House of Representatives in order to
Such a remarkable lack of prescience on the part of
attain the presidency. Presidents would not assume
this talented and experienced group has had incredible
office with what has been too often the case in recent
consequences for the Congress and for the Nation. We
years-a highly personal interpretation that they have
normally consider the role of political parties in the
been given a specific mandate by the American people
House or the Senate only in terms of partisan votes on
to whip the Congress into shape and force it to respond
legislative issues or the means for selection of internal
to their own interpretation of what is best for the
leadership positions. The existence of political parties.
country. On the contrary, the Constitution does not
however. has changed dramatically the basic relation-
give to the president alone the power to interpret and
ship between the Congress and the president in a way
execute the popular will.
unanticipated in 1787.
Even during my thirty-some years in Congress, the
Specifically, when the Constitutional Convention
party system has changed a lot. and some of these
considered the method of electing the president, only
changes have hurt the ability of Congress to act effec-
one state delegation-Pennsylvania-felt that the presi-
tively. When I first entered the House in 1953, it seemed
dent of the United States should be elected directly by
that most of the members had worked their way up
the people. After much discussion and negotiation, the
through the ranks to get to the House of Representa-
delegates decided upon indirect election of the presi-
tives. They had worked for their party on the local or
dent, using electors meeting in their separate states to
state level and had served in some kind of local office,
cast their votes. Because of the lack of communications
like mayor or alderman or city commissioner. Perhaps
facilities at the time and the lack of nationally popular
they had served in the state legislature, as I did, and
leaders other than George Washington, it was common-
they knew what it meant to follow the leadership and
ly assumed that the electoral vote generally would be
learn the art of legislation. There were not many mem-
indecisive. George Mason, one of the luminaries of the
bers in those days who set out on their own with
Revolutionary War period and a delegate to the Con-
complete disregard for the party to which they be-
vention. guessed that "nineteen times in twenty" there
longed. They had some understanding of government
would be no presidential majority in the electoral col-
and how it works.
lege.
How, then. did the delegates think that the president
would be elected? The answer. found in Article II,
Speaker of the House THOMAS P. "TIP" O'NEILL,
Section I of the Constitution, is that the House of
Jr., was elected to Congress in 1952 and has been
Representatives-each state delegation having one
Speaker since 1977. He represents the Eighth District of
vote-would usually elect the president. The candidate
Massachusetts.
18 PHI KAPPA PHI JOURNAL
8-23-84
m
Congress
ing large numbers of new ones at the beginning of each
Congress. His power to do this was enhanced by the
relatively short careers of most congressmen of the
time. By 1900, when the trend toward longer service in
Congress was well-established, it had become accepted
Harper's Weekly; WEB Collection
practice in both the House and the Senate that a
member would move up in seniority as he outlasted
other members of his party on a particular committee.
When he reached the top of the ladder, he would
become the committee chairman, provided that his
party had a majority in his branch of the Congress. It
still works this way in the Senate.
The House, however. has recently introduced an
element of flexibility into the process of committee
chair selection. The Democratic Caucus, whose rules
The impeachment of President Andrew Johnson, 1868.
control the House as long as the Democrats have a
majority, adopted a series of reforms in 1974. These
The party system is much different today. and I
changes require a secret ballot election for committee
believe it works to our detriment as a Congress. Men
chairmen at the beginning of each Congress and limit a
and women are elected to the House without having
member to one subcommittee chairmanship. As a prac-
previously held elective office. They can get elected
tical matter, seniority is still quite important in deciding
because they raise the money and hire a media consul-
who will chair a House committee, but it is no longer
tant and get on television. Some of them do not care
the only consideration.
about what party they belong to, and they feel as if they
There are other developments in the Congress that
owe the party nothing when they take office. The House
would surprise the men who drafted the Constitution in
has always been a difficult body to lead: I do not
1787. The Constitutional Convention. for example, was
believe. though, that even Henry Clay, despite the
able to get by with only one staff person to help with its
many problems he had with John Randolph of Roanoke
work. The growth of federal responsibilities and activi-
who brought his hunting dogs on the floor of the House.
ties over the past 200 years. however, has meant that
ever had to deal with as many independent members as
every branch of the government has increased in size
are found in the modern House of Representatives. The
since the first years of the Republic. This is as true for
result has been a breakdown of party discipline and a
the Congress. which began in 1789 with only ninety-one
refusal to follow party leadership. which leads in turn to
members and a minuscule staff. as for any other branch.
congressional paralysis and an inability to act coherent-
ly as a legislative body.
"It is not the duty of the House or the
O
ther fundamental changes have occurred in
Congress over the past 200 years. Congressio-
Senate to accede to the wishes of the
nal tenures, for instance. have become much
longer. Most of the men-there were only men in the
president, just because the president occu-
Congress in those days-who served in the first years of
pies the oval office.'
the Republic stayed for only a term or two. The custom
was that a representative would leave his farm or
business or profession and go to Washington for a few
years. He would stay in a boarding house, cat his meals
For their first fifty years. the House and the Senate
with other members of the House and Senate, and curse
were able to function without having staff for particular
the insects. Washington's heat and humidity. and the
congressional committees. By 1891, the first year for
open sewer that ran near the Capitol building.
which we have good data, a total of 103 persons worked
For the first fifty or so Congresses, very few men
full-time for congressional committees. This assistance
made a career of service in the House or the Senate.
helped case the committee members' workload, and as
Until about 1880, more than half the men elected to
committee responsibilities have increased over the past
each Congress were first-termers. Service of long dura-
ninety years, the number of committee staff persons has
tion. like that of Nathaniel Macon (1791-1828). Samuel
grown to just over 3000. Until almost the end of the
Smith (1793-1833). and William R. King (1811-16,
nineteenth century, however, there was no such thing
1819-44. 1848-52). was most unusual. As we passed
as personal staff support for a member of Congress. By
into the twentieth century, elective office became more
1930. the total of these congressional staffs was some
of a career than a temporary public service.
1569 persons. Fifty years later, some 14,000 individuals
Concurrent with the longer tenure in office, seniority
served the Congress as personal or committee staff
began to acquire greater significance in leadership as-
members, an eightfold increase. By comparison, the
signments in the Congress. Throughout the first century
national budget. for which Congress is responsible,
or so in the House of Representatives, the Speaker
increased by more than 172 times during this same
switched committee chairmen as he wished, often nam-
period.
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8-23-84
It is not unreasonable to believe that Congress has
to adjust its way of doing business to reflect this reality.
required an increase in staff assistance to enable it to
Certain realities have not changed. Constituents need
cope with the growth of the national budget and the
help with some agency or department of the executive
increased complexity of the federal government as a
branch. By the time someone writes his or her member
whole. The president is able to obtain information and
of Congress, you can be fairly certain that a long and
advice from the Office of Management and Budget, the
frustrating history has already taken place. Many citi-
White House staff, and the thousands of analysts,
zens today feel with some justification that too much of
statisticians, and managers elsewhere in the executive
government has become large and impersonal. When
branch of the government. If the Congress is to consider
there is a problem with their Social Security benefits or
legislation. appropriate hundreds of billions of dollars.
their Veterans Administration benefits, the ordinary
perform its oversight of executive branch operations,
answer millions of letters, and act as ombudsman for
harassed constituents, it needs a staff much greater than
the one man who served the delegates to the Constitu-
tional Convention in 1787.
Although the role of members of Congress has ex-
"If I could accomplish one thing as
panded greatly over the past 200 years, they still have a
Speaker of the House of Representatives,
responsibility to their constituencies. The difference,
however, is the scope of these duties. Just over 100
it would be to teach the American public
years ago (1882) a congressman from Michigan, Roswell
that the Congress is a co-equal branch of
G. Horr. placed in the record an account of the typical
constituent-service duties and activities:
the federal government
I think it is safe to say that each member of this House
receives fifty letters each week; many receive more
Growing out of these letters will be found during each week a
large number of errands. a vast amount of what is called
department work. One-quarter of them. perhaps. will be from
citizen often feels reduced to nothing more than a multi-
soldiers asking aid in their pension cases, and each soldier is
clear in his own mind that the member can help his case out if
digit number. dealt with in an impersonal fashion. The
he will only make it a special case and give it special attention.
member can step in. cut through the Gordian knot of
Another man writes you to look up some matter in reference
bureaucracy. and see to it that the citizen receives his or
to a land patent. Another says his homestead claim should be
her due. Members of Congress have been helping their
looked after and he wants you to learn and let him know why
constituents in this manner since the beginning of the
he does not receive his full title. Another has invented some
Republic. and I cannot imagine that anyone today
machine and the department have [sic] declared his discovery
would suggest that this is not an appropriate role for the
to be already supplemented by some former inventor, and
Congress.
have [sic] refused his patent. He would like you to go through
the Patent Office and look over the patent laws and see if great
injustice has not been done in his case. Another has a son or
brother in the Regular Army whom he would like to have
F
inally. I would like to consider the relationship of
discharged.
the Congress and the president, in its idealized
Another has a recreant son whom he would like to get into
state, as it actually exists. and as I believe it
the Regular Army or Navy. In conformity with these requests
should exist. When most of us were going through what
you are liable to be called upon, perhaps several timês in one
used to be called civics class. we were taught that there
week. by these applicants in personam, and they will require
were three branches of government at the national
you to go at once and exert your enormous powers.
level. The legislative branch, we were taught, makes the
Recall that the members who preceded Repre-
laws; the executive branch enforces the laws; and the
sentative Horr. as well as those who came along many
judicial branch interprets the laws. In a general sense,
years after. performed all of these functions personally.
this scheme is correct.
The fifty letters a week received by Representative
But the distinction between making and enforcing
Horr. however. have become more than 5000 a week for
laws has become blurred over the years with the advent
the typical member of the House. All of this mail needs
of executive branch regulation making and the congres-
to be answered, even if it is only a simple acknowledge-
sional veto. Even the courts have gone far beyond
ment.
merely "interpreting" the law and have been perform-
Much of this incoming mail is issue-oriented, and the
ing such executive functions as administering state
marriage of the computer to the high-speed printer
prison systems and redrawing school district bound-
enables a well-organized. well-financed interest group
aries. I believe that this blurring of duties will continue
to generate literally millions of letters to Congress on a
for the foresecable future. and no amount of railing for a
given topic. If members did not in turn rely upon their
return to the good old days will do one bit of good.
own computers and computer operators to respond to
If I could accomplish one thing as Speaker of the
this mass-generated correspondence, they would slowly
House of Representatives, it would be to teach the
disappear beneath a sea of paper. The computer age is
American public that the Congress is a coequal branch
upon us, and for better or worse the Congress has had
of the federal government, with its own set of powers
20 PHI KAPPA PHI JOURNAL
8-23-84
Congress
and responsibilities. It is not the duty of the House or
can easily make themselves the focus of every major
the Senate to accede to the wishes of the president. just
news report. because the president of the United States
because the president occupies the oval office. Indeed.
is unarguably the most powerful individual in the world.
the Congress and the president were intentionally set at
And it is precisely for this reason that the Congress has
cross-purposes by the men who drafted the Constitu-
a duty and a responsibility to act to counterbalance this
tion. Sometimes a powerful president has been able to
power. The Congress is composed of the collective
dominate the Congress: sometimes the Congress has
wisdom of 435 members of the House and 100 members
run over a president. The locus of power in the govern-
of the Senate, men and women who bring to the
ment swings back and forth between these two
Nation's capital every conceivable combination of edu-
branches.
cation and experience, 535 individuals who together
In my own lifetime the man who was most responsi-
represent the richness and diversity of our country.
ble for concentrating power in the presidency was
Who is to say that this group, this Congress, should bow
Franklin D. Roosevelt. A dynamic individual, he knew
to the wishes of any one individual, no matter who that
how to make the Congress bow to his will. After him
individual may be? No, the Congress has its own role to
other presidents, regardless of party, were able to build
play. and it has always been a difficult one.
on Roosevelt's legacy and increase the power of the
One of my predecessors as Speaker. Nicholas Long-
presidency.
worth. a Republican who served with a Republican
The growth of personal and committee staffs has
president in a Republican Congress, spoke some sixty
certainly given the Congress a better chance to meet the
years ago of the public perception problem faced by the
president on an equal basis. There are also certain
Congress. His words are humorous, but I do not feel
congressionally initiated statutes that have recently
they are exaggerated:
increased the power and influence of the House and
Senate, specifically the War Powers Act and the anti-
I have been a member of the House of Representatives ten
terms. That is twenty years. During the whole of that time we
impoundment provisions of the Budget Act of 1974.
have been attacked. denounced. despised. hunted, harried,
The War Powers Act was passed over President
blamed. looked down upon, excoriated, and flayed.
Richard M. Nixon's veto in 1973 by a Congress that was
I refuse to take it personally. 1 have looked into history. I
reasserting its constitutional primacy in the war area.
find that we did not start being unpopular when I became a
Twice since 1950-in Korea and in Vietnam-the Unit-
Congressman. We were unpopular before that time
ed States has found itself in a hot war without a specific
From the beginning of the Republic it has been the duty of
congressional declaration of war. Some people might
every free-born voter to look down upon us. and the duty of
argue that the War Powers Act is too much of a
every free-born humorist to make jokes at us.
restriction on the president. but I see it as a return to the
Always there is something-and, in fact. almost always
intent of the Constitution. I see the same principle in the
there is almost everything-wrong with us. We simply can not
be right.
anti-impoundment law incorporated in the Budget Act
Let me illustrate. Suppose we pass a lot of laws. Do we get
of 1974, which was largely a reaction to President
praised? Certainly not. We then get denounced by everybody
Nixon's refusal to spend certain funds that had been
for being a "Meddlesome Congress" and for being a "Busy-
appropriated by Congress.
body Congress." Is it not so?
In 1972 alone, President Nixon refused to spend $2.5
But suppose we take warning from that experience. Sup-
billion for highway construction. $1.9 billion in defense
pose that in our succeeding session we pass only a few laws.
funds, and $1.5 billion for such programs as food
Are we any better off? Certainly not. Then everybody
stamps. rural water and waste disposal, and rural elec-
denounces us for being an "Incompetent Congress" and a
trification. The proper and constitutional way for him to
"Do-Nothing Congress."
object to these appropriations would have been to veto
We have no escape-absolutely none.
We have no chance-just absolutely no chance. The only
the appropriations bill. Such action would have given
way for a Congressman to be happy is to realize that he has no
the Congress an opportunity to override him: impound-
chance.
ment-refusing to spend the money that had been
appropriated-leaves the Congress high and dry with
Speaker Longworth's words often seem as accurate
little means to protest effectively. I believe this law was
to me today as when they were first published in the
greatly needed and helps restore a balance to the
mid-1920s. I hope we can change this situation in the
government. Parenthetically; I would point out that the
future. If we can use this Bicentennial to restore in the
much-discussed presidential line-item veto would un-
public mind the equality that was intended between the
dermine congressional power in the budget process and
Congress and the president, then we will have accom-
could result in the elimination of many programs, such
plished something truly significant and historic: In so
as federal aid to libraries or museums. that are favored
doing we offer the greatest possible tribute to those men
by a majority of the Congress but opposed by an
who almost 200 years ago sat through a hot summer in
administration. The anti-impoundment law is the sole
Philadelphia and drafted the greatest Constitution the
protector of these programs today.
world has ever known, and we will have accomplished
The biggest advantage a modern president has is the
something that will have a lasting effect on our great
six clock news. Presidents can be on the news every
nation long after we and this Bicentennial are only
night if they want to-and usually they want to. They
distant memories.
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Ronald W. Reagan
he Presidency: Roles and
Responsibilities
T
he Declaration of Independence not only pro-
ries are in peril of forgetting how rare and precious that
claimed our freedom from Great Britain, but also
condition is.
set forth the principles for which the Founding
An active and informed citizenry is necessary to the
Fathers were willing to pledge their lives, fortunes, and
effective functioning of our constitutional system. As
sacred honor:
that all men are created equal, that
Chief Justice John Marshall, who knew a thing or two
they are endowed by their Creator with certain unalien-
about the Constitution, once wrote, "the people make
able Rights, that among these are Life. Liberty and the
the Constitution, and the people can unmake it. It is the
pursuit of Happiness. The battles of the Revolution
creature of their own will. and lives only by their will."
secured the independence proclaimed in the Declara-
All of us have an obligation to study the Constitution
tion: it remained for the revolutionaries to put the ideals
and participate actively in the system of self-govern-
of liberty into practice. History has recorded many
ment it establishes. This is an obligation we owe not
tragic episodes that bear witness to President Millard
only to ourselves and our posterity, but to the Framers,
Fillmore's caution "that revolutions do not always
who risked everything for freedom. and to the brave
establish freedom." Ours did, largely because it was
men and women who throughout our history have
followed shortly by the framing of the Constitution.
preserved the Constitution, often at the cost of their
what the great American historian George Bancroft
lives. There is no better time than this Bicentennial
termed "the most cheering act in the political history of
period to refamiliarize ourselves with the Constitution
mankind."
and rededicate ourselves to the values it embodies.
One of our more able statesmen and constitutional
lawyers. Daniel Webster. once wrote: "We may be
T
he central challenge confronting the Framers of
tossed upon an ocean where we can see no land-nor.
the Constitution was to create a strong national
perhaps. the sun or stars. But there is a chart and a
government that would not threaten the liberties
compass for us to study. to consult, and to obey. The
so recently won. Experience under the Articles of
chart is the Constitution." For nearly 200 years. the
Confederation had demonstrated the inadequacies of a
Constitution has endured with relatively few amend-
weak government "destitute of energy"; the colonial
ments as a blueprint for freedom. In commemorating
rule of George III had demonstrated the threats posed
the Bicentennial of the Constitution we celebrate not
by strong central government. The challenge was to
simply the historic event that took place in Philadelphia
reconcile those two experiences. As Madison wrote,
on September 17. 1787. but the process by which we
the difficulty lay in "combining the requisite stability
govern ourselves today.
and energy in government with the inviolable attention
The very notion of self-government was novel when
due to liberty and to the republican form."
the Framers embarked upon the constitutional experi-
The solution the Framers embraced was to diffuse the
ment. James Madison, in "The Federalist Papers,"
national governmental authority. Power was to be
urged his fellow citizens not to oppose ratification of the
shared among separate institutions-the legislature, the
Constitution because of its novelty. He argued that it
executive, and the judiciary-in order that no single
was the glory of the American people that they were not
branch could become so powerful as to threaten the
blindly bound to the past but willing to rely on "their
liberties of the people. In four study of] the allocation of
own good sense" and experience in charting their
authority in the Constitution, it is important to keep in
future. "To this manly spirit posterity will be indebted
mind the purpose of this allocation-nothing less than
for the possession. and the world for the example, of the
the preservation of liberty. This is what Alexander
numerous innovations displayed on the American the-
Hamilton meant when he wrote that the unamended
ater in favor of private rights and public happiness."
Constitution "is itself. in every rational sense, and to
Madison's prediction has proved true. Americans are
every useful purpose, a bill of rights." Our liberties
indebted to the Framers for their brave willingness to
have been preserved in large part because of the alloca-
govern themselves. and the world is indebted to Ameri-
tion of powers in the Constitution.
ca for the example it continues to provide of democratic
This central fact-that the unamended Constitution is
self-government. But while the Framers had to over-
itself a bill of rights, and that the allocation of powers in
come the fear of the new, we now must fight with equal
vigilance against complacency toward the old. A people
RONALD W. REAGAN is the fortieth president of the
who have lived with freedom under law for two centu-
United States.
22 PHI KAPPA PHI JOURNAL
8-23-84
The Presidency
the Constitution preserves liberty-imposes a special
obligation on those who hold office under the Constitu-
tion. Public officials must not only discharge their
responsibilities but also must respect the constitutional
restraints on their offices and. equally important, pre-
serve the constitutional prerogatives of their offices.
Any individual president is a trustee of the powers of
the office and cannot yield those powers for expediency
or any other purpose. Presidents may at times prefer
that another branch make a difficult decision or take
action vested in the executive; or they may sometimes
be willing to countenance an intrusion on their powers
to achieve a particular result. At such times, the chief
executive must recall that the Constitution allocated
powers not simply for efficiency but to preserve liberty.
In defending the constitutional prerogatives of the of-
fice, the president is protecting liberty by fulfilling the
Framers' design.
The Framers looked primarily to the president to
provide the critical element of "energy" in the govern-
ment. The problem with the government of the Articles
President William Taft (1857-1930).
of Confederation had been that it was "destitute of
energy. The Drafters of the Constitution redressed
the United States. In the landmark case of Myers v.
that problem by vesting "competent powers" in the
United States, Chief Justice William Howard Taft, a
executive to lead the Nation. As Hamilton wrote:
former president, wrote that it was a "reasonable
implication" from the president's obligation to execute
Energy in the executive is a leading character in the definition
the laws that "he should select those who were to act
of good government. It is essential to the protection of the
for him under his direction in the execution of the
community against foreign attacks: it is not less essential to
laws." The chief justice went on to recognize the
the steady administration of the laws: to the protection of
property against those irregular and high-handed combina-
principle that the president's appointment power car-
tions which sometimes interrupt the ordinary course of jus-
ried with it the corollary power to remove those officers
tice: to the security of liberty against the enterprises and
in whom he could no longer place his confidence: "as
assaults of ambition. of faction. and of anarchy.
his selection of administrative officers is essential to the
execution of the laws by him. so must be his power of
The president's popular mandate justified this grant of
removing those for whom he can not continue to be
authority. The president and the vice president with
responsible.' As the Framers recognized. this power to
whom he runs are the only officials in our government
appoint and remove officers of the United States is
elected through a process involving all the voters. Only
necessary if the president is to be responsible for the
the president can claim to speak for all the people.
faithful execution of the laws and the provision of "a
because, as Hamilton wrote. his selection looks "in the
good administration."
first instance to an immediate act of the people of
The challenge confronting the modern presidency is
America." The office of president has "a due depen-
to "produce a good administration" when the federal
dence on the people, and a due responsibility."
establishment has grown so far beyond anything the
Perhaps the most pervasive responsibility of the
Framers could have imagined. It is an amazing fact that
president is to administer the executive branch. The
there are more federal employees today than people
Framers were practical men who recognized, as Hamil-
living in America when the Framers drafted the Consti-
ton wrote. "that the true test of a good government is its
tution. Perhaps President George Washington could
aptitude and tendency to produce a good administra-
play an active role in supervising the details of the first
tion." The people look ultimately to the president to
administration, but it is now the responsibility of his
ensure the efficient performance of duty by the millions
successors to create mechanisms for the control and
of federal employees scattered among the various de-
coordination of the executive branch. One such mecha-
partments and agencies. I doubt that any of the Fram-
nism is Executive Order 12291. which I issued during
ers, prescient as they were. could have imagined the
my first month in office. Executive Order 12291 for the
size and scope of today's federal establishment. They
first time provided effective and coordinated manage-
nonetheless afforded the presidency the tools necessary
ment of the regulatory process. Under the Executive
"to produce a good administration."
Order. all regulations issued by executive departments
The Framers gave the president the responsibility to
and agencies must be reviewed by the Office of Manage-
"take Care that the Laws be faithfully executed" and
ment and Budget before being issued in order to deter-
the power to appoint officers to assist him in discharging
mine whether they conform to the president's policies
that responsibility. The Constitution provides that the
and to consider, to the extent possible, whether their
president shall nominate, and by and with the advice
social benefits will exceed their social costs. The admin-
and consent of the Senate, shall appoint the officers of
istration has issued a comprehensive statement of regu-
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8-23-84
E1
latory policy, and established procedures to ensure that
himself one of our most successful early diplomats-
this policy is reflected in the actions of individual
argued that "the President will find no difficulty to
agencies.
provide" those qualities, though they were beyond the
Other initiatives include the recent establishment of
capability of a basically deliberative body such as
the President's Council on Management Improvement,
Congress.
an interagency committee charged with improving man-
When it came to the defense of the Nation, the
agement and administration throughout government:
Framers were even more unambiguous. Hamilton, who
the President's Council on Integrity and Efficiency,
served at General Washington's side during the Ameri-
established in 1981 to root out fraud, waste, and mis-
can War of Independence, knew that:
management; and the President's Private Sector Survey
on Cost Control's comprehensive review of the func-
the direction of war most peculiarly demands those qualities
tioning of the government. Given the size and scope of
which distinguish the exercise of power by a single hand. The
the federal bureaucracy. Hamilton's admonition that
direction of war implies the direction of the common strength;
the executive "produce a good administration" re-
and the power of directing and employing the common
strength forms a usual and essential part in the definition of
quires careful, continuous attention to regulatory and
the executive authority.
managerial reform.
In the areas of defense and foreign affairs, the Nation
must speak with one voice, and only the president is
"In the areas of defense and foreign
capable of providing that voice.
affairs, the Nation must speak with one
This is not to denigrate the role of Congress in the
development of foreign policy. On the contrary, the
voice, and only the president is capable of
Framers required the assent of two-thirds of the sena-
providing that voice."
tors to a treaty, and of course only Congress possesses
the power to declare war. Beyond these defined roles,
the support of Congress has been indispensable to an
effective foreign policy throughout our history.
At the same time. however, it is fitting to consider
The 1970s saw a rapid rise in congressional efforts to
whether the federal government is trying to do too
affect directly the formulation and implementation of
much. The Framers did not charge the national govern-
foreign policy by the executive. A large number of
ment with solving all the problems that might confront
prohibitions and restrictions on presidential authority
the citizens of the Republic: the early Americans were
were enacted in the areas of trade. human rights, arms
too jealous of their freedom to sanction such an expan-
sales. foreign aid, intelligence operations, and the de-
sive view of central authority. It is the responsibility of
ployment of United States armed forces abroad. Schol-
the president not only to manage government efficient-
ars and officials differ over the constitutionality of
ly, but also to offer leadership in recognizing that
several of these initiatives. It is important to note,
government spending must be limited to functions that
however, that efforts by Congress to participate in the
are the proper responsibility of government and that
development of American foreign policy must be ac-
taxing by government must be limited to providing
companied by a recognition of the concomitant respon-
revenue for legitimate government purposes.
sibility for developing bipartisan consensus. We need to
restore the honorable American tradition that partisan
T
he president has no more important responsibil-
politics stops at the water's edge. As Congress attempts
ity under the Constitution than the conduct of
to augment its foreign policy role. it must ensure that its
foreign affairs. As John Marshall noted on the
efforts do not result in America presenting multiple and
floor of the House of Representatives, "The President
perhaps discordant voices to the world. to the detriment
is the sole organ of the nation in its external relations,
of its security and interests. The president-"the sole
and its sole representative with foreign nations." In the
organ of the nation in its external relations"-must
famous Curtiss-Wright decision of 1936, the Supreme
continually seek the means of developing a bipartisan
Court agreed with Marshall's assessment: "In this vast
legislative-executive consensus on America's role in the
external realm
the President alone has the power to
world and the means of safeguarding that role. As
speak or listen as a representative of the nation." The
Congress increasingly enters the foreign policy realm, it
president's foreign policy powers derive from the gener-
too must recognize a greater responsibility for develop-
al grant of executive power, the more specific grants of
ing such a consensus.
authority to make treaties and appoint and receive
Apart from executive functions. the Constitution
ambassadors. and his role as commander in chief of the
accords the president a significant role in the legislative
armed forces.
process. The president has not merely the power but the
The Framers recognized that of the two democratic
duty to "from time to time give to the Congress
branches, only the executive could successfully con-
Information of the State of the Union. and recommend
duct foreign relations. Hamilton noted in his description
to their Consideration such Measures as he shall judge
of the executive that "Decision. activity, secrecy. and
necessary and expedient
The people have grown
dispatch will generally characterize the proceedings of
to expect leadership from the president not only in
one man in a much more eminent degree than the
executing the laws but also in presenting a legislative
proceedings of any greater number." and John Jay-
program to Congress for consideration.
24 PHI KAPPA PHI JOURNAL
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The Presidency
the Framers' original design through a constitutional
amendment granting the president line-item veto au-
thority. The constitutions of no fewer than forty-three
states grant some such authority to the governor, and
the experience at the state level suggests a line-item
veto would work well at the federal level.
T
he powers of the presidency are limited, and the
president discharges constitutional responsibil-
ities in a system according other powers to the
coordinate branches of the legislature and the judiciary.
As the Supreme Court has remarked, there is a
never-ending tension between the President exercising
the executive authority in a world that presents each day some
President James Garfield and his cabinet.
new challenge with which he must deal and the Constitution
under which we all live and which no one disputes embodies
some sort of system of checks and balances.
Perhaps the most prominent of the president's legisla-
tive powers is the qualified veto power. This power is
The members of all three branches take an oath to
qualified in the sense that a bill returned by the presi-
uphold the Constitution. and it is a monument not only
dent with disapproval can nonetheless be enacted into
to the genius of the Framers but also to the statesman-
law by a two-thirds vote of both houses. The Framers
ship of those who have held office under the Constitu-
accorded the president a veto power for two reasons.
tion that the system has worked as well as it has.
First, they recognized the "propensity of the legislative
Thomas Jefferson called the presidency "a splendid
department to intrude upon the rights. and to absorb the
misery." The Framers intended. as Hamilton wrote,
powers, of the other departments" and provided the
that "the executive should be in a situation to dare to
president a veto so that he could defend the preroga-
act his own opinion with vigor and decision.' Presi-
tives of his office. The second purpose of the veto was
dents have learned advisors at their disposal, and they
as "an additional security against the enaction of im-
can consult with Congress, but the difficult and poten-
proper laws.
tially momentous decisions the Constitution vests in the
The unique perspective the president can bring to
executive are. in the final analysis, the president's
bear on legislation was recognized by Chief Justice
alone. Our most tested president. Abraham Lincoln,
Taft:
announced a guide for making those decisions that has
The President is a representative of the people just as the
yet to be bettered:
members of the Senate and of the House are, and it may be. at
I desire to so conduct the affairs of this Administration that if,
some times, on some subjects. that the President elected by all
the people is rather more representative of them all than are
at the end. when I come to lay down the reins of power, I have
the members of either body of the Legislature whose constitu-
lost every other friend on earth. I shall at least have one friend
left. and that friend shall be down inside of me.
encies are local and not countrywide.
The intent of the Framers in providing the president a
As we prepare to commemorate the Bicentennial of
qualified veto power has been frustrated to a large
the Constitution, let us honor the memory of the
extent by the development of the congressional practice
Framers who drafted our blueprint for freedom. as well
of combining various items in a single appropriations
as those who, like Lincoln. did not permit their dreams
bill. The Framers undoubtedly anticipated that Con-
to die. But let us also recognize the workings of a
gress would pass separate appropriations bills for dis-
greater force. The Signers of the Declaration of Inde-
crete programs or activities, and that the president
pendence acted with "a firm reliance on the Protection
would be able to review each program. Until about the
of Divine Providence," and Madison, reviewing the
time of the Civil War. this was the practice of Congress.
work of the Constitutional Convention, noted that "It is
Since that time, however, Congress has increasingly
impossible for the man of pious reflection not to per-
combined various items of appropriation in omnibus
ceive in it a finger of that Almighty hand which has been
appropriations bills. This makes it difficult for the
so frequently and signally extended to our relief in the
president to discharge the responsibility vested in him
critical stages of the revolution.' What President Gro-
by the Framers, because a president cannot consider
ver Cleveland said on the occasion of the Centennial of
the individual items of appropriations separately, but
the Constitution rings even truer today:
must either veto or approve the package as a whole.
The president is thus prevented from using the veto as
As we look down the past century to the origin of our
Constitution. as we contemplate its trials and its triumphs, as
the Framers intended. "to increase the chances in favor
we realize how completely the principles upon which it is
of the community against the passing of bad laws,
based have met every National peril and every National need,
through haste. inadvertence. or design."
how devoutly should we confess, with Franklin, "God gov-
It is for this reason that we have proposed restoring
erns in the affairs of men.
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COURT
The Warren Judiciary: E. Burger
OF
SUPREME
THE
The Origins of Judicial Review
THE
UNITED
OF
SEAL
thing
STATES
L
ord Bryce. the noted English political thinker,
to time that the subject of judicial review of legislative
once said that:
action was not in the minds of the delegates to the
Constitutional Convention in 1787. However, such an
No feature of the government of the United States
has awakened so much curiosity
caused so much discus-
obviously important question could not have entirely
sion. received so much admiration. and been more frequently
eluded their attention. Some of the delegates, without
misunderstood. than the duties assigned to the Supreme Court
doubt, looked to an independent judiciary with fixed
and the functions which it discharges in guarding the Ark of
tenure as a means of protecting the states and the
the Constitution.
people against the powers of the new national govern-
ment. whose scope was as yet unseen and unknown and
In some quarters the Supreme Court's guardianship of
was therefore feared. Others, particularly the proper-
that Ark probably has received more guarded praise
tied classes, probably regarded a Supreme Court and an
than in distant places. Lord Bryce, of course, had
independent federal judiciary as a source of protection
reference to the doctrine of judicial review, sometimes
against the egalitarian. popular government that attract-
described as the doctrine of judicial supremacy, in the
ed considerable support as the French upheavals of the
interpretation of constitutional terms and principles.
eighteenth century unfolded; Thomas Jefferson gave
It is helpful to an understanding of the issues sur-
support to this trend. The delegates could not have
rounding the unique role of the judiciary in the Ameri-
failed to be aware that the exercise of such powers by
can constitutional system to examine one particular
the judiciary must in some way involve limitations on
aspect. The setting in which Marbury I', Madison was
legislative and executive action that was contrary to
decided in 1803. with all its momentous consequences
fundamental law as expressed in the Constitution.
for our country. is important. That great case had its
Some residual controversy remains as to the exercise
antecedents in our colonial experience and its taproots
of judicial review today, but it is largely as to scope. not
in the declarations of fundamental rights of Englishmen
as to authority. It is now accepted that the first signifi-
dating back to the Magna Carta almost 500 years before
cant exercise of the power by the Supreme Court in
our independence.
1803 was not judicial usurpation as Jefferson charged.
The colonial experience of living under a distant
But when a case in controversy is properly brought
parliamentary system with no check on the legislative
before the Court on a claim that some governmental
or executive, except that of popular will in a very
action is contrary to the Constitution, someone must
limited way. led our Founding Fathers to feel strongly
decide the issue: the Court must decide. Needless to
the need for limitations on all branches of government.
say, the major challenges to the Court's power have
They were skeptical if not suspicious of power. The
occurred during those periods when, for whatever rea-
intellectual spadework for the system ultimately adopt-
son, the Supreme Court has been under attack for its
ed for our federal government had been done by such
role in contemporary affairs. As an example, many
seventeenth- and eighteenth-century political theorists
polemics as well as some of the most thoughtful and
as Thomas Hobbes and John Locke. The great rational-
scholarly challenges were written during the 1930s
ist Montesquieu contributed the idea of a separation of
when, to many of its critics. the Supreme Court repre-
powers within the government itself, with each branch
sented the dead hand of the past, impeding legitimate
acting as a kind of brake upon the others.
experimentation and innovation while the legislature
As the system worked. one of the functions exercised
and the executive were trying to cope with a national
by the Supreme Court involves measuring executive or
economic crisis.
legislative action-or that of the states-against the
It is often assumed that the doctrine of "judicial
Constitution whenever a challenge to such action is
review" was the invention of Chief Justice John Mar-
properly brought within the framework of a "case" or
shall in the most famous of all his opinions. It is true
"controversy." The Supreme Court does not "reach
that Chief Justice Marshall first applied this keystone
out" for cases as the popular media occasionally imply:
doctrine of our constitutional law in the Marbury case.
it can select cases for review. but a significant portion of
But Marshall did not originate, and never claimed to
the cases argued are appeals that the Court is required
to review.
Some commentators on the development of the Con-
WARREN E. BURGER is chief justice of the United
stitution in the United States have suggested from time
States.
26 PHI KAPPA PHI JOURNAL
8-23-84
The Judiciary
M.P. Rice
Sugrame Court Missorical Society.
The Chase Court, 1865.
The Burger Court, 1981.
have originated, a novel doctrine: he was well aware of
The English Magna Carta, of course. was intended
the general acceptance of the idea that constitutional
primarily by the barons as a limitation on King John,
adjudication was inherent in the very nature of the
but it has come to stand for a limitation on princes and
separation of powers under our written Constitution.
parliaments alike. In one of the very early opinions of
This is not to disparage Marshall, for he was the one
the Supreme Court of the United States, one of many
who recognized the need to enunciate the doctrine as
containing references to the Magna Carta, it was said:
part of federal jurisprudence, and he seized-some have
said he strained-to take the first opportunity to assert
after volumes spoken and written [about the guarantees
the power of the Court to measure an act of Congress by
of Magna Carta]. the good sense of mankind has at length
the yardstick of the Constitution.
settled down to this: that they were intended to secure the
individual from the arbitrary exercise of the powers of govern-
ment
[Emphasis supplied.]
I
n 1776, the very year of the Declaration of Indepen-
dence. and a quarter of a century before Marshall
If the judiciary could not "secure the individual from
became chief justice. the people of the town of
the arbitrary exercise" of a power that in reality the
Concord. Massachusetts, held a town meeting and
Constitution did not grant. then truly the Constitution,
adopted a resolution that "a Constitution alterable by
as the Concord Town Meeting Resolution declared, was
the Supreme Legislative is no security at all to the
"no security at all."
subject. against encroachment of the Governing Part on
Another thread of influence originates with the strug-
any or on all their rights and privileges.' Earlier, when
gle between Lord Coke and the Stuart kings. Coke's
the colony of Massachusetts Bay was under British
writings and reports were well known to the American
colonial rule, the sturdy farm people of Berkshire
colonists: and even though the dictum in Dr. Bonham's
County refused to let the colonial courts sit from 1775 to
Case is not precisely followed in England. it has been
1780 until the people of Massachusetts adopted a consti-
seminal in our law. In that case Coke asserted that:
tution with a bill of rights enforceable by judges. These
episodes were well known to the delegates who labored
in many cases, the common law will controul Acts of
in Philadelphia.
Parliament. and sometimes adjudge them to be utterly void:
The premise in these events. twenty-five years before
for when an Act of Parliament is against common right and
Marbury. was that by its very nature as an organic
reason. or repugnant. or impossible to be performed, the
document defining and delegating powers to three sepa-
common law will controul it. and adjudge such Act to be void.
rate coequal branches of government. a written consti-
tution would be a limit on the acts of the legislature and
And even the super authoritarian, Oliver Cromwell,
executive so as to protect fundamental liberties. Where
150 years before Marbury V. Madison. said: "In every
else but in the judicial branch was the appropriate
government, there must be something fundamental,
vehicle for providing that protection.
somewhat like a Magna Carta which would be unalter-
In 1793. Chief Justice Spencer Roane of Virginia's
able
Whether the stern. dictatorial Mr. Cromwell
highest court. and an intimate of Thomas Jefferson.
intended to propound the idea that a judicial body like
wrote in Kamper V. Hawkins:
our Supreme Court. independent of and coequal with
the executive and legislative branches, should be em-
If the legislature may infringe this Constitution [of Virginia),
it is no longer fixed:
and the liberties of the people are
powered to act as a sort of umpire is doubtful, but
wholly at the mercy of the legislature.
plainly he was asserting that "there must be some-
thing" to make sure fundamental rights would be "unal-
To be sure, Chief Justice Roane was speaking about the
terable.
power of the state courts to strike down legislative acts
More than a decade before Marbury, justices of the
contrary to the state constitution. but conceptually his
Supreme Court sitting on circuit held that state laws
view agrees with Marshall's in Marbury.
contrary to the federal Constitution were invalid, and
NATIONAL FORUM 27
8-23-84
this was confirmed in Van Horne Lessee 1'. Dorrance.
Whatever his earlier beliefs, by 1803 Jefferson's dis-
In his opinion in that case. Justice William Paterson,
trust of and opposition to the federal judiciary had
sitting on circuit, asserted flatly:
crystallized. From then onward, Jefferson did not
I take it to be a clear position: that if a legislative act
waver in his attitude. In a letter to a friend dated August
oppugns a constitutional principle, the former must give way,
18, 1821, Jefferson wrote, some would say prophetical-
and
it will be the duty of the Court to adhere to the
ly:
Constitution, and to declare the act null and void.
It has long
been my opinion, and I have never shrunk
We see, therefore, that long before Marbury, Ameri-
from its expression
that the germ of dissolution of our
can political leaders, including many of the most distin-
federal government is in the Constitution of the federal
judiciary: an irresponsible body (for impeachment is scarcely
guished lawyers and judges, accepted as fundamental
a scare-crow), working like gravity by night and by day,
that a written constitution was a restraint on every part
gaining a little today and a little tomorrow, and advancing its
of the federal government. It does not disparage John
noiseless step like a thief, over the field of jurisdiction, until all
Marshall's greatness as a judge or a statesman to say
shall be usurped from the States, and the government of all be
that when he wrote the opinion in Marbury, he was
consolidated into one. To this I am opposed
doing little more than declaring what was widely accept-
Like a thief!
ed by so many of the best legal minds of his day-at
least when they could divorce politics from reason! Had
Adams, as I have-noted, was a "lame duck" presi-
it not come in Marbury, it would have come later, but
dent after November 1800, with a "lame duck," Feder-
John Marshall was not a man to wait for perfect
alist-controlled Congress on hand for four months after
opportunities if a plausible one offered itself. It had to
the election. Naturally, he made as many appointments
be said, and Marbury was the fortuitous circumstance
as possible-persuading Ellsworth to resign to make
that made it possible to establish this great principle
way for Marshall was but one step. The appointment of
early in our history.
a goodly number of federal judges was another. But the
far-lesser post of a local justice of the peace was the
lthough the American doctrine of judicial re-
grist of Marbury's case.
A
view, as formally articulated in Marbury 1'.
Madison. is the great formal pronouncement, it
is equally clear that the very words of Article III of the
T
he story is too well known to be chronicled in
detail. Marbury was one of those whose com-
Constitution permit no other conclusion.
mission as justice of the peace was signed by
The setting in which this great case developed is
President Adams and attested to by Marshall, who was
familiar and important. The incumbent President John
still acting as President Adams's Secretary of State
Adams was defeated by Thomas Jefferson in November
even after being appointed chief justice and confirmed
1800. Between the time of the election and the following
by the Senate. But Marbury's commission was not
March when Jefferson actually took office, Adams
delivered.
remained in office and his Federalist party controlled
Marbury then sought mandamus in the Supreme
the "lame duck" Congress. Soon after his defeat.
Court against Madison. Jefferson's Secretary of State,
Adams encouraged the ailing Chief Justice Oliver Ells-
to compel what Marbury claimed was the purely minis-
worth to resign. Adams was deeply concerned about the
terial act of delivering the commissions. In the Supreme
future and undoubtedly about what Jefferson and his
Court the first reaction may well have been, "of
party might do to the independence of the Supreme
course." since the Judiciary Act provided that precise
Court.
remedy.
Jefferson's choice for chief justice. had Marshall not
But if, as no one had even remotely suspected up to
been appointed, would almost certainly have been Chief
that time, Congress could not constitutionally grant
Justice Roane, who was described by Professor Charles
original jurisdiction to the Supreme Court in any cases
Warren as "an ardent strict constructionist on the
except those specifically recited in Article III, then the
Constitution." Roane had shown his basic agreement
Court could say. "Yes, Marbury was duly confirmed";
with Marshall on the subject of judicial review in an
and "Yes, the Commission was duly signed and
opinion for Virginia's highest court in 1793, stating:
sealed"; and "Yes, this Court may examine into the
manner in which the executive conducts its affairs";
It is the province of the judiciary to expound the laws
and "Yes, delivery is a purely ministerial act"; and
It may say too, that an act of assembly has not changed the
"Yes, it is improper that the new administration will not
Constitution [of Virginia], though its words are expressly to
perform the simple ministerial act of delivery"; but the
that effect
[I]t is conceived. for the reasons above
mentioned. that the legislature have not power to change the
Court could also say, "However, this Court has no
fundamental laws.
power under the Constitution to entertain any original
action except those specified in Article III, and this case
Underlying Jefferson's hostility to judicial power was
is not one of them. That being so, Section 13 of the
the very fundamental difference between the Federalist
Judiciary Act of 1789 purporting to give the Supreme
belief that a strong national government was the key to
Court such authority would be invalid and any action to
the future of the new nation and the opposing belief of
compel the executive to deliver the commission to
the Jeffersonians, who sincerely feared centralized
Marbury could not be entertained as an original ac-
power and wanted to keep the states the strong and
tion. This, in essence. is what Marshall wrote.
indeed the dominant political power.
Jefferson and Madison had won the lawsuit-the
continued on page 33
28 PHI KAPPA PHI JOURNAL
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Walter Berns
Do
We Have a Living
Constitution?
Constitution has no meaning whatever. Here are the
I
n the first of the eighty-five "Federalist Papers,"
Alexander Hamilton emphasized that
words of Lynn D. Compton, a California appellate
judge. writing in 1977 in the pages of the Los Angeles
it seems to have been reserved to the people of this
Times:
country. by their conduct and example. to decide the impor-
tant question, whether societies of men are really capable or
Let's be honest with the public. Those courts are policy-
not of establishing good government from reflection or choice.
making bodies. The policies they set have the effect of law
or whether they are forever destined to depend for their
because of the power those courts are given by the Constitu-
political constitutions on accident and force.
tion. The so-called "landmark decisions" of both the U.S.
Supreme Court and the California Supreme Court were not
Now, almost 200 years later. we are in a position to say
compelled by legal precedent. Those decisions are the law and
that, under some conditions, some "societies of men"
are considered "right" simply because the court had the
are so capable. but that most are not. This is not for lack
power to decree the result. The result in any of those cases
of trying: on the contrary, constitutions are being
could have been exactly the opposite and by the same criteria
written all the time-of some 164 countries in the world
been correct and binding precedent.
all but a small handful (seven by latest count) have
In short. these precedent-setting policy decisions were the
product of the social. economic and political philosophy of the
written constitutions-but most of them are not long-
majority of the justices who made up the court at a given time
lived.
in history
In September 1983. the American Enterprise Institute
sponsored an international conference on constitution
So extreme a view of judicial power is not likely ever to
writing at the Supreme Court of the United States: some
be expressed in the official reports: there (perhaps in
twenty-odd countries were represented. With the ex-
order to be "[dis]honest with the public") even the
ception of the Americans. the persons present had
most inventive judge will claim to be expounding the
themselves played a role-in some cases a major role-
Constitution. if not its explicit provisions then. at least,
in the writing of their countries' constitutions. most of
its emanations. penumbras, or lacunae (Griswold v.
them written since 1970. Only the constitution of the
Connecticut). What is of interest is that a judge should
French Fifth Republic predated 1970; and the Nigerian,
be willing to express it anywhere, for what it means is
so ably discussed and defended at the conference by
that a constitutional provision can be interpreted but
one of its framers. has subsequently been subverted.
not misinterpreted. construed but not misconstrued.
much as the four previous French republican constitu-
More to the point here. it means that the Constitution is
tions had been subverted. It would seem that many
a living charter of government only because it is repeat-
peoples are experienced in the writing of constitutions,
edly being reinvented by the judiciary.
but only a few of them-and conspicuous among these
Although the two schools are likely to be indistin-
we Americans-have an experience of stable constitu-
guishable at the margins, they derive from unrelated
tional government. In that sense, we surely have "a
and distinct sources. "Judicial power" is a product or
living Constitution."
an extension of legal realism. the school of thought
That is not. however, the sense in which the term is
whose advocates, from the beginning of the twentieth
ordinarily used in the literature of constitutional law. In
century. have argued that the essence of the judicial
the ordinary sense. a "living Constitution" is not first of
process consists not in interpreting law, whether statute
all one that is long-lived: its longevity is a secondary or
or constitutional. but in making it. Its advocates today
derivative quality which is attributed to its flexibility or,
better, its adaptability. It is this quality that allows it to
be "kept in tune with the times," as the members of this
WALTER BERNS is the John M. Olin Distinguished
school sometimes say. A living Constitution is first of
Scholar in Constitutional and Legal Studies at the
all a protean constitution, one whose meaning is not
American Enterprise Institute and Professorial Lectur-
fixed.
er at Georgetown University. He has taught at Cornell,
In this respect, it is similar to the Constitution as
Yale. and the University of Toronto. His most recent
understood by the "judicial power" school. Some judi-
book is For Capital Punishment: Crime and the Morality
cial-power advocates go SO far as to say that, until the
of the Death Penalty. He is the author of several other
judges supply it in the process of adjudication, the
books and articles on constitutional subjects.
NATIONAL FORUM 29
8-23-84
speak with a certain insouciance of "creating" constitu-
ellipses are used to join two statements separated by
tional rights (Moore V. City of East Cleveland), and,
some eight pages in the original. Marshall did not say
when pressed to cite their authority for doing so are
that the Constitution should be adapted to the various
likely to point to the work of contemporary legal
crises of human affairs: he said that the powers of
theorists like Ronald Dworkin and his book Taking
Congress are adaptable to meet those crises. The first
Rights Seriously (Cambridge: Harvard University
statement appears in that part of his opinion where he is
Press, 1977). It is Dworkin who has purportedly given
arguing that the Constitution cannot specify "all the
this sort of constitutional lawmaking what it has always
subdivisions of which its great powers will admit"; if it
lacked-a philosophical underpinning. As he secs it,
attempted to do so it would "partake of the prolixity of
rights cannot be taken seriously until there has been "a
a legal code" (McCulloch V. Maryland). In the second
fusion of constitutional law and moral theory," and to
statement, Marshall's subject is the legislative power
make it clear that he is not referring to any particular
and specifically the power "to make all laws which shall
moral theory that may have informed the Constitution
be necessary and proper for carrying into execution"
as written, he finishes that sentence by saying that that
the explicitly granted powers. It is this provision that
fusion "has yet to take place.' As it turns out, howev-
"is made in a constitution intended to endure for ages to
er, the moral theory he propounds, and which he hopes
come, and consequently, to be adapted to the various
to fuse with constitutional law, proves to be nothing
crises of human affairs" (McCulloch v. Maryland). The
more than a fancy way of justifying what the Judge
immediate sequel makes it even clearer that it is the
Comptons among us have been doing all along.¹ And
legislative power that is said to be adaptable, not the
what they have been doing is, essentially, treating the
Constitution itself:
Constitution as a thing without form or substance
To have prescribed the means by which the government
except insofar as it authorizes the judges to give it
should. in all future time. execute its powers, would have been
substance.
to change, entirely, the character of the instrument [i.e., the
Admittedly, few proponents of the idea of a living
Constitution], and give it the properties of a legal code.
Constitution would treat the constitutional text in so
cavalier a manner. In their view, a constitutional provi-
Neither Marshall nor any other prominent member of
sion-for example, the clause forbidding states to im-
the founding generation can be coopted by the living
pair the obligations of contracts-has an ascertainable
Constitution school. His and their concern was not to
meaning. and judges should be governed by it unless,
keep the Constitution in tune with the times but, rather,
because of circumstances. the consequences of being
to keep the times, to the extent possible. in tune with
governed by it are politically unacceptable (Home
the Constitution. And that is why the Framers assigned
Building & Loan Association 1'. Blaisdelly. It is only
to the judiciary the task of protecting the Constitution
then. out of a necessity imposed by contemporary
as written. They were under no illusions that this would
conditions. that the Constitution changes its meaning.
prove to be an easy task. Nevertheless, they had reason
to believe that they had written a constitution that
deserved to endure and, properly guarded. would en-
"
dure. Hence, Madison spoke out forcefully against
their concern was not to keep the
Thomas Jefferson's suggestion of frequent constitution-
Constitution in tune with the times but,
al appeals to the people because, among other reasons,
rather, to keep the times, to the extent
he hoped it would become an object of veneration, and
a constantly changing constitution cannot be venerat-
possible, in tune with the Constitution."
ed.² Marshall had this Madisonian passage in mind
when, in his opinion for the Court in Marbury's case, he
wrote:
The living Constitution school also claims to have a
That the people have an original right to establish, for their
source more venerable than legal realism or Ronald
future government. such principles as, in their opinion, shall
Dworkin. One constitutional scholar. C. Herman Prit-
most conduce to their own happiness. is the basis on which
chett. a former president of the American Political
the whole American fabric has been erected. The exercise of
Science Association. argues that the idea of a 'living
this original right is a very great exertion: nor can it, nor ought
it. to be frequently repeated. The principles, therefore, so
Constitution
can trace its lineage back to John
established. are deemed fundamental: and as the authority
Marshall's celebrated advice in McCulloch v. Maryland
from which they proceed is supreme, and can seldom act, they
(1819): 'We must never forget that it is a Constitution
are designed to be permanent.
we are expounding
intended to endure for ages to
come. and consequently to be adapted to the various
The Framers knew that the passage of time would
crises of human affairs. The words quoted here are
surely disclose imperfections or inadequacies in the
certainly Marshall's, but the opinion attributed to him is
Constitution, but these were to be repaired or remedied
at odds with his well-known statements that, for exam-
by formal amendment, not by legislative action or
ple. the "principles" of the Constitution "are deemed
judicial construction (or reconstruction). Hamilton (in
fundamental [and] permanent" and, except by means of
The Federalist, No. 78) was emphatic about this:
formal amendment. "unchangeable" (Marbury v. Madi-
Until the people have, by some solemn and authoritative act,
son). But the discrepancy is not Marshall's: it is largely
annulled or changed the established form. it is binding upon
the consequence of the manner in which he is quoted:
them collectively. as well as individually; and no presumption,
30 PHI KAPPA PHI JOURNAL
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M
Living Constitution?
or even knowledge of their sentiments. can warrant their
conditions. This we did in Article V of the Constitution,
representatives in a departure from it prior to such an act.
the amending article. which prescribes the forms to be
followed when exercising that power in the future.
The Congress, unlike the British Parliament, was not
What we were not permitted to do in 1787-88 was to
given final authority over the Constitution, which partly
deprive-or pretend to deprive-our posterity of their
explains why the judicial authority was lodged in a
natural right to do in the future what we did in 1776. Nor
separate and independent branch of government. In
could we, by pretending to delegate it to Congress, the
Britain the supreme judicial authority is exercised by a
president. or the Supreme Court, deprive them of their
committee of the House of Lords. which is appropriate
sovereign power to change the Constitution.
in a system of parliamentary supremacy. but. although
it was suggested they do so, the Framers refused to
follow the British example. The American system is one
of constitutional supremacy, which means that sover-
eignty resides in the people, not in the King-in-Parlia-
W
hat I have attempted to do here is provide
(within a very brief compass indeed) an
ment: and the idea that the Constitution may be
accurate statement of the principles underly-
changed by an act of the legislature-even an act
ing the American Constitution: pointing to (but by no
subsequently authorized by the judiciary-is simply
means elaborating) the political theory from which they
incompatible with the natural right of the people to
derive and the constitutional conclusions to which they
determine how (and even whether) they shall be gov-
lead. Among the latter is the untenability of the proposi-
erned.
tion that constitutional limitations can be jettisoned,
Unlike in Britain where, formally at least, the queen
constitutional power enhanced, or the constitutional
rules by the grace of God (Dei gratia regina). American
division of powers altered. by means other than formal
government rests on the consent of the people; and,
constitutional amendment. It may sometimes be conve-
according to natural right. the consent must be given
nient to allow the Senate to originate a bill "for raising
revenue." but convenience is not a me: sure of constitu-
formally. In fact, it must be given in a written compact
entered into by the people. Here is Madison on the
tionality. There is much to be said in favor of the
compacts underlying American government:
legislative veto-Who would. in principle, deny the
need of checks on administrative agencies?-but, as the
Altho' the old idea of a compact between the Govt. & the
Supreme Court correctly said, the Framers anticipated
people be justly exploded. the idea of a compact among those
that Congress might find reason to employ such devices
who are parties to a Govt. is a fundamental principle of free
and. when designing the so-called presentment clause in
Govt.
Article I. Section 7. forbade them (Immigration and
The original compact is the one implied or presumed. but
Naturalization Service 1'. Chadha). And from a particu-
nowhere reduced to writing, by which a people agree to form
lar partisan perspective it is surely frustrating, simply
one society. The next is a compact. here for the first time
reduced to writing. by which the people in their social state
because the required number of states had not yet
agree to a Govt. over them. [In a letter to Nicholas P. Trist
ratified the Equal Rights Amendment. to be denied the
dated February 15. 1830.]
power to promote the cause of sexual equality; but
frustration alone cannot justify a judicial attempt to
Neither civil society (or as Madison puts it. "the
preclude the necessity of formal ratification.3 Those
people in their social state") nor government exists by
who would have it otherwise, who insist that it lies
nature. By nature everyone is sovereign with respect to
within the powers of the Court (or the Congress or the
himself, free to do whatever in his judgment is neces-
executive) to effect constitutional change. can be
sary to preserve his own life-or, in the words of the
charged with a lack of respect for the principles on
Declaration of Independence, everyone is endowed by
which "the whole American fabric has been erected."
nature with the rights of life, liberty. and the pursuit of a
We are told that it is unreasonable-even foolish-to
happiness that he defines for himself. Civil society is an
expect that the Framers could have written a Constitu-
artificial person (constituted by the first of the com-
tion suitable alike for a society of husbandmen and a
pacts) to which this real person, acting in concert with
society of multinational corporations, to say nothing of
others. surrenders his natural and sovereign powers;
one as well adapted to the age of the musket and sailing
and it is civil society that institutes and empowers
ship as to the age of intercontinental nuclear-tipped
government. So it was that "We [became] the People of
missiles. As the problems have changed, the argument
the United States" in 1776 and, in 1787-88, that we
goes, SO must the manner in which they are confronted
ordained and established "this Constitution for the
and solved, and the Constitution cannot be allowed to
United States of America."
stand in the way. Indeed. there is no reason to allow it
In this formal compact we specified the terms and
to stand in the way because, it is said, the Framers
conditions under which we, "ourselves and our posteri-
intended it to be flexible. Ironically, the very case cited
ty." would be governed: granting some powers and
in support of this conclusion. when properly read,
withholding others, and organizing the powers granted
demonstrates that John Marshall, at least, saw no need
with a view to preventing their misuse by the legislative,
for flexibility in the Constitution.
the executive, and the judicial branches alike. We were
As every student of constitutional law will remember,
authorized by natural right to do this, and we were
the initial and narrow question presented by McCulloch
authorized to act on behalf of our posterity only insofar
V. Maryland was whether Congress had the authority to
as we respected their right to change those terms and
charter a bank, but. as he was accustomed to doing in
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A1
these early constitutional cases, Marshall chose to
writ of habeas corpus" and when unappropriated mon-
address the much broader issue of the general scope of
ey may be "drawn from the treasury.") As to the
national powers. The Constitution must be construed
specific prohibitions listed in the Bill of Rights, their
to,
role in limiting the national government is grossly
allow to the national legislature that discretion. with
exaggerated. Prior to 1925 when, in Gitlow V. New
respect to the means by which the powers it confers are to be
York. the Court began the process by which the Bill of
carried into execution. which will enable that body to perform
Rights was made applicable to the states. there were
the high duties assigned to it. in the manner most beneficial to
only fifteen cases in which a government action was
the people.
held to conflict with any of its provisions; one of these
was Dred Scott V. Sandford (scarcely a monument to
Having said this, Marshall proceeded to offer this rule
liberty) and another was Hepburn V. Griswold, which
of construction:
was promptly overruled. Not once during these first 136
Let the end be legitimate, let it be within the scope of the
years did the Supreme Court invalidate an act of
constitution, and all means which are appropriate, which are
Congress on First Amendment grounds. This did not
plainly adapted to that end, which are not prohibited, but
occur, in a speech case, until 1965 and, in a religious
consist with the letter and spirit of the constitution. are
case, until 1971 (Lamont V. Postmaster General, and
constitutional. [McCulloch V. Maryland]
Tilton V. Richardson).
But how do we determine whether an end is legiti-
This record confirms the Founders' judgment that
mate? Except in the Preamble. to which Marshall does
limitations would be enforced not by these "parchment
not refer, the Constitution does not speak of ends.
barriers." but by the constitutional structure itself.
Instead. it speaks of powers, and it is from these
They defined tyranny as the "accumulation of all pow-
powers-to tax. borrow, regulate commerce, make
ers, legislative, executive. and judiciary, in the same
war. and so forth-that Marshall infers the end, which,
hands. whether of one, a few. or many, and whether
to put it simply, is the large. busy. wealthy. powerful,
hereditary, self-appointed. or elective" (The Federalist,
commercial republic, the sort of republic that is likely to
No. 47). and the structure they contrived was designed
get into trouble with its nonrepublican neighbors.
to prevent that accumulation. Most to be feared was the
["Throughout this vast republic. from the St. Croix to
accumulation of all powers into the hands of a factious
the Gulf of Mexico. from the Atlantic to the Pacific.
majority, and to prevent that they designed the institu-
revenue is to be collected and expended. armies are to
tional arrangements familiar to any student of The
be marched and supported" (McCulloch 1. Maryland).
Federalist: a regular distribution of power into distinct
The United States was not intended to be a simple
departments, a system of legislative balances and
society of husbandmen.] Thus, the powers enumerated
checks. an independent judiciary, a system of represen-
in the Constitution point to the end, and the end begets
tation. and an enlargement of the orbit "within which
the means. Clearly. as Marshall expounds it. the Consti-
tution empowers Congress (and, more broadly, the
national government) to do whatever is required to meet
"This record confirms the Founders'
"the various of human affairs." The powers, not
the Constitution. are flexible, and whether the powers
judgment that limitations would be en-
should be exercised depends largely on the assessment
forced not by
'parchment barriers,'
by Congress of circumstances. Necessary and proper
comes to mean "advantageous," or at the "discretion"
but by the constitutional structure itself.
of Congress.4
Yet. as Marshall also emphasizes, "the government
of the Union [though] supreme within its sphere of
such systems are to revolve. Together these institu-
action, [is] limited in its powers. It might therefore be
tions constitute a structure designed to insure that the
asked how a government empowered to do what it finds
country will be governed not by simple majorities but
"advantageous" is nevertheless limited in what it might
by constitutional majorities.
do-or limited in what it does. The answer is to be
A simple majority is one assembled-by a populist or
found in the way the Constitution imposes limits. Our
a demagogue, for example-directly in and from the
inclination today is to point to the provisions where
people: it was to be feared because it would almost
Congress is explicitly forbidden to do certain things.
certainly misuse the powers it gained. A constitutional
But. in the original, unamended Constitution. those
majority is one assembled in the governing process, and
provisions are very few indeed: almost all of them are to
its constituent elements are representatives of the peo-
be found in the ninth section of Article I. and almost
ple. For the reasons elaborated in The Federalist, and
none of them amounts to a severe restriction on the
especially in The Federalist No. 10. such a majority
powers that Congress might find "advantageous" to
could more readily be trusted not to misuse the great
exercise. (Congress is not likely to grant a title of
powers it would enjoy. Those powers are sufficient to
nobility or prefer the ports of one state over another, OF
allow the government to meet "the various crises of
[with reference to Article VI] to prescribe a religious
human affairs" constitutional changes are required
test. And, as Abraham Lincoln demonstrated. the Con-
in this respect-and to the judges is assigned the duty,
stitution allows the president to decide when the "pub-
as "faithful guardians of the Constitution," to preserve
lic safety" requires suspension of "the privilege of the
the integrity of the structure, for it is by the structure
32 PHI KAPPA PHI JOURNAL
8-23-84
sp
(more than by "parchment barriers") that the govern-
2. The Federalist. No. 49. Jefferson. who advocated the periodic
ment is limited. It would be only a slight exaggeration to
exercise by the people of their right of revolution. might be the
say that, in the judgment of the Founders. the Constitu-
exception to my statement about the Founders.
3. In Frontiero V. Richardson (411 U.S. 677 [1973]). the Supreme
tion would "live" as long as that structure was pre-
Court was divided on the issue of whether sex, like race, should be
served.
treated as a suspect classification. We are told that Justice Brennan
Notes
circulated a draft opinion in which he proposed to declare classifica-
1. We should note that Dworkin rightly criticizes legal positivism for
tion by sex virtually impermissible and that he knew this would have
insisting that a legal system can be understood in terms only of rules
the effect of "enacting" the pending Equal Rights Amendment. "But
which are considered legitimate when properly enacted. These rules.
Brennan was accustomed to having the Court out in front. leading any
he says. derive from moral principles. and these principles constitute
civil rights movement." Hence. we are further told, he saw "no
an integral part of the legal system. So far, so good: the greatest of our
reason to wait several years for the states to ratify the amendment."
judges-John Marshall, for example-have always repaired to the
(Bob Woodward and Scott Armstrong. The Brethren: Inside the
principles which. they insisted. were to be found in the political
Supreme Court [New York: Simon and Schuster. 1979). p. 254.) No
philosophy that informed the Framers of the Constitution. Dworkin.
reason, that is. other than the fact. which Brennan implicitly acknowl-
however, ignores their example. Instead. he begins by finding those of
edged. that the Constitution as then written. and which had not yet
our "intuitions" that conform to our contemporary "moral sense."
been rewritten by the only people authorized to rewrite it, did not
and. with them. proceeds to "construct" a model of justice built on
support the rule he would have the Court hand down.
the rights each individual has against all other individuals. He calls
4. McCulloch v. Maryland. at p. 419. "But where the law is not
these "natural rights" (although. unlike John Locke. for example, he
prohibited. and is really calculated to effect any of the objects
does not even attempt to demonstrate that they are intrinsic to man as
entrusted to the government. to undertake here to inquire into the
man). and he simply posits as fundamental the right to "equal concern
degree of its necessity, would be to pass the line which circumscribes
and respect." a right he never defines with any precision. Not at all
the judicial department. and to tread on legislative ground. This court
strangely. this account of rights allows him to end where he probably
disclaims all pretensions to such a power. (Id., at p. 423.)
wanted to end: with an argument that supports "precisely those
5. 1d., at p. 405.
reactions to current policy issues that a conventional liberal academi-
6. The Federalist, No. 9. For a more comprehensive discussion of
cian is likely to have.' (See Thomas Pangle, "Rediscovering Rights."
these questions see Walter Berns. "The Constitution as Bill of
The Public Interest. No. 50 [Winter 1978]. p. 159.) Civil disobedience
Rights." in Robert A. Goldwin and William Schambra (eds.), How
is a right. he says. and so is conscientious objection to the draft: but
Does the Constitution Secure Rights? (Washington, DC: American
property rights find almost no support in his system.
Enterprise Institute. forthcoming 1984).
Burger-continued from page 28
battle: Marbury, the Federalist. had lost; but the real
will watch the watchmen? This was a concern to some
war. the great "war" over the supremacy of the Su-
of those who opposed ratification of the Constitution.
preme Court in constitutional adjudication. had been
Anti-Federalist commentator "Brutus" argued that
won by the Court-and by the country. Not for fifty-
"this power in the judicial. will enable them to move the
four years after Marbury did the Court hold another act
government into almost any shape they please.' Anoth-
of Congress unconstitutional. although in Martin 1'.
er Anti-Federalist, "A Columbia Patriot, similarly
Hunter's Lessee (1816). Justice Joseph Story for the
wrote: "There are no well-defined limits of the Judicial
Court firmly asserted the power of the Supreme Court
Powers. they seem to be left as a boundless ocean."
to invalidate a state statute contrary to the federal
It is clear that when Congress disagrees with the
Constitution.
judicial interpretation of a statute, Congress can enact a
As with so many great conceptions. the idea of
new statute that supersedes that judicial interpretation.
judicial review of legislation now seems simple and
Congress has done this many times in our history.
inevitable in the perspective of history. The people of
Similarly, in four instances Congress and the state
the states delegated certain powers to the national
legislatures have overridden a Supreme Court opinion
government and placed limits on those powers by
through constitutional amendment. Furthermore, when
specific and general reservations. After having flatly
appointments are made to the Supreme Court, it is
stated certain guarantees relating to religious freedom.
surely not unnatural that presidents try to appoint,
to speech, to searches, seizures. and arrests. would it
subject to Senate confirmation. justices who they hope
be reasonable to think that Congress and the executive
will interpret the Constitution "properly." President
could alter those rights? Standing alone, the explicit
Franklin D. Roosevelt failed in his effort to control the
procedures carefully providing for constitutional
Supreme Court by seeking to increase it to fifteen
amendments negate the idea that a written constitution
justices: yet in his four terms, he appointed eight
could be altered by legislative or executive action. The
justices.
language of Article III vesting judicial power "in one
It is true that in the tenure of office of all federal
Supreme Court" for "all Cases. in Law and Equity,
judges. so essential to their independence, there is risk
arising under this Constitution. the Laws of the United
that power can be abused. but three tiers of federal
States. and Treaties
would be sterile indeed if the
courts have mitigated that risk, although not always to
Supreme Court could not exercise that judicial power
every person's satisfaction. The Draftsmen were aware
by deciding cases involving conflicts between the Con-
of those risks, but the risks were unavoidable, since
stitution, federal laws, and treaties on the one hand, and
"someone must decide."
acts of Congress, the executive or states on the other.
Chief Justice Harlan Fiske Stone reminded all federal
Given the extraordinary power that judicial review
judges that "the only check upon our own exercise of
vests in the judiciary, the question may be raised: Who
power is our own sense of self-restraint.'
and
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C
Orrin G. Hatch
ivic Virtue:
Wellspring of Liberty
Lee Anderson
T
he constitutional watchwords of recent genera-
tions have been "liberty" and "equality." In-
voking these august principles, litigants have
flooded federal courts with relentless requests for new
individual rights. These judicial contests are often char-
acterized by claimants citing statements of the Framers
of the United States Constitution to justify their unprec-
edented libertarian or egalitarian claims. No doubt
liberty and equality under the law were primary objec-
tives in an era devoted to the achievement of lasting
independence. Nevertheless. the Framers of the Consti-
tution were convinced that these lofty aspirations could
be nurtured and realized only in a climate of civic
virtue.
Recent generations have devoted great energies 10
"The Ten Commandments." frieze above the Supreme Court
the pursuit and protection of individual rights. While
bench.
there is much to commend in these efforts, they have
not been matched by an equivalent zeal to encourage
any despotic or oppressive form so long as there is any virtue
individual responsibilities. Early Americans, who
in the body of the people.
prized their dearly won right to vote. might marvel upon
Like many of President Washington's sentiments. his
learning how few eligible voters today go to the polls.
conviction that virtue precedes liberty and human rights
Early Americans, who built a prosperous nation on
was more than his own opinion or even the opinion of a
principles of self-reliance. might wonder at the modern
majority: it was fundamentally accepted and presumed
emphasis on statist controls and citizen entitlements.
by the creators of our government.
Early Americans, who fought the Revolutionary War as
This presumption did not originate with the Framers
volunteers, might express surprise upon learning of the
but was an American adaptation of centuries of philo-
enormous efforts necessary in our day to secure person-
sophical examination of the conditions necessary to
nel for military service. Early Americans. educated at
preserve liberty. Writing in the seventeenth century,
their parents' knees or in one-room schoolhouses,
the French philosopher Montesquieu. credited with
might question whether the billions spent on national
laying the foundation for our separation-of-powers doc-
education today will be directly responsible for produc-
trine. concluded: "Fear is the principle of a despotic,
ing many George Washingtons. Early American parents
honour of a kingly, and virtue is the principle of a
might express revulsion upon learning of the rampant
republican government." Edmund Burke, the re-
drug epidemic and the accompanying violent crime
nowned philosopher and celebrated member of Parlia-
epidemic in modern America, and they might marvel
ment. explained why virtue is indispensable to a free
that their progeny has neglected many virtues accepted
society:
as duties by their generation.
Standing beside the cradle of the new government,
Men are qualified for civil liberty in exact proportion to their
the Framers were convinced that the endurance of the
disposition to put moral chains on their appetites
in
Republic depended on inspiring individual responsibil-
proportion as they are more disposed to listen to the counsels
of the wise and good in preference to the flattery of knaves.
ity. In the words of James Madison. "all our political
experiments rest on the capacity of mankind for self-
government." Nine years prior to assuming the chair-
ORRIN G. HATCH has represented Utah in the United
manship of the Constitutional Convention, George
States Senate since 1976. He is chairman of the Sub-
Washington explained the relationship between individ-
committee on the Constitution and is the author of
ual rights and civic virtue:
Public Law 98-101 to "(establish) a Commission on the
Human rights can only be assured among a virtuous people.
Bicentennial of the United States Constitution." He is
The general government
can never be in danger of
also chairman of the Committee on Labor and Human
degenerating into a monarchy, an oligarchy. an aristocracy, or
Resources.
34 PHI KAPPA PHI JOURNAL
8-23-84
Civic Virtue
Society cannot exist unless a controlling power upon will and
their elected leaders. In the words of George Mason,
appetite be placed somewhere, and the less of it there is
"all governments were drawn from the people, though
within, the more there must be without. It is ordained in the
many were perverted to their oppression." Citing the
eternal constitution of things. that men of intemperate minds
absence of explicit protections for many fundamental
cannot be free. Their passions forge their fetters.
human rights, the Anti-Federalists contended that the
Burke presented the choice as the generation of the
Constitution was inadequate to protect liberty against
Framers perceived it: either employ dictatorial police
corrupt governors.
powers to maintain order by force or place strict limits
The Federalists responded that the elected leaders
upon governmental powers and rely upon citizens to
would be no more corrupt than the people they repre-
govern their own passions. Under England's rule, the
sent:
power and might of the king forced compliance with
those basic standards of conduct necessary to preserve
To suppose that any form of government will secure liberty or
happiness without any virtue in the people. is a chimerical
order. When "the people are king," as Gouverneur
idea. If there be sufficient virtue and intelligence in the
Morris exclaimed during the Convention, the people
community. it will be exercised in the selection of these men;
must exercise self-control or risk anarchy and tyranny.
so that we do not depend upon their virtue or put confidence
In the first attempts at constitution writing in Ameri-
in our rulers. but in the people who are to choose them.
ca, no effort was made to define or explicate the
concepts of liberty or equality. but five of the state
In The Federalist No. 76, Alexander Hamilton noted
constitutions adopted prior to 1787 carefully identified
that "the institution of delegated powers implies that
the principal elements of the prevailing notions of
there is honor and virtue among mankind." Indeed a
virtue. The Pennsylvania and Vermont Constitutions
Republican government," asserted Madison in The
specified that "a frequent recurrence to fundamental
Federalist No. 55, "presupposes these qualities in a
principles, and a firm adherence to justice, moderation,
higher degree than any other form."
temperance, industry. and frugality are absolutely nec-
At length. the heat and high stakes of this intellectual
essary to preserve the blessings of liberty and keep a
battle moved Madison to unleash a harsh attack on the
government free
Massachusetts adopted the
Anti-Federalists' assumptions about the virtue of the
Pennsylvania formulation but added "piety" to the list
Nation:
of qualities. New Hampshire replicated the Massachu-
setts formulation. but deleted "piety." Virginia, the
Were the pictures which have been drawn by the political
first state to develop a contract with the governed.
jealousy of some among us faithful likenesses of the human
character. the inference would be that there is not sufficient
included virtue in its list. Each of these early testing
grounds for the great 1787 experiment affirmed that the
virtue among men for self-government: and that nothing less
than the chains of despotism can restrain them from destroy-
prevalence of certain voluntary standards of conduct
ing and devouring one another.
was a prerequisite for preserving national liberty.
In September of 1787. the thirty-nine men who signed
This debate came to a conclusion on April 30, 1789,
the Constitution for a nation of barely 4 million had
when the first president to serve under the new "su-
witnessed the willingness of countless friends to sacri-
preme law of the land" was inaugurated. The Anti-
fice for the cause of self-government. They had heard
Federalists' warnings. however, prompted President
the warning of the revered Benjamin Franklin that the
Washington to heal the wounds by calling for a bill of
new government might "be well administered for a
rights. The recognized need for voluntary national
course of years." but would "end in despotism. as
virtue was tempered somewhat by constitutional pro-
other forms have done before it, when the people shall
tections against abuse of power. On the eve of the
have become so corrupted as to need despotic govern-
Bicentennial of the Constitution. generations of Ameri-
ment. being incapable of any other." Franklin embel-
cans should be genuinely grateful to the Federalists and
lished this thought outside the Convention: "Only a
Anti-Federalists alike for the prolonged debate over
virtuous people are capable of freedom. As nations
virtue which produced the Constitution and its first ten
become more corrupt and vicious. they have more need
amendments.
of masters." The delegates shared James Madison's
observation that his fellow Americans must "perceive
in [the Constitution] a finger of that Almighty hand
which has been so frequently
extended to our relief
he warnings of the Anti-Federalists have not lost
in the critical stages of the revolution." Often the
T
their relevance. In fact. they have been contin-
debates over constitutional provisions turned on the
ually underscored by succeeding philosophers.
delegates' various assumptions about the capacity of
These cautions are particularly compelling when they
the people for the virtuous conduct required for self-
come from visitors and newcomers to the United
government.
States. The noted French jurist Alexis de Tocqueville
The submission of the Constitution to the states did
admonished later generations that "America is great
not signal an end to the national search for the most
because she is good, and if America ever ceases to be
virtuous form of government. Three notable delegates
good, America will cease to be great." Austrian immi-
refused to sign and launched an Anti-Federalist cam-
grant and social commentator Francis Grund echoed:
paign to prevent its ratification. They contended that
Change the domestic habits of the Americans, their religious
the people might be virtuous, but power would corrupt
devotion, and their high respect for morality, and it will not be
NATIONAL FORUM 35
8-23-84
necessary to change a single letter in the Constitution in order
avert those desolating judgments with which we are threat-
to vary the whole form of their government.
ened
These enlightened warnings ring just as loudly today
Barely a year later those prayerful entreaties for
as they did in our nation's infancy. They call to mind the
deliverance took concrete form in the Declaration of
Framers' primary concern that their work pass from
Independence:
generation to generation. The Framers recognized,
We hold these truths to be self-evident. that all men are
however. that the odds were against them. Other na-
created equal, that they are endowed by their Creator with
tions had striven to establish a limited government for a
certain unalienable Rights, that among these are Life, Liberty
virtuous society only to witness its destruction. The
and the pursuit of Happiness.-That to secure these rights,
early. great democracies of Greece and Rome ended in
Governments are instituted among Men, deriving their just
tyrannical dictatorships. Contemporary history also
powers from the consent of the governed
confirmed their fears as the republics of Poland. Hunga-
Thus the Nation's first official act sprang from the
ry, Austria. Italy. Switzerland, and most notably
Judeo-Christian faith that the creator endowed men
France had perished in horror just years after their
revolutionary births.
with inalienable rights, the defense of which was the
These terrifying precedents must have weighed
purpose of government. Again this concept is best
heavily upon the mind of George Washington when he
articulated by President Washington:
arose to bid America farewell as its president. Washing-
No people can be bound to acknowledge and adore the
ton must have pondered what it would take to preserve
Invisible Hand which conducts the affairs of men more than
American democracy when so many others had failed.
those of the United States. Every step by which they have
His answer was simple and profound:
advanced to the character of an independent nation seems to
have been distinguished by some token of providential agency
Of all the dispositions and habits which lead to political
the foundation of our national policy will be laid in the
prosperity, religion and morality are indispensible [sic] sup-
pure and immutable principles of private morality.
ports,
let us with caution indulge the supposition that
morality can be maintained without religion. Whatever may be
conceded to the influence of refined education on minds of
peculiar structure, reason and experience both forbid us to
expect that national morality can prevail in exclusion of
"Standing beside the cradle of the new
religious principle.
government, the Framers were convinced
George Washington was not alone in arriving at this
that the endurance of the Republic de-
answer to the Framers' greatest question. President
John Adams affirmed that "our Constitution was made
pended on inspiring individual responsi-
only for a moral and religious people. It is wholly
bility."
inadequate to the government of any other.' Supreme
Court Justice Joseph Story declared: "Piety, religion,
and morality are intimately connected with the well-
being of the state, and indispensable to the administra-
In the minds of the Framers and early leaders of this
tion of civil justice. It is indeed difficult to conceive how
Nation, the American experiment in self-government
any civilized society can well exist without them.'
would work because the people were virtuous; they
Likewise, de Tocqueville's poetic answer has been
were virtuous because they were moral: and they were
often quoted:
moral because they were religious. Will and Ariel
I sought for the greatness and genius of America in her
Durant, scholars of human history from the early civili-
commodious harbors and her ample rivers, and it was not
zations to the present. likewise conclude "[t]here is no
there: in her fertile fields and boundless prairie, and it was not
significant example in history
of a society success-
there: in her rich mines and vast commerce. and it was not
fully maintaining moral life without the aid of religion."
there. Not until I went to the churches of America and heard
Unlike failed democracies, America would be secure in
her pulpits aflame with righteousness did I understand the
its liberty by adherence to principles of civic virtue.
secret of her genius and power.
Thus, the First Congress often authorized federal assist-
ance for religious educators. For instance, the North-
This was not a new answer to the abiding question. It
west Ordinance of 1787 explained Congress's commit-
could almost be termed "the American answer. Even
ment to aiding moral education: "Religion, morality,
prior to the Declaration of Independence, the Continen-
and knowledge. being necessary to good government
tal Congress had repeatedly called upon the fledgling
and the happiness of mankind. schools, and the means
nation to observe days of "publick humiliation. fasting
of learning shall forever be encouraged."
and prayer" as well as days of "thanksgiving." On June
The First Congress, however. perceived danger in
12. 1775. it issued a communication from Philadelphia
allowing any single sect to gain preeminent recognition
to the thirteen colonies:
by the federal government. A government-sponsored
that we may with united hearts and voices unfeignedly
orthodoxy would stifle, rather than promote, healthy
confess and deplore our many sins, and offer up our joint
religious liberty. Accordingly, when state ratification
supplications to the all-wise, omnipotent, and merciful Dis-
debates suggested that a bill of rights would be neces-
poser of all events
to remove our present calamities, to
sary to preserve national confidence in the new Consti-
36 PHI KAPPA PHI JOURNAL
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L10
Civic Virtue
tution. James Madison produced an initial draft to
did not mean the First Amendment to erect an impene-
provide specific protections for religious liberty: "The
trable wall between church and state. Jefferson himself,
Civil rights of none shall be abridged on account of
when prescribing curricula for the University of Virgin-
religious belief or worship, nor shall any national reli-
ia, planned to include religious teachings in a way
gion be established. Madison clearly meant to pre-
calculated to encourage morality and a belief in God
clude Congress from establishing a single national reli-
while avoiding preferential elevation of one sect over
gion or from giving special preferences to any single
another. Either Jefferson's "wall" was easy to climb, or
sect.
he agreed with Madison that the establishment clause
merely prohibited creation of a theological republic.
The controversial Supreme Court rulings on the First
Amendment have spawned concerted efforts in recent
"Washington must have pondered what it
Congresses to restore the historic meaning of the estab-
would take to preserve American democ-
lishment clause. During the Ninety-eighth Congress, a
constitutional amendment restoring the right of states
racy when so many others had failed."
and localities to authorize voluntary school prayer
garnered fifty-six votes in the Senate-a solid majority,
but still short of the two-thirds necessary for approval.
This majority vote will certainly perpetuate the effort to
This language underwent numerous revisions in the
reverse the Supreme Court's rulings by constitutional
legislative crucible of the First Congress. but Madison
amendment.
stated that his original objective remained uncompro-
The effort in Congress is not limited to school prayer
mised. Hence, the amendment would permit nondis-
debate. As chairman of the Constitution Subcommittee,
criminatory governmental support for religion in gener-
I have witnessed the introduction of hundreds of consti-
al. The First Congress confirmed this intent by enacting
tutional amendments for congressional consideration.
several laws providing federal assistance for religious
In recent years, the bulk of these amendments have
education.
been proposed, not to reform the Constitution, but to
Justice Story's understanding of the First Amend-
restore the intent of the Framers to the words of the
ment was identical to that of its author as noted in his
Constitution. Regardless of the merits of each of these
landmark treatise Commentaries on the Constitution:
proposals, it is significant that the advocates of most
"The real object of the amendment was
to prevent
current constitutional-amendment proposals state as
any national ecclesiastical establishment which would
their objective the restoration of the Constitution's
give to an hierarchy the exclusive patronage of the
original meaning that has been altered by subsequent
national government." The speeches of Congressmen
court interpretations.
Samuel Livermore and Elbridge Gerry in the First
Some recent decisions of the Burger Court have
Congress. and of other authors of the amendment and
permitted accommodations between government and
countless subsequent interpreters of their intent. sup-
religion. such as allowing chaplains to be employed by
port the reading Madison and Story gave this language.
legislatures, allowing tuition tax credits for parents of
Revisiting briefly the historical origins of the First
children attending private religious schools, and allow-
Amendment is important as a contrast to modern inter-
ing local governments to sponsor and exhibit nativity
pretations of our constitutional protections for freedom
scenes. Nonetheless the "wall of separation" doctrine
of religion. In 1947. the Supreme Court departed from a
continues to bar or threaten to bar many important
reading of the First Amendment which had prevailed for
expressions of religious values from public life. This
nearly 170 years (Everson V. Board of Education). The
position. as stated earlier, is rather difficult to reconcile
Court concluded that "the clause against establishment
with the opinions of direct participants in the drafting of
of religion by law was intended to crect a 'wall of
the Bill of Rights. For instance, George Washington
separation between church and state.' Applying this
stated in his first inaugural address that our government
reasoning, the Court declared in 1962 that voluntary
cannot afford to be neutral concerning "the eternal
classroom recitation of a nondenominational prayer
rules of order and right which Heaven itself has or-
composed by a state school board was unconstitutional
dained." Justice Potter Stewart correctly apprehended
(Engel 1. Vitale). The following year, the Court over-
that the Supreme Court decisions deprive American
turned state laws encouraging the reading of selected
children of "the opportunity of sharing in the spiritual
scriptures at the outset of the public school day (Abing-
heritage of our Nation" and that "religion is placed at
ton V. Schempp and Murray 1. Curlett). According to a
an artificial state-created disadvantage" in our public
report of the Committee on the Judiciary of the United
institutions. Again. the current regime is hard to square
States Senate, these cases rendered laws in more than
with de Tocqueville's observation that religion was
forty-one states unconstitutional.
America's "foremost political institution."
Advocates of this recent interpretation of the estab-
It is startling to compare the observations of modern
lishment clause generally rely on Thomas Jefferson's
immigrants and visitors such as Alexander Solzhenitsyn
statement about the "wall of separation." Although the
and Arianna Stassinopoulos with those of their prede-
Founders were ambivalent concerning the appropriate
cessors, de Tocqueville and Grund. At Harvard, Sol-
relationship between government and religion, histori-
zhenitsyn lamented: How did the West decline?
I
cal inquiry supports the thesis that these great leaders
am referring to the calamity of a despiritualized and
NATIONAL FORUM 37
8-23-84
irreligious humanistic consciousness
It will exact
man rights. the Framers' vision that the flower of
from us a spiritual upsurge. Stassinopoulos wrote:
freedom is nourished only in a virtuous garden seems to
"The delegation of religion and spirituality to the irra-
have eluded us. Fortunately, this Bicentennial com-
tional has been one of the most tragic perversions of the
memoration offers us an opportunity to reinvigorate our
great achievements of Western rationality, and the main
national commitment to these basic principles.
reason for the disintegration of Western culture."
It is as true today as it was 200 years ago that
These warnings, which echo 200 years later the Anti-
America's future depends on her people's capacity for
Federalists' and Framers' plaintive cries, should awak-
self-governance. America is only as strong as the char-
en us to the danger of forfeiting the advantages of a
acter and will of the people who comprise it. If ever
government backed by virtue.
more Americans are content to lean than are willing to
When Congress enacted my bill establishing a com-
lift or if more are content to surrender than are willing to
mission to commemorate the Bicentennial of the Con-
defend freedoms or if more are content to cheat than are
stitution. it noted that "the maintenance of the common
willing to enforce the law, freedom as we have enjoyed
principles that animate our republic depends upon a
it will soon become as much a relie of history as the
knowledge and understanding of their roots and ori-
glory of Rome and Greece. We carry the obligation to
gins.' Perhaps in no other area is our contemporary
pass to our children the freedoms entrusted to us.
understanding of the roots of the Constitution's princi-
Accordingly, we must be as committed to principies of
ples more lacking than in regard to the role of public
virtue as those who founded our republic. If we are so
virtue and the government's tacit approval and encour-
committed. nothing can prevent our nation from one
agement thereof in perpetuating our cherished liberties.
day celebrating the 400th anniversary of the signing of
With all our generation's emphasis on liberty and hu-
the Constitution.
Blaustein-continued from page 17
is the most pervasive. Further illustrations of United
tution was promulgated in 1935. Several constitutional
States constitutional influence as a result of military
changes have been made since that time, but they have
intervention are found in Cuba. Panama, Haiti. and
not diminished the American influence. Indeed, the
South Vietnam. and possibly other nations as well. Of
Philippines has roughly ninety years of experience with
course. this is a manifestation of colonialism. And this
United States-style, judicial opinions which used Unit-
came from the nation which. via its great Constitution.
ed States Supreme Court opinions as precedent. During
had solved the problem of colonialism!
these years. American models provided guidelines for
Commager wrote that:
much of the legislation there.
Thus far we have considered only part of the story of
No Old World nation had known what to do with colonies
the influence of the United States Constitution. We
except to exploit them for the benefit of the mother country.
have not even raised questions concerning the extent to
The new United States was born the largest nation in the
which commentators have ignored this influence. We
Western world and was, from the beginning and throughout
also have not considered the extent to which foreign
the 19th century. a great colonizing power with a hinterland
leaders perceived the Constitution's influence as incon-
that stretched westward to the Mississippi and, eventually, to
the Pacific. By the simple device of transforming colonies into
sequential or even detrimental to their countries. Why,
states. and admitting these states into the union on the basis of
for example, did stable government and the blessings of
absolute equality with the original states. the Founding Fa-
liberty fail to take root in the countries of South and
thers taught the world a lesson which it has learned only
Central America which became independent of Spain
slowly and painfully down to our own day.
early in the nineteenth century and employed various
copies of the Constitution? We have also avoided
United States influence on the post-World War II
allusions to the many ways in which the United States
constitutions of Germany and Japan are too extensive
Constitution has been improved upon both in rites of
and 100 well known to be repeated here.
passage and through pragmatic experience.
There was a United States influence in the drafting
Such studies as we have undertaken possess three-
and implementation of the South Vietnam Constitution
fold significance. First, by examining the influence of
of 1967. It was inevitable. Americans were running
United States constitutional concepts abroad, we can
almost everything in Saigon, and lawyering and consti-
learn which have traveled well-and are thus best for
tution making were not to be exceptions. Of this, I can
export. Second. by studying how the ideas of the
also report on the basis of personal experience.
United States Constitution fared in other times, in other
Constitutional ferment has now hit the Philippines-
societies, and under other circumstances, we can gain
again. A new constitutional convention will probably be
greater insights into our own understanding of the
called soon. and after much debate, either new amend-
Constitution. Third, in an era of competition in the
ments or an entirely new constitution will be forthcom-
world of ideas, we will be organizing the evidence of the
ing. But whatever the provisions. they will only be
successes-and failures-of American ideology in order
variations on the basic United States theme. The Re-
to proselytize individuals who must first understand and
public of the Philippines was under American sover-
appreciate before accepting and adopting the rule of
cignty from 1898 to 1946, and a Commonwealth Consti-
constitutional law.
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Wade H. McCree, Jr.
Liberties and Limited
Government
Lee Anderson
apportioned the power ceded by the states among three
separate branches.
Even within the coordinate branches there was a
further dispersal of power. For example, the Constitu-
tion provided that there should be two houses of the
national legislature, each to be elected by different
constituencies for different terms. Members of the
House of Representatives were to be elected by popular
vote for two-year terms. and members of the Senate
were given six-year terms so that no more than one-
Supreme Court, west pediment.
third would be chosen biennially: they were to be
selected, not by popular vote. but by the legislatures of
the several states. Also, although each state regardless
R
evolutions, and even less fundamental political
of population was to have two senators, the number of
upheavals, often release, far beyond the expec-
tation of the participants. the forces that hold
representatives would be determined by the population
of each state according to a formula that excluded
the social order together. History records instance after
Indians and included three-fifths of "other Persons,"
instance in which revolutionary leaders lost control of
the anomalous circumlocution for "slaves' -a word
their enterprise, resulting in a new regime that was often
less desirable than the one overthrown. Many patriots
that could not be written into a charter of liberty.
who have sown the wind have reaped the whirlwind.
Still, these provisions. designed to avoid a concentra-
The personal and individual goals of the several
tion of power. were thought by some Anti-Federalists to
leaders of the American Revolution were varied. but
be insufficient. and they insisted upon a bill of rights
there was an overwhelming consensus about securing
specifically limiting the powers of the central govern-
for the people a body of rights. painted with a broad
ment. Despite the logic of the arguments advanced by
brush in the Declaration of Independence. In his char-
the Federalists-that it was unnecessary to impose
acteristically persuasive language. Justice Louis Bran-
explicit limitations on the powers of a central govern-
deis declared in his famous dissenting opinion in Olm-
ment all of whose powers were conferred by express
stead V. United States (1928):
cessions from sovereign states-the risk of rejection of
the proposed Constitution persuaded the Federalists to
The makers of our Constitution undertook to secure condi-
promise the adoption of a declaration of rights to assure
tions favorable to the pursuit of happiness. They recognized
ratification without express conditions that might have
the significance of man's spiritual nature. of his feelings and of
required a second constitutional convention.
his intellect. They knew that only a part of the pain. pleasure
The campaign for ratification was successful, and the
and satisfactions of life are to be found in material things.
They sought to protect Americans in their beliefs, their
Constitution that was approved in 1788 was duly
thoughts. their emotions and their sensations. They conferred.
amended by the first ten amendments, the Bill of
as against the Government. the right to be let alone-the most
Rights. on December 15. 1791.
comprehensive of rights and the right most valued by civilized
The provisions of the Bill of Rights are familiar to
men.
most Americans, although many may have forgotten
that they were originally interpreted as limitations only
To protect this "right to be let alone." the Framers of
upon the power of the central government and were not
the Constitution were determined not to permit the
deemed applicable to the states. Many of us may not
power of government to be concentrated anywhere in
recall that Connecticut until 1818 and Massachusetts
sufficient magnitude to tempt anyone to its autocratic
until 1833 imposed taxes to support an established state
abuse. The proposed national government. which was
church.
to avoid the ineffectiveness of the weak government
As amended by the Bill of Rights, the Constitution
under the Articles of Confederation. was to be one of
can be regarded as having accomplished three goals. It
limited authority ceded to it by the sovereign states and
granted no more power than was absolutely necessary
WADE II. McCREE, Jr., is the Lewis M. Simes Profes-
for an efficient central government.
sor of Law at the University of Michigan. A federal
But even this design of federalism was not thought to
appeals court judge from 1966-1977. Professor McCree
afford sufficient protection from the apprehended possi-
served as solicitor general of the United States from
ble abuse by a national government. Thus. the Framers
1977-1981.
NATIONAL FORUM 39
8-23-84
decided what powers the states would cede to the
race or previous condition of servitude were all limita-
central government. it allocated these powers among
tions on the power of the states.
the three branches of the federal government, and it
Although clearly intended to accord full citizenship to
imposed specific limitations upon federal power.
former slaves, the Fourteenth Amendment was not so
A few limitations imposed on the powers of the
limited in its language, and its guarantees of equal
central government are found in the original articles of
protection and due process were asserted by the emerg-
the Constitution. For example. following the powers
ing entrepreneurial class that was leading the Industrial
expressly conferred on the Congress in Section 8 of
Revolution in America. So thoroughly was the Four-
Article I, several express prohibitions are set forth in
teenth Amendment preempted by the business commu-
Section 9. The Congress is forbidden to suspend the
nity that its original purpose was lost sight of, and in
privilege of the writ of habeas corpus except in case of
1896 the states were told in Plessy 1'. Ferguson that
rebellion or invasion, to pass a bill of attainder or ex
black people might be consigned to separate convey-
post facto law. to impose a capitation or direct tax
ances and other public or regulated activities so long as
except in proportion to population, to tax articles
the separate facilities were equal to those reserved for
exported from any state or to prefer the commerce of
the enjoyment of white people. Plessy deferred the
one state over another or to grant titles of nobility. Also
original promises of the Civil War amendments for more
forbidden was the power to prohibit the importation of
than a half century during which the Supreme Court
slaves before 1808. but again the provision carefully
applied the Fourteenth Amendment's due process
avoided the use of the word "slavery" in the national
clause to invalidate the legislative efforts of the states to
charter.
regulate the businesses whose growth and potential for
These limitations for the most part did not affect
harm alarmed many communities.
individual civil liberties and were augmented by the
This period was known as the era of substantive due
several provisions of the Bill of Rights which forbade
process because the courts. instead of regarding due
the Congress to establish a religion, to prohibit the free
process as mandating only fair procedures in regulating
exercise thereof. to abridge the freedom of speech or of
rights. regarded certain business activities as insulated
the press. or to deny the right of the people peaceably to
from all regulation even though there was no explicit
assemble and to petition the government for a redress of
substantive position forbidding legislative efforts to
grievances. It also prohibited infringement on the right
control abuses. The Court would invalidate a statute
to keep and bear arms. forbade the quartering of
considered to be arbitrary or unreasonable, and particu-
soldiers in homes in peacetime. and guaranteed freedom
lar attention was paid to legislation that sought to
from unreasonable searches and seizures: it mandated
regulate working conditions. One of the leading cases
grand jury indictment before prosecution for capital
illustrative of substantive due process is Lochner V.
crimes: it forbade double jeopardy and self-incrimina-
New York (1905) in which a New York statute limiting
tion: it forbade the deprivation of life. liberty. or
the working hours of bakers to ten a day and sixty a
property without due process of law and prohibited the
week was held to infringe the right of an employer to
taxing of private property for public use without just
contract with employees. and thus to deprive the em-
compensation. It guaranteed a speedy and public trial
ployer of due process.
by jury in criminal cases. mandated the right to confront
Similar decisions followed Lochner. but the Court
adverse witnesses. forbade excessive bail and the inflic-
was not consistent. For example. in Mueller V. Oregon,
tion of cruel and unusual punishment. and, in civil
a statute limiting the workday of women factory em-
trials, ensured the right to a jury except in petty
ployees to ten hours was upheld.
controversies.
Nevertheless. this period of substantive due process
was consistent with the fear of popularly controlled
state legislatures. It is quite certain, however, that the
he Constitution amended by the Bill of Rights
anti-majoritarian Framers of the Constitution never
T
was clearly an instrument designed to protect
contemplated that a business minority would invoke its
minorities, whether political. religious, econom-
protections.
ic. or ethnic, from possible tyranny at the hands of any
Substantive due process was abruptly abandoned in
majority that might control the central government.
1938 when the Supreme Court. upholding a minimum
After the Supreme Court took on the role of interpreter
wage statute in West Coast Hotel V. Parrish, said,
of the Constitution. the history of civil rights became
the community may direct its law-making power to
inseparable from the history of the Court. Viewed as an
correct the abuses which spring from [the] selfish
anti-majoritarian document. the charter served well the
disregard of the public interest
development of the fledgling heterogeneous nation.
Since the abandonment of substantive due process,
The Civil War dramatically marked the beginning of a
the Constitution still functions to protect minorities
shift in the locus of power from the states to the-central
from majoritarian excesses. but only when there are
government. The Thirteenth. Fourteenth. and Fifteenth
explicit limitations on the states or federal government.
Amendments. the Civil War amendments, banning slav-
This protection has become more significant in recent
cry, conferring national citizenship. forbidding the deni-
years because many of the express limitations in the Bill
al of due process. guaranteeing equal protection of the
of Rights have been held to restrict the states in the
law. ensuring the privileges and immunities of national
same way in which they do the federal government.
citizenship, and providing the right to vote regardless of
These limitations are held to be fundamental and part of
continued on page 45
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E. Dick Howard
The Constitution and Free
Expression
I
n fifteenth-century England, it was treason to call
Even so, American arguments for freedom of expres-
the king a fool or to suggest that his horse might
sion at the time of the break with the mother country did
stumble and break the king's neck. In the sixteenth
not reach the bounds marked by twentieth-century
and seventeenth centuries, trials for political libel were
jurisprudence but were shaped within eighteenth-centu-
common. John Milton. protesting the licensing of
ry understandings.
books. wrote in his Areopagitica (1644),
When Virginia's convention, meeting at Williamsburg
And though all the winds of doctrine were let loose to play
in May, 1776, instructed its delegates at Philadelphia to
upon the earth. so Truth be in the field. we do injuriously, by
introduce the resolution for independence, they also
licensing and prohibiting. to misdoubt her strength. Let her
formed a committee to write the first American state
and Falsehood grapple: who ever knew Truth put to the worst.
constitution. Largely the work of George Mason, that
in a free and open encounter?
constitution's declaration of rights declared that "any
citizen may freely speak. write, and publish his senti-
England's Licensing Act was repealed in 1695, yet
ments on all subjects, being responsible for the abuse of
the end of censorship brought with it no general free-
that right
In form. at least. this statement-
dom of expression. The law of seditious libel remained
abjuring prior restraint but preserving limits upon the
in full force and effect. As William Blackstone ob-
"abuse" of expression-was not far from the principle
served.
stated by Blackstone.
Every freeman has an undoubted right to lay what sentiments
A little more than a decade later. the Convention
he pleases before the public. but if he publishes what is
which had assembled at Philadelphia to revise the
improper. mischievous, or illegal. he must take the conse-
Articles of Confederation instead produced a new Con-
quences of his own temerity.
stitution. When that document went to the country for
Conviction in such cases-such as John Wilkes's con-
approval or rejection. the lack of a bill of rights, as
viction for publishing No. 45 of the North Briton
much as any other issue, became the stumbling block to
(attacking the king's speech in Parliament)-was made
ratification. Many of the ratifying states followed the
easier by the fact that the truth of the allegedly libelous
example of the Massachusetts convention and drew up
statement was no defense. Indeed. as the saying went.
lists of specific amendments. On Virginia's list, for
"The greater the truth. the greater the libel."
example, was an amendment which declared:
In the American colonies. the glimmerings of a less
That the people have a right to freedom of speech. and of
restrictive application of the law of libel appeared in the
writing. and of publishing their sentiments: that the freedom of
famous trial of John Peter Zenger, a newspaper publish-
the press is one of the great bulwarks of liberty, and ought not
er. New York's governor. William Cosby, was incensed
to be violated.
by Zenger's scathing attacks on his policies and had
At the first session of the Congress in 1789, James
Zenger arrested. At Zenger's trial for libel, his attorney,
Madison moved to add a bill of rights to the new
Andrew Hamilton, offered to prove the truth of the
Constitution. Tutored in the precepts of the Scottish
statements in Zenger's paper. but, following English
law. the judge maintained that the jury could decide
Enlightenment, Madison offered a free-speech amend-
only whether Zenger had in fact printed the statements:
ment which clearly seems to have been intended to give
protection far beyond that given by the common law as
whether they were libelous was for the judge to decide.
expounded by Blackstone. His draft stated that "no
In an eloquent plea to the jury, however, Hamilton
urged them "to see with their own eyes. to hear with
their own ears" in returning their verdict. The jury's
A. E. DICK HOWARD is the White Burkett Miller
verdict was one of not guilty.
Professor of Law and Public Affairs at the University of
Libertarian notions of freedom of expression, as they
Virginia a former law clerk to Supreme Court Justice
developed in England and America, were closely relat-
Hugo L. Black. he is the author of The Road from
ed to emerging tenets of freedom of conscience. Rooted
Runnymede: Magna Carta and Constitutionalism in
in the impulses of the Protestant reformation, libertar-
America and of a number of other articles and papers
ian ideas flowered more fully in the Enlightenment. the
dealing with constitutional rights and free expression.
Age of Reason. a time in which thinking about natural
He also serves as a consultant to the United States
law took the form of natural rights of the individual.
Senate Subcommittee on Constitutional Rights.
NATIONAL FORUM 41
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P1
State snall violate the equal rights of conscience, or the
Much of the Court's First Amendment jurisprudence,
freedom of the press." After debate. however, Con-
by contrast, turns on the regulation of the time, place,
gress agreed upon the language now found in the First
and manner of speech-how, where. to whom, or in
Amendment:
what way something is being said. Frequently, these
cases have arisen because an unpopular group has taken
Congress shall make no law respecting an establishment of
to the streets to express unpopular views. Thus, when a
religion. or prohibiting the free exercise thereof: or abridging
Jehovah's Witness played anti-Catholic records on the
the freedom of speech. or of the press: or the right of the
streets of New Haven, Connecticut, and was charged
people peaceably to assemble, and to petition the Government
with breach of the peace, the Court found no "clear and
for a redress of grievances.
present danger" to the public peace and order and
Such language-a few words couched in general
hence reversed his conviction (Cantwell v Connecticut,
terms-was hardly self-defining. It is clear that the First
1940). Nevertheless, in another Jehovah's Witness case
Amendment was aimed explicitly at the federal govern-
(Cox V. New Hampshire, 1941). the justices made it
ment. not at the states: it was only in the twentieth
clear that a locality. in regulating its streets, may
century. using the Fourteenth Amendment as a vehicle,
require permits for parades or otherwise regulate the
that the Supreme Court would hold the states to the
time. place. and manner of speech so long as it does so
prohibitions of the First Amendment. The breadth of
in a nondiscriminatory fashion.
the protection for expression conferred by the amend-
The "public forum" cases became more complex
ment was less than clear.
when civil rights activists in the early 1960s were
Zechariah Chafee, Jr. has argued that the framers of
arrested for marching or demonstrating in southern
the First Amendment intended not only to prevent
cities and towns. A majority of the justices found
censorship, but also to wipe out the common law of
various grounds for overturning those convictions,
sedition and make it impossible to punish criticism of
some of which involved protests in traditional places
the government where speech was not brigaded with
such as streets and public parks. others of which were
direct incitement of lawbreaking. Leonard Levy, how-
mounted in less obvious "forums" such as the reading
ever, doubts the framers intended to go so far. In his
room of a public library. The Court's patience reached
view, a broad, libertarian theory of freedom of speech
its limit, however, in a 1966 decision (Adderley V.
and press-a view of the kind articulated by Madison-
Florida) in which. five to four. the justices held that
did not begin to take hold in the United States until
there was no First Amendment protection for a demon-
Thomas Jefferson and his party fought against the
stration on the grounds of a local jail.
Sedition Act of 1798. an act which led to the prosecu-
In both the subversion cases and the "public forum"
tion and jailing of a number of newspaper editors for
decisions, there was no question that expression of
views hostile to policies of the ruling Federalist party.
some kind was going on: indeed. the expression con-
In the nearly 200 years since the First Amendment's
cerned such issues as war and civil rights-surely the
adoption, it is remarkable that virtually all of the judicial
kind of subjects of debate which should trigger First
gloss on the amendment has come in the past sixty or so
Amendment scrutiny. The typical question in these
years. The Supreme Court's first significant occasion to
cases is whether the expression sufficiently threatens a
decide just what protection the Constitution gives to
substantial state interest, such as public order or the
expression came in cases arising out of prosecutions
public's use of the streets.
under antisubversion statutes enacted around the time
of the First World War.
Holmes's thesis that speech could be curtailed only if it
A
nalytically more elusive, however, are those
The early cases produced Justice Oliver Wendell
cases in which the Court has been asked to
decide whether a particular kind of expression
created a "clear and present danger" of a substantive
even presumptively falls within the First Amendment.
evil within the power of Congress to prohibit. Holmes
Put another way. what is meant by "speech" or "the
argued in a 1919 case (Abrams v. United States) that
freedom of speech" in the First Amendment?
"the best test of truth is the power of the thought to get
Frequently the Court has taken a kind of "defining in-
itself accepted in the competition of the market
defining out" approach to speech cases. In Chaplinsky
By and large, the Court in the subversion cases was
v. New Hampshire (1942), Justice Frank Murphy com-
deferential to legislative power. Hence. in a series of
mented that punishment for certain classes of speech
cases the Court upheld convictions under the Espionage
has "never been thought to raise any Constitutional
Act for expression, some of which (such as publishing
problem." As examples, Murphy cited "the lewd and
leaflets denouncing production of war materials which
obscene, the profane, the libelous, and the insulting or
could be used against the Bolsheviks in Russia) struck
'fighting' words
Murphy reasoned that such
Holmes and Justice Louis Brandeis, dissenting, as not
utterances "are of such slight social value that any
presenting the requisite "clear and present danger." In
benefit that may be derived from them is clearly out-
the cold war years following World War II. the Court
weighed by the social interest in order and morality."
upheld (in Dennis V. United States, 1951) Smith Act
This "Murphy's law" has an appealing simplicity
convictions of persons charged with conspiring to advo-
about it. Inpractice, however, as forty years' litigation
cate and teach the overthrow of the United States
has revealed. the effort to create neat categories of
government.
protected and unprotected speech has proven madden-
The subversion cases involved the Court's interpreta-
ingly difficult, if not impossible. For example, in Cohen
tion of statutes directed at the content of expression.
V. California (1971). an opponent of the Vietnam War
42 PHI KAPPA PHI JOURNAL
8-23-84
the
Free Expression
was arrested for wearing, in a courthouse corridor, a
political campaigns also raise First Amendment issues.
jacket attacking the draft with a less-than-polite, four-
In Buckley V. Valeo (1976), the Court struck down
letter word. The state argued that it had the power to
several provisions of the Federal Election Campaign
punish for the use of "offensive" speech, but Justice
Act of 1971, as amended. An appellate court had upheld
John Marshall Harlan could not concede the state the
the act's provisions by viewing them as restricting
power to "cleanse public debate"; as he put it, "One
"conduct" rather than "speech." But the Supreme
man's vulgarity is another's lyric."
Court stressed the link between the amount of money
State efforts to ban traffic in pornography present
spent on a campaign and the ability to communicate
another judicial quagmire. In Roth V. California (1957),
political issues. In the Court's words: "This is because
Justice William Brennan stated that "implicit in the
virtually every means of communicating ideas in to-
history of the First Amendment is the rejection of
day's mass society requires the expenditure of money."
obscenity as utterly without redeeming social impor-
The Court's Buckley opinion gives new meaning to the
tance"-pornography is hence unprotected by the Con-
old notion that "money talks."
stitution. Yet in case after case, the justices have
Those who read the Supreme Court's First Amend-
struggled with first one approach, then another, trying
ment opinions may find themselves overwhelmed, iron-
to draw a manageable line between that which is
ically enough, by words-by tests, by standards, by
protected and that which is not. For a time, beginning in
slogans. An opinion by the latter Justice Harlan or
1967, the Court simply avoided the issue by deciding a
Justice Felix Frankfurter teaches that in First Amend-
number of obscenity cases per curiam, without full
ment cases there are no "absolutes," that claims of
opinions. Only in 1973 did a majority of five justices
protection for expression must be "balanced" against
finally agree on one approach to obscenity cases; Chief
governmental interests involved. An opinion by Justice
Justice Warren E. Burger stated that, among other
Hugo L. Black retorts that the framers of the First
things, to be declared obscene the material in question
Amendment did all the "balancing" that was required,
must lack "serious literary, artistic, political, or scien-
that the words "no law" in the amendment literally
tific value." But the last word in obscenity cases has by
mean "no law." Justice Holmes tutors us on "clear and
no means been written. Obscenity is to be judged by
present danger," but later opinions grope for ways to
"contemporary community standards," and the Court
apply that phrase-or even to decide whether it is
has held that the relevant standards need not be those of
helpful at all as a guide.
the Nation or even a state: they may reflect the tastes
It is simply not possible to reduce the First Amend-
and opinions of local communities. Hence the actual
ment's meaning to a single bromide. One reason is that
application of the Supreme Court's guidelines continues
the ambit of constitutionally protected expression has
to require case-by-case adjudication. with local prose-
spread far beyond the area that most concerned many of
cutors and local juries playing a major role.
those who voted to adopt the amendment. The amend-
Libel cases have presented similar problems of defini-
ment's protection for speech reaches above all to
tion. Whatever the First Amendment may have done to
expression related to the political process. to dissemina-
throttle the power of government to punish seditious
tion of ideas about self-government by a free people.
libel, it was long assumed that conventional libel ac-
But the cases of recent decades make clear that, what-
tions-one person's claiming that another had defamed
ever the framers' intentions. the First Amendment
the former's reputation-fell outside the ambit of con-
today reaches far beyond purely "political" speech.
stitutional adjudication. But in 1964, in New York Times
For example, until the 1970s it was widely assumed that
V. Sullivan, the Court held that, in the interest of
"commercial" speech (such as commercial advertising)
"robust and wide-open" debate on public issues, when
fell altogether outside the protection of the First
a "public official" brings a libel action against critics of
his official conduct, he must prove "actual malice"-
that is, that a statement was made with knowledge that
it was false or with reckless disregard of whether it was
in case after case, the justices have
false. The New York Times rule was subsequently
struggled with first one approach, then
extended to "public figures," and in a series of sequel
another
cases the Court has attempted definition of just who is a
"public figure.'
First Amendment decisions such as those arising out
of obscenity prosecutions or libel actions thus present
Amendment. That assumption proved in error when the
the question of whether a verbal communication, which
Court in 1976 (Virginia Board of Pharmacy v. Virginia
might be speech in a layman's eyes, is nonetheless not
Consumer Council) struck down a state law forbidding
considered "speech" in terms of the First Amendment.
the advertising of the prices of prescription drugs. The
In contrast, other cases present the question whether
state defended the statute as helping to maintain high
nonverbal activity-symbolic expression-may be pro-
professional standards among pharmacists. The Court,
tected "speech" under the First Amendment. For ex-
however, found a strong public interest in the free flow
ample, in 1969 (Tinker 1'. Des Moines School District).
of information regarding commercial decisions. The
the Court found First Amendment protection for high
state would have to shore up professional standards
school students' wearing of black armbands in school as
through some means other than a "paternalistic" one
a form of protest against the Vietnam War.
which operated to keep consumers ignorant of prices
Attempts to regulate how money may be spent in
among competing pharmacists.
continued on page 63
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Tom Johnson
Publisher Reflects on
Freedom of the Press
T
he Constitution is explicit about its guarantees of
the right of free expression: "Congress shall
make no law
abridging the freedom of
speech. or of the press
That is it: no more, no
less. The brevity of the principle was intentional. Our
Founders' opposition to a restricted press-the press of
broadsheets and pamphlets, of defiant handbills and
seditious journals-helped to make us free: the Framers
believed an unfettered press would help to keep us free.
The Constitution protects the press from capricious
law, but our independence has its price: the press must
be its own policeman. On the whole range of issues vital
to the integrity of journalism-accuracy. fairness, re-
sponsibility, accountability-we fundamentally make
the rules. and we decide how (and whether) they are
enforced.
As a publisher. I am acutely aware of the many
role as public watchdog and advocate is not likely to
disputes between the media and their critics. Some of
make it consistently popular.
this criticism is deserved: some is not. Criticism of the
The press has its weaknesses. and these must be
press is as old as the press itself. A free press that does
acknowledged. We seek excellence. but no institution
its job is bound to irritate segments of society. The peril
can rid itself of all imperfection. There indeed have
we face is that some of these critics attempt to translate
been violations of journalistic ethics. Because the trans-
their irritation into action that would limit our rights.
gressions of one reflect poorly on all. each violation
We see this threat in ever-increasing libel judgments
sounds an alarm throughout the profession. Instead of
around the country and in continuing efforts to restrict
offering excuses or retreating behind the well-worn
press access to judicial proceedings and to government
rhetoric of the people's right to know, we must always
information.
have the courage to recognize our errors and the
We have earned some of this response through occa-
wisdom to seek ways to correct them. Increasingly, I
sional lapses in editorial judgment. and our occasional
think. some newspapers are beginning to do that. News-
failure to meet reasonable standards of accuracy and
papers operate in an ethical climate wholly different
fairness has led many to suspect the press's own ethical
from-and more demanding than-the climate of just a
commitments. Not long ago The Los Angeles Times
generation ago, and I find that encouraging.
conducted a national poll on the public's perception of
Our critics seem to forget that it is from the press
the press. Nearly 40 percent of the respondents said
itself that they learn about our transgressions. When
they think that the mass communications industry mis-
Washington Post reporter Janet Cooke was found to
uses its great power by acting irresponsibly. Nearly 20
have fabricated a story about an eight-year-old heroin
percent said that abuses by the media should be dealt
addict. it was The Washington Post that carried the
with more sternly by government regulators. Only one
most detailed story on what had happened. When the
in four thought the media to be essentially ethical: one
Securities and Exchange Commission began investigat-
in three said we are fair in our handling of the news.
ing charges that a Wall Street Journal reporter who
Such perceptions suggest that a considerable segment
wrote a market column had leaked information to Wall
of the public sees the press as an artful dodger-darting
Street brokers before publication. it was The Wall.
out from the sanctuary of shield laws and the First
Street Journal that published a long, detailed story
Amendment. using our powers over public opinion to
about the case on its front page. Nor are such remedial
do mischief. and then darting back to shelter to escape
retaliation. Such a characterization is unfair and inaceu-
TOM JOHNSON is the publisher of The Los Angeles
rate, and it misrepresents the reasons for the Constitu-
Times. Mr. Johnson previously held positions as assist-
tion's protection. But it is not entirely unexpected: the
ant press secretary to President Lyndon B. Johnson,
argument that people resent the bearer of bad news has
executive vice president and director of the Texas
considerable merit, and the news is by no means always
Broadcasting Corporation. and publisher of the Dallas
good. The press is the institution we love to hate. and its
Times Herald.
44 PHI KAPPA PHI JOURNAL
8-23-84
^1
actions confined to the press. In response to criticism
dent ownership. The ten largest newspaper chains (in-
that network vote projections have unfairly influenced
cluding Times Mirror, which owns The Los Angeles
elections, ABC News recently decided to refrain from
Times) have one-third of the Nation's readership: 20
predicting the outcome of races until the polls have
million out of 60 million. The influence of the three
closed in each state being analyzed.
major television networks is even more pervasive,
We need no new laws, executive orders, or restrictive
which is particularly apparent during a presidential
court decisions to regulate the press. That would be
election year.
odious. unconstitutional. and inimical to the best inter-
We are entirely correct, and we fulfill our constitu-
ests of our demoeratic way of life. Nor do I think such
tional obligation. when we expose folly. untruthfulness,
mechanisms as ombudsmen or news councils can or
and conflicts of interest in government or when we
should replace the judgment of publishers, editors, and
challenge secrecy in the judicial system. The press can
reporters.
demonstrate how corporate decisions may spawn new
The fact remains that some members of our profes-
problems or have unforeseen (and sometimes destruc-
sion have been guilty of conflicts of interest or of
tive) consequences. That is the role the Constitution
presenting fact as fiction or of irresponsible or prejudi-
guaranteed to a free press.
cial reporting or of other kinds of improper or unethical
Unfortunately, good intentions and practices do not
behavior. There are fewer of these incidents today than
guarantee success. Even if we are consistently candid
in the past. but their repercussions are felt throughout
about our shortcomings, and as forthright as we expect
our profession. These are serious violations of the trust
others to be, a skeptical segment of the public is likely
vested in our free press by the public and by our
to continue to consider us just another powerful institu-
constitutional system.
tion, enjoying the unfair advantage that comes with our
The press can do little to allay the suspicions and
unique constitutional protection.
hostilities of those in government, business, or else-
But a responsible press will serve the public interest,
where in our society who have an ax to grind against it.
not private privilege; as long as our ethical principles
But we should-we must-try to ameliorate the legiti-
place primary emphasis on that end. we will annoy as
mate resentments that many others have toward us.
regularly as we will satisfy, and assaults on our rights
Those resentments will persist until we are consistently
and credibility will assuredly continue.
willing to apply to ourselves the same standards we
I believe that most of the people-the ultimate benefi-
demand of others. We cannot demand access to the
ciaries of a free press-continue to look to us as a
councils of government, to the courts, and to corporate
guarantor of their liberty. This support demonstrates a
board rooms, and then turn away critical writers who
fundamental public confidence in our ability and deter-
come to our own doors with potentially embarrassing
mination to do our job. and do it well, within our
questions. Nor can we demand answers of those we
constitutional framework. This is a source of satisfac-
interview and then say "no comment" or "we stand by
tion. It should not be an invitation to complacency.
our story" when we ourselves are challenged. In short,
If Congress shall make no law abridging the freedom
we cannot insist on accountability from other powerful
of the press. the public must expect us to maintain
institutions in our society while simultaneously reject-
standards worthy of that freedom. I believe that, by the
ing accountability for ourselves.
measures on which we judge any institution in our
Newspapers are among the strongest influences in the
society, the press has done so. Because we are exposed
communities they serve. and the growing number of
to public scrutiny every day. we have a particular
one-newspaper towns requires a stronger commitment
responsibility to meet those ethical standards we have
to public accountability than we have displayed in the
set for ourselves. Freedom is hard won and easily lost.
past.
Truth and fairness are the values to which a free society
The changing nature of the newspaper industry con-
must demand devotion. We know what those standards
tinually challenges our policies. In the more than 1500
ought to be. and it is the continuing responsibility of the
cities in the United States with daily newspapers, only
press to strengthen our collective resolve to adhere to
27 have two or more under truly competing. indepen-
them.
eCREE-continued from page 40
the concept of due process that the states must observe
a crime to aid in the use of a contraceptive drug or
in obedience to the Fourteenth Amendment. Among
device. This case was followed a decade later in Roe v.
them are the rights of freedom of speech and the press.
Wade. which invalidated a Texas criminal statute out-
of association and worship. and of freedom from an
lawing abortions.
established religion guaranteed by the First Amend-
Thus the Court. by interpreting the Constitution as a
ment. Also binding on the states are those rights con-
living charter requiring frequent interpretation to enable
tained in the Fourth. Fifth. Sixth. and Eighth Amend-
it to address new problems, uniquely permits an equilib-
ments which comprise a constitutional minimum code
rium to be maintained between liberty and constraint in
of criminal procedure.
the context of tradition and precedent. There is still the
In recent years. there has occurred what some oh-
unfinished national agenda of extirpating the residual
servers regard as the revival of substantive due proc-
impact of the heritage of slavery, but the Court has
ess-the discovery of a right to privacy found in the
announced the new rules, and their implementation lies
penumbra or shadows cast by the several amendments
in the other two branches. The formula has proven itself
of the Bill of Rights and in their emanations. Griswold I',
for two centuries, and it has made the American Revo-
Connecticut (1965) invalidated a state statute making it
lution secure.
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David Mathews
We
the People
e the People
do ordain and estab-
W
ought to be applied at all or whether it should be applied
lish
That is how our Constitu-
directly. Whatever our intentions, we are a democratic
tion begins. The opening phrase of
state. The difficulty is that we are more than that. We
our Constitution is no mere rhetorical flourish. The
are also a bureaucratic state, a welfare state, an infor-
quintessential issue for a democratic government is the
mation state, a scientific-technological state, a special-
relation of the people to the government-and of the
interest state. Each of those characterizations poses its
government to the public's rights and interests. It is a
own difficulties for the intelligent exercise of the pub-
relationship more fundamental than that between
lic's rights.
branches. more fundamental than any question of pro-
What does it mean for the public to participate in
cedure, more telling than any division of power among
setting policy when that policy is made not only in open
levels of government.
legislative halls but also in closed bureaucratic suites?
No reflections on the Constitution would be complete
What does it mean for the public to be informed when it
without revisiting the central doctrine of popular sover-
is engulfed by a flood of issues. pushed forward on a
eignty. examining its application to our modern, spe-
tidal wave of news? Does the public even exist when
cial-interest state, and asking what is now required to
atomized into single-issue groups? Is an ancient ideal
inform the public's discretion-that being the corollary
made obsolete by modern circumstance? And if that is
to the principle of popular sovereignty. Our constitu-
the case. what is the first principle now? Will a collec-
tional system requires the sovereign to be a reasonable
tion of practices and rules of procedure suffice to make
and reasoning public, not an undiscerning crowd. The
government legitimate? Will the sum of special interests
current state of the relation of the people to the govern-
substitute for the public interest? What is to be our
ment is a cause for both alarm and cheer.
theory of government and how are we to understand
The principle itself is straightforward and. as an ideal.
ourselves these days? These basic questions send us
presents few problems. The people are the ultimate
back to the basic issues of democratic government.
authority for government: they are sovereign. And
theirs is not merely power in the abstract: they partici-
I
t would seem impossible 10 have a theory of public
pate-they are the electors. the jurors. the final judges.
administration without a theory of the public: but
The problems are more in the application of the princi-
that is what we have. Democratic practice gives
ple.
way to administrative order every day-not maliciously
This principle's greatest test in recent history came
or systematically, but willy-nilly. We have thought little
when Americans saw the German people, while exercis-
about democratic remedies for bureaucratic ills.
ing their sovereign rights. vote away their rights to
The real problem with the bureaucratic state is that it
Adolf Hitler. The harsh lesson of that tragic era was that
obscures the very idea of the public. so much so that the
the majority could be terribly wrong. Our response was
words "public" and "government" are used inter-
to emphasize that the Constitution established a repre-
changeably. We have forgotten that the public and the
sentative republic, not a direct, Athenian democracy.
government are not the same. What is a "public"
We became cautious about equating the public interest
official? To most people, a public official is a mayor or a
with the majority's opinion. But with all our reserva-
governor or a legislator-that is. a "government" offi-
tions about popular sovereignty in practice. we have
cial, elected or appointed. This confusion is unfortunate
seen that practice increase. It began almost as soon as
as it robs us of a useful perspective.
the ink on the Constitution was dry. We eventually
The implication of the doctrine of popular sovereign-
moved to the direct election of senators. to the recall of
ty is that the legitimate authority for government rests
mayors. to ballots that now put every conceivable issue
somewhere other than in government itself. Put another
before the public. We do more than vote these days:
way. our government is not the authority for itself, it
thousands of us serve on commissions and committees,
cannot create itself. There is something prior to, more
and the force of public opinion shapes national policy as
basic than, government. In the beginning was the pub-
never before. "We the People
"
does not merely
lic, not the government.
echo a revolutionary sentiment; it reflects a common
practice. Of course, it is not a practice which engages as
DAVID MATHEWS is president of the Charles F.
effectively as it should all of the people all of the time.
Kettering Foundation of Dayton, Ohio. He formerly
But more universally, more directly, and, to our amaze-
served as Secretary of the Department of Health,
ment, more successfully than we ever thought possible,
Education and Welfare in the Ford administration and
we exercise the rights of a sovereign people.
was president of the University of Alabama. He has
The problems today in the practice of popular sover-
authored numerous articles on issues surrounding pub-
eignty go beyond the question of whether the principle
lic participation.
46 PHI KAPPA PHI JOURNAL
8-23-84
OR
We the People
One is not being anti-government to recognize that
The first and last stages of policymaking are casy to
the public came first. While the public and the govern-
identify. In the first, issues are raised and, with heavy
ment are not synonymous. there is a very important
media involvement, the message gets out that some-
relationship between them, somewhat like the relation-
thing is wrong. A problem becomes an issue: our
ship between the Pilgrims and Puritans. All Pilgrims
productivity, is declining, our Social Security system is
were Puritans. but not all Puritans were Pilgrims. All
not secure, our schools are failing us. In the last stage,
governments are public (or have their origins in pub-
public issues are taken up by the political system. Bills
lics). but not all publics are governments. The public is
are introduced and debated. Laws are passed-the Job
pre-governmental, even pre-political; it is the environ-
Training Partnership Act of 1982, the Social Security
ment out of which governments grow. Civic organiza-
Reform Act of 1983, the National Defense Education
tions and voluntary associations, the church's softball
Act of 1958. This is what the textbooks tell us, but we
league and the college students' voter registration drive,
know that this is not the whole story. Between the first
the town meeting and the fund drive for a day care
and last stages, the public listens, learns what it can,
center-all of these are expressions of our public life.
discusses amongst itself, changes its mind freely, tests
The public life is our shared life in all its forms.
what the experts say against both personal experience
We may forget what a letter of marque is (see Article
and community values, digests information, and finally
I. Section 8 of the Constitution), but we cannot afford to
makes a judgment. It is this second. public stage that
forget what the public is. What we participate in first,
sometimes assumes central importance; we saw it, for
where we exercise our sovereignty most directly, is in
example, in the public reversal of government policy in
shaping our public life. Participation in our nation's life,
Vietnam. But on some issues the public does not
therefore, does not mean merely responding to the
debate, does not listen. does not learn.
government. As a matter of fact, participation is best an
initiative, not a reaction. No matter how large the
bureaucracy and the government become, we cannot let
them obscure that central truth-for their sakes as
"Our heritage is a useful reminder, a
much as ours.
A second dilemma for modern democratic practice is
string tied on our collective finger, to help
that, even with as much information as we have. we are
us remember ways of thinking about poli-
not sure that the public discretion can be sufficiently
tics that enrich impoverished practices."
informed to deal with the plethora of issues. technicali-
ties. and interrelations that are part of any policy
decision in the modern world. The American people. de
Tocqueville recognized, genuinely love their country.
The models we use for informing the public rely
Yet. because the task of being sufficiently informed to
largely on providing more information. But more infor-
act in its best interest posed such difficulties. he feared
mation alone does not necessarily result in public
that the people would be prone to "hasty judgments."
understanding or a change in attitudes. Good informa-
This fear persists. The principal difficulty. however, is
tion is essential to good policymaking. but the character
not the inadequacy of the press or the unavailability of
of the information is also important. Pouring out expert,
news: it centers, rather, on the question of what it
technical information can even make matters worse
means to be "informed." Because experts. scientists in
because the language and points of reference for experts
particular, are so involved with policy questions, the
and policymakers may not be the same as those for the
assumption often is that what they know is what the
public. The public is no less "expert" but uses a
public needs to know if it is to make sensible judgments.
different frame of reference which tends to be expressed
That may not be so. given the changes in the way the
in terms of personal experience and values. For in-
public involves itself in policymaking these days. The
stance. to assess the significance of the federal deficit,
contrary assumption-that the public has to be spoon-
the public "translates" the issue from the mega-million
fed a pablum of information-is equally questionable.
language of Washington to the everyday language of
The public, in ways not always easy to understand,
home mortgage costs.
comes to form national attitudes that set the parameters
Information-just the facts-is also inadequate be-
within which successful policy can be made and sus-
cause it does not tell the public what it needs to know
tained. As former Secretary of State Dean Rusk said
most-its range of choices or options. In fact, the
recently.
political process can prematurely reduce the number of
At the end of the day. the American people are going to have
options to the number of major party positions-just
to decide. No president can pursue a policy for very long
two. The public response may be "none of the above"
without the support and the understanding of the Congress
or "all of the above.' Neither will do. The public has to
and the American people. That's been demonstrated over and
face up to unhappy truths and hard policy choices.
over again
People have to know the interrelation of issues and the
How the public learns about its business and moves
trade-offs involved in alternative approaches. In fact,
from its first opinions and myriad heterogeneous inter-
only when the public knows how the whole system
ests to form a common judgment-a broad and sustain-
works, how the parts must fit together, do people have
able national attitude-is as universally consequential
the basis for making sound choices.
as it is almost uniformly obscure.
Compartmentalizing information, as we do issues,
NATIONAL FORUM 47
8-23-84
yrs
exacerbates the problem. To govern ourselves demo-
exemplify a widespread conviction that the political
cratically. we must be able to see the larger context and
system is often too immobilized to address the tough
make sense of what would otherwise be meaningless
issues. Democracies must have broad-based coalitions
bits and pieces of information. The "facts" alone can
to balance the influence of factions and to give legitima-
lead to a feeling that the whole world is in a mess. In
cy and direction to government. These coalitions are
that frame of mind, people are more likely to react with
possible only when the shared interests, the permanent
the passion the Framers of the Constitution feared than
interests of the public, are identified.
with the reason they demanded. Frustrated. the people
The theory of public participation, which stems from
come to doubt the competence and good intentions of
the principle of popular sovereignty, speaks directly to
the country's leaders and its institutions. The effects of
such a reaction are not likely to be confined to the
leaders and institutions of government.
"It is knowing what interests are shared
Even though the way the public learns about its own
business and involves itself in policymaking is difficult
that educates a public.
to describe precisely, one thing is certain-informing
the public's discretion involves more than informing
this problem of factions and the need to identify the
individual discretion. The education of a public-
shared interests that lead to broad coalitions of the
whether of a community or an entire nation-is not the
public. The public is often thought to be unimportant,
same as the education of individuals, although the latter
present only to be manipulated. because the public is
helps considerably. The reason is that what a public
seen as having nothing substantive to contribute by its
must know goes beyond what we can give people by
participation. Nothing could be further from the truth.
instruction. People will understand the personal conse-
Public participation is essential in all forms of political
quences of a public policy decision with good informa-
life because it contributes what the public alone can
tion; they can be told what the available policy choices
contribute-a larger view of how different interests are
are. But there are certain things that people can only
affected, and thereby a unique sense of the common
learn from one another. To make policy that is truly
stake in the business of the day. It is unique because it is
public, that is in the larger public interest. people must
nowhere else available.
not only have the facts. but they must know what those
The crucial step in realizing the public's contribution
facts mean to other people. people different from them.
is to get past "hasty judgments.' Initial impressions,
Beyond an understanding of differences. an éducated
personal biases, and special interests have to be worked
public has to find out what is common to all of the
through in the caldron of serious, disciplined public
different perspectives on an issue. so it can find a basis
discussion and melded into second opinions more likely
for action. It is knowing what interests are shared that
to be shared by others than are personal preferences. It
educates a public.
is from these second opinions that people identify
We need better ways of fostering public learning,
commonalities. fashion choices consistent with them,
ones that translate policy jargon into everyday lan-
and lay the basis for successful, long-term coalitions—
guage. that make the range of choices apparent. that
the basis for stable public policy.
help people put bits of information into coherent frames
Effective participation can unblock logjammed politi-
of reference and that rely on the public debate rather
cal machinery because it results in coalitions and solu-
than passive education.
tions different from the expedient artifices of special-
interest bargaining. The reason is not that participation
T
he historic problem in democratic practice has
makes the public mellow: democracies naturally pro-
come from what James Madison termed
a
duce a certain disharmony. What is required is not
minority or majority, actuated by interest ad-
agreement but agreement to act-that is, a common
verse to the rights of others or to the permanent and
mind to follow a certain course of action while still
aggregate interests of the community." We still worry
admitting differences of opinion. Participation, in which
about this problem, as we witness political interest
the public works through issues and moves from first to
increasingly atomized into special- and even single-
second opinions, is effective because it can redefine and
issue camps. Factions are natural to a free, diverse
accommodate conflicting interests rather than adjudi-
people. It has been their untoward effects that have
cate or further divide them. Effective participation
worried us. Madison dismissed these minority factions
should produce a basis for action. public or governmen-
as merely troublesome. He was more concerned about
tal, even when the strongest differences of opinion
special interests that were majority interests-prompt-
exist. Not an unrealizable ideal, new problem-solving
ed by a "zeal for different opinions concerning religion.
strategies with a premium on negotiation and participa-
concerning government
(or) the unequal distribu-
tion are now doing just that for state and local govern-
tion of property." As special interests have deadlocked
ments.
our political machinery, we have learned that even
small factions can be more than merely troublesome.
T
here may be cause for alarm in looking at what
In its final stages, the process of policymaking fails
has happened to the practice of democratic
most often because of special-interest logjams. The
principles in a country that is dependent on
recent host of presidential commissions-on subjects as
bureaucracies, divided by new forms of factions, and
disparate as Social Security and the MX Missile-
struggling to find better ways of informing the public's
continued on page 63
48 PHI KAPPA PHI JOURNAL
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The Commercial Republic
Betty Southard Murphy
And the Dignity of Work
T
he Bicentennial of the Constitution gives us a
published in newspapers in New York City, one at a
wonderful opportunity to examine our roots and
time, from October 27. 1787 to August 16, 1788. Recog-
to see whether the greatest experiment in all the
nized as one of the most important political works ever
world-designed to "secure the Blessings of Liberty to
written, The Federalist's discussion of the principles of
ourselves and our Posterity' alive and well as we
freedom and government, like the Constitution itself, is
enter the twenty-first century.
just as relevant today as it was in 1787.
James Madison, the Father of the Constitution. was a
In The Federalist No. 10, Madison warned that the
patriot and a first-class economic thinker. He was the
zeal that people have for different opinions leads them
son of a prominent Virginia landowner. Alexander
to seek reasons to divide into political factions-and if
Hamilton, who insisted that our country start out on a
no reasons exist, they invent them. Madison wrote:
firm financial footing, was born in the British West
So strong is this propensity of mankind to fall into mutual
Indies, the illegitimate son of a drifting trader. Together
animosities that where no substantial occasion presents itself
these two men did more than any others to secure the
the most frivolous and fanciful distinctions have been suffi-
ratification of the Constitution. Intelligent energetic,
cient to kindle their unfriendly passions and excite their most
they shared a burning desire to establish a republic such
violent conflicts.
as the world had never seen, one that would benefit all
mankind.
This could be avoided, Madison reasoned, by directing
Like other intellectuals of their day, the two had
the people's energy into commerce.
studied the works of David Hume and his student and
Hamilton. who wrote two-thirds of The Federalist
friend. Adam Smith. Idealistic. yet practical. Hamilton
essays, agreed. "The prosperity of commerce." Hamil-
and Madison dreamed of creating a new form of govern-
ton said in The Federalist No. 12. "is now perceived
ment that would guarantee religious and political free-
and acknowledged by all enlightened statesmen to be
dom. But they knew they had to find a way to avoid
the most useful as well as the most productive source of
factional infighting which they feared would spawn
national wealth. and has accordingly become a primary
civic unrest and perhaps destroy the new government.
object of their political cares."
Madison was convinced, as Smith had been. that in
Both Madison and Hamilton knew that national pros-
order for society to attain its highest degree of freedom
perity would not just happen: it had to be fostered by a
and power. the people's interests in their own well-
constitution which encouraged it and protected it and
being-not just spiritual but material-had to be fos-
by legislators who, deep in their souls. believed in it.
tered and encouraged.
Speaking at the Constitutional Convention in 1787,
In other words, if all had an economic stake in the
Madison stated that the security of property was among
Republic or the opportunity to get one. all would fight to
the "primary objects of civil society. The right of
preserve the Republic. As Smith had said-and as
property did not stand alone: it was among the first and
Hamilton and Madison believed-by creating a govern-
perhaps the foremost of personal liberties. It meant
ment in which its citizens could in freedom and security
then-and still means-that people could work hard
pursue their own self-interests, they would provide the
and, except for taxes, retain the fruits of their labor for
framework where people would be "led by an invisible
themselves, their families, and their descendants. The
hand to promote an end" beneficial to all of society.
government-indeed, no one-could take their proper-
John Locke. whose views were also known to virtually
ty without paying for it.
every American involved in the forming of the new
Secure in their ownership of property, the people
country, had taught that ownership of property was a
would not have to kowtow to political authority, nor
natural right.
Aware that the most common ground for unrest in the
BETTY SOUTHARD MURPHY is a member of the
world had always been the unequal distribution of
national law firm of Baker and Hostetler in Washing-
property, Madison conceived of a new government
ton, DC. A former chairman of the National Labor
which through free enterprise would provide all with the
Relations Board, Mrs. Murphy is an active trial lawyer
opportunity to work, to achieve. and to amass capital.
and " First Amendment expert. She is also an adjunct
In order to sell the Constitution to the populace,
professor of law at The American University and lec-
Hamilton and Madison, assisted by John Jay, wrote
tures on various subjects both in the United States and
eighty-five essays known as The Federalist which were
abroad.
NATIONAL FORUM 49
8-23-8
subjugate themselves in fear of the government. In-
because it would result in citizens enjoying a higher
stead, they could speak their minds and vote their
degree of personal liberty. But they agreed that it was
choices without having their property confiscated.
the role of government to regulate those interests for the
Conversely, the citizens of the colonies now united
common good.
would support-and fight to defend-a government that
allowed them to acquire property and that could not
take their property without due process of law.
Hamilton had still another reason for advocating a
commercial republic: he believed that if private proper-
ty were sacred, a strong central government would
develop. People would pledge their loyalty to the Na-
tion and not to any particular state. Hamilton's entire
philosophy-cconomic, political, military, and diplo-
matic-was directed toward making the Nation strong.
Madison, in turn. also stressed that the success of the
Nation required that the economy be subject to regula-
tion by the political world-the legislative and execu-
tive branches-subject to judicial review.
In 1787 when Madison, Hamilton, and the other
Founders were developing a political philosophy which
would change the course of the entire world. the United
States had a population of less than four million people,
90 percent of whom worked and lived on small farms.
Nonfarm businesses were truly small businesses, with
shopkeepers often having one or two assistants at most.
Manufacturing was the work of craftsmen served by
perhaps an apprentice or two. In seaports, small ship-
M
canwhile. another type of revolution was
taking place-the Industrial Revolution. Al-
though the process of change from an agrari-
yards and ship chandlers operated. Even turnpikes and
an, handicraft-type of economy to one dominated by
canals were built by small contractors who at first were
industry and machine manufacture actually began in
local farmers and businessmen.
England around 1750. it was slow crossing the ocean.
These people had come to America-or stayed in
While Hamilton in The Federalist wanted to turn the
America-because here they could have something
United States into a great industrial nation, in 1808
unattainable for them elsewhere in the world: the free-
there were only eighteen cotton mills in the whole
dom to work and, by the dignity of their own labor. the
country. The Embargo Act and the War of 1812 stimu-
opportunity to achieve their desires, whatever these
lated American manufacturing by cutting off or serious-
might be.
ly reducing imports. For example, mills in Lowell,
As Hamilton said in The Federalist No. 12. the
Massachusetts, began competing successfully with Brit-
Constitution envisioned the creation of "one great
ish textiles.
American system' -a large commercial republic. The
The invention of the sewing machine, new power
Framers of the Constitution were wise enough to let the
looms. improvements in transport. and the opening of
role of government in regulating commercial enterprise
new frontiers began to transform the lives of the people.
evolve with social and economic change. It was not by
As the country grew. so did commerce and industry.
accident that Article I. Section 8 of the Constitution
And it became readily apparent even then that the
gave Congress the authority to "regulate commerce
Constitution was indeed capable of being interpreted
with foreign nations. and among the several
and reinterpreted in the face of these social and eco-
States
nomic changes.
When in 1824 the question arose as to what the clause
Soon the United States was a land of bigger factories,
meant. Chief Justice John Marshall, in Gibbons I'.
faster transportation. new machinery, more immi-
Ogden. defined commerce to include "every species of
grants. land-hungry pioneers, vast power. and increas-
commercial intercourse" and laid down the plenary
ing markets. The economy moved from small craftsmen
power of Congress over interstate commerce. In other
or guilds and home industry to capital investment and
words. if a state law in this area collides with a law
free enterprise on a scale hardly dreamed of by Madison
validly enacted by Congress, the state law must yield to
and Hamilton.
the law of Congress. Only federal regulation of inter-
Corporations also began to flourish with the coming
state and foreign commerce could guarantee uniformity.
of the Industrial Revolution. They proved to be ideal for
The doctrine stimulated an already-growing national
economic development since they could raise large
economy.
amounts of capital from numerous investors and yet
Madison and Hamilton both recognized that there
retain centralized control over their business affairs.
were many special interest groups in America: rich and
It was a period of intense social and economic
poor, commercial and noncommercial, large states and
change. Middlemen developed and flourished. Entre-
small states, manufacturing and farming. They felt the
preneurs and would-be entrepreneurs wanted as much
more special business interests there were, the better
freedom as possible to increase their profits. Employ-
50 PHI KAPPA PHI JOURNAL
8-23-84
The Commercial Republic
ees, farmers, and other groups had opposing interests.
The first stirrings of the American labor movement as
They wanted to control the damaging aspects of change.
we know it occurred in the late 1820s. at a time of vast
After the Civil War, various segments of society
economic and social change. By 1836. Philadelphia had
began to push for regulation: farmers and shippers
58 trade unions; New York. 52; Newark. 16; Pittsburgh,
wanted protection against unfair railroad rates; work-
13; Cincinnati, 14; and Louisville, 7.
ers. against unfair employers; and purchasers, against
It was not until 1842 that Chief Justice Lemuel Shaw
fraudulent claims. Monopolies, combines, and trusts
of the Massachusetts Supreme Judicial Court declared
made competition difficult. The Robber Barons, many
in Commonwealth V. Hunt that the trade union was not
people felt. were trying to take it all. During the 1880s a
in itself an unlawful conspiracy. Subsequent cases
host of special interest groups banded together and
began to hold that "combinations" of workers seeking
demanded that Congress institute controls.
to gain higher wages. shorter hours. or better and safer
Madison had written in 1792 that it "is not a just
working conditions were not by themselves unlawful.
government. nor is property secure under it where
From today's vantage point, the determination and
monopolies deny to part of its citizens that free use of
dedication of those early trade unionists reflected their
their faculties and free choice of their occupations
desire to give their members the opportunity to become
which not only constitute their property in the general
part of the emerging middle class.
sense of the word: but are [their] means of acquiring
Women and children as well as men were employed
property
in the cotton and woolen mills of New England. Actual-
Although discriminating in favor of small business
ly, mill owners said they preferred women and children
because it was small was not the answer, Congress saw
because their hands were smaller and they could weave
its obligation to try to provide equality of opportunity to
faster. They were also paid less than men. But the early
compete. Thus the Sherman Antitrust Act of 1890
attempts of workers to strike over low wages and harsh
declared illegal "every contract. combination in the
working conditions were largely unsuccessful.
form of trust or otherwise, or conspiracy. in restraint of
On November 15. 1881. the Federation of Organized
trade or commerce among the several States. or with
Trades and Labor Unions-the predecessor of the
foreign nations
American Federation of Labor and Congress of Indus-
Passage of this statute was really in keeping with the
trial Organizations (AFL-CIO)-was established in
original philosophy of Madison and Hamilton-to give
Pittsburgh. Item I of the federation's platform called
every person the opportunity to develop an economic
upon state legislatures and Congress to give workers
stake in the country. While the Sherman Act provided
"the right to the protection of their property in like
an adequate remedy for the economic order of the late
manner as the property of all other persons and societ-
nineteenth century. world competition has now re-
ies." While including demands for social legislation, the
placed domestic competition. and the time may have
new federation also sought adoption of laws to give
come to revise our antitrust laws to reflect the economic
"every American industry full protection from the
and technological realities of the twenty-first century.
cheap labor of foreign countries." The federation
pledged "to use all honorable measures" to achieve its
I
t is clear that competition has always been funda-
goals.
mental to the American system because it encour-
In 1893. Samuel Gompers. president of the American
ages economic and material progress and also be-
Federation of Labor. succinctly stated:
cause it advances beneficial political objectives.
What does labor want? We want more schoolhouses and less
Congress, therefore. has tried to protect competition
jails; more books and less arsenals: more learning and less
and prevent monopolies.
vice: more constant work and less crime: more leisure and less
Initially reluctant to uphold federal and state econom-
greed: more justice and less revenge.
ic regulations under the commerce clause and due
Despite the hostility of the courts to the labor move-
process clause of the Constitution, the Supreme Court
ment, the 1914 Clayton Amendment to the Antitrust Act
little by little began to assume a more realistic role in
limited the use of the labor injunction which had cur-
evaluating economic regulations.
tailed strikes. The impact of the stock market crash of
But freedom of economic opportunity meant one
1929 and the helplessness of wage earners and employ-
thing to the entrepreneurs and another to their employ-
ers alike during the Great Depression had profound.
ees. Although the seeds for the rights of workers to
even revolutionary. effects on both labor and manage-
have a say about their economic stake in the country
ment. The social legislation of the New Deal era was put
had been planted in the Constitution, these rights were
into place. And in 1937 the Supreme Court upheld the
not realized in the early years of the Republic.
National Labor Relations Act (NLRA) which guaran-
When organizations were formed to protect workers
teed the rights of workers to organize and to bargain
as well as to advance their economic interests, the
collectively with their employers. Thus the NLRA
courts were simply not sympathetic. In 1806 in Com-
provided the recognition that, indeed, workers have a
monwealth 1'. Pullis-better known as the Philadelphia
voice in the disposition of their economic stake through
Cordwainers case-the Court declared that "a combi-
collective bargaining. The Taft-Hartley Act of 1947 was
nation of workmen to raise their wages may be consid-
intended to balance rights of employees, employers,
ered from a twofold point of view: one is to benefit
and unions in the workplace, thereby promoting indus-
themselves, the other to injure those who do not join
trial peace.
their society. The rule of law condenns both."
In 1959. George Meany, president of the AFL-CIO,
NATIONAL FORUM 51
8-23-8
DRAVELLI
OF
PHILADELPHIA
BE
THE
ORDENAN
500
500
CANDER
CRICIFICATE
OF
stated that unions seek economic and political power in
The spirit of competition has found new frontiers!
order
But the problems of maintaining our liberty in the
to make life better for the worker, to obtain for him a larger
twenty-first century are going to be just as difficult as
share of the wealth he helped to produce. to give him greater
they were when Hamilton and Madison dreamed their
purchasing power so that American industry and American
dream.
agriculture could find a ready market for their rapidly growing
productive capacity.
And Labor's expanded interest in foreign affairs has
the same purpose. The goal there. he said. is "to obtain
S
o far the Constitution and the commercial repub-
lic have met all challenges involving the safety
justice and fair play for oppressed peoples everywhere"
and prosperity of the country. The Founders
and to help foreign workers raise their wages so they
believed in freedom of political and religious thought,
could also share in their country's economic progess.
freedom of economic opportunity, patriotism. due proc-
George Meany was a realist. He said many times over
ess, family and more. These values of the past-which
that free trade unions can only exist in a free society.
made our country great-must be preserved in the years
Indeed, each is indispensable to the other.
ahead.
The tension between labor and management still
But as we enter this wondrous new age of economic
exists. and probably always will. in matters of union
opportunities, a dangerous anchor is dragging us down-
organizing and contract negotiation. But once that
ward. Recent studies show an estimated 23 million adult
contract is negotiated. labor and management are learn-
Americans-one in five adults-are functionally illiter-
ing more and more that it is in the best interest of each
ate. They cannot read. cipher out instructions, or even
to cooperate fully with the other. After all. the whole
vote knowledgeably. We must reverse this trend if they
idea is to make a product or perform a service that
are to get their feet on the economic ladder. In addition,
someone wants to buy and can afford to buy.
even many college graduates today have really at best
The labor force in America is changing. By 1984. over
only a feeble understanding of the Constitution's vital
70 percent of the work force was employed in service-
role in the Republic.
producing jobs, not in manufacturing or agriculture as in
Our Founders knew full well the importance of edu-
years gone by. In addition, foreign products and the
cation and training in a free society. In 1822. Madison
protectionist tactics of certain foreign countries have
said that "a people who mean to be their own Gover-
cost us jobs.
nors. must arm themselves with the power which
Some of the old industries in America can no longer
knowledge gives."
compete. and their employees find themselves without
What higher tribute could we pay to the Founders of
jobs and without the training to get new ones. Opportu-
this great country than to make this a decade devoted to
nities must be developed by business and labor so that
constitutional literacy! It would honor our past and
Americans who want to work and are able to work can
guarantee our future. For our society cannot remain
work. One of the great philosophical differences be-
free unless its citizens understand the document which
tween the United States and other countries is the belief
guarantees our freedom.
here in the dignity of work-all work.
Hamilton and Madison dreamed of far more for this
In The Federalist No. 33. Hamilton wisely stated that
nation than just economic success. They wanted a
our country had to develop a "capacity to provide for
populace nurtured on the principles of freedom and
future contingencies as they may happen." And indeed
sound government. The Constitution they championed
we must.
has endured.
The Industrial Revolution helped create our vast
And so, as we move more and more into high
middle class-carrying out the concept of the Founders
technology in the changing workplace, we must ensure
by giving every person a stake in the economy. Now the
that all citizens of this great land still have the opportu-
technical or Information Revolution is underway. Tele-
nity to get their economic stake, that the climate
communications and telematics are increasing in impor-
enables business to grow and to create new jobs, and
tance every day. There is a continued movement to-
that opportunities abound.
ward automated and decentralized manufacturing
The commercial republic is still-just as it was 200
plants. robotics, molecular computers. electro-optical
years ago-the best system by which men and women,
devices. space exploration. orbital commerce. and arti-
of whatever skills and abilities. can live in peace, better
ficial intelligence. Agriculture is already being changed
prosper. and work to find their own American Dream.
by aeroponics and hydroponics.
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Don K. Price
cience, Technology, and
the Constitution
T
hrough the formal institutions and legal proce-
was important, even more significant for the future was
dures that it set up, the Constitution of the
the support of the new political system by science. The
United States provided an indispensable basis
American Revolution was the first enduring challenge
for the limitation of arbitrary power and the guarantee
to the authority of hereditary royalty, as supported by
of basic freedoms. But the laws alone were not enough.
an established church. The source of authority for the
Other countries that rebelled against hereditary power
new Constitution, as its Preamble stated, was "We the
during the next century, especially those in Western
People of the United States
But how was that
Europe and Latin America, had a mixed experience.
new authority to be organized and distributed? The
Their move toward the popular election of their execu-
answer. of course, was to distribute the numbers of
tives generally substituted a more tightly organized
representatives in Congress and the presidential elec-
bureaucratic establishment for the old feudal or ecclesi-
tors, on the basis of a regular decennial census, the first
astic authority.
in the world. The very basis of sovereignty changed
The United States, by contrast. was the only major
when hereditary authority was replaced by the quantita-
country that did not move toward greater centralization
tive approach of what came to be called social science.
of administrative power. This difference can be ex-
As time went on. the requirement for a simple enumera-
plained by recalling what the people and their leaders
tion of voters was expanded into the collection of great
believed. The American colonies had been dominated
masses of data for the social sciences of the country-
intellectually by religious dissenters who were eager to
data needed for agriculture, industry. state and local
escape the authority of the Anglican church. During the
government, and a vast range of welfare programs.
eighteenth-century Enlightenment. this opposition to
Two issues then arose. First, if the people were to be
established authority in church or state was inherited by
the source of power. how would they learn how to make
scientific leaders, and their attitudes were pervasive in
the policy decisions that were required in the work of
shaping the political system of the new Constitution.
government? Second, if science was to provide the new
Two successive presidents of the United States were
knowledge on which policies were determined, how
active presidents of the two principal scientific societies
could the independence and objectivity of science itself
of the country-John Adams of the American Academy
be protected from political interference or corruption?
of Arts and Sciences and Thomas Jefferson of the
The first question called most obviously for a system
American Philosophical Society. The Declaration of
of public education, maintained independently of any
Independence had appealed against the authority of the
ecclesiastical control. The response to this need was the
King in Parliament to the "Laws of Nature and of
gradual expansion by the states and municipalities of
Nature's God"-giving clearer priority to the Laws of
their school systems, encouraged in one area by the
Nature than would have been conceivable in either the
Land Ordinance of 1785. with its provision of a share of
seventeenth or the nineteenth century.
public lands in the new Northwest Territory for the
In the Constitution itself, the provisions for a role in
support of public education. At the higher educational
society for science and technology were of great signifi-
level, Thomas Jefferson set up the University of Virgin-
cance for the future. The provisions most obviously
ia, with heavy emphasis on the development of agricul-
related to the status of science were those guaranteeing
ture and other useful arts. President George Washing-
its independence and support. The First Amendment
ton and others proposed a new national university, but
enshrined the principles of freedom of speech and of the
press, both essential for the free exchange of scientific
ideas and discoveries. The question of the financial
DON K. PRICE is the Weatherhead Professor of Public
support of science was almost equally important, since
Management emeritus at Harvard University. Profes-
the new Constitution, by forbidding monarchy and titles
*SOF Price, " former Vice President of the Ford Founda-
of nobility, cut off the royal or aristocratic patronage to
tion, served as the dean of Harvard's John F. Kennedy
which science had traditionally appealed. The solution,
School of Government for nineteen years. An expert on
of course. was the authorization of a system of patents
government-science relations, he is the author of The
and copyrights, to guarantee to inventors and authors
Scientific Estate and the recent book America's Un-
the right to the profits from their creations.
written Constitution: Science, Religion, and Political
While the support of science by the political system
Responsibility.
NATIONAL FORUM 53
8-23-84
they were defeated by the jealousies of the older private
dence of the scientific academy was when confronting
colleges. These were early examples of the new interest
Marxist doctrine. If that doctrine never seemed persua-
in secular higher education, which increased dramati-
sive in the United States even to most radicals, some
cally when the land-grant college system was founded
credit must be given to the way of thinking that was
during the Civil War era.
embodied in the status of science under the Constitu-
The people, however, could obviously not be expect-
tion.
ed to make most governmental decisions themselves,
The relationship of science to government was care-
no matter how well educated they might become. Most
fully examined in the early years of the Republic. The
specific questions would have to be answered by their
measure of unity that President Washington was able to
public officials or their elected representatives. The
maintain was soon split by regional and class differ-
American answer to this question was to refuse to
ences, and the partisan spirit that the authors of "The
permit the development of a strong civil service and to
Federalist Papers" feared came to dominate political
insist on giving control to legislative committees over
controversy. The most obvious split was between Jef-
the types of decisions that in most of Europe were
ferson (with his agrarian and democratic ideals) who
dominated. even after successive revolutions, by estab-
hoped that the sciences would provide the basis for a
lished bureaucracies.
more prosperous agriculture within a system of states'
The American answer was obviously dictated in part
rights, and Alexander Hamilton, whose "Report on
by the social conditions of the frontier, but it was also
Manufactures" emphasized the development of indus-
based on an intellectual principle. The settlers in most
trial technology under the leadership of a stronger
of the colonies had been rebels against the Church of
national government.
England: the New England colonies, intellectually the
In a country that was for the first half of the nine-
most influential, were dominated by dissenters whose
teenth century heavily rural. the Jeffersonian ideal
split with the home country had been led by the Puritans
dominated the development of science, and the rudi-
and Independents who were strongly opposed to the
mentary research and educational efforts of the period
Episcopal Establishment. After the collapse of Crom-
were carried out mainly by voluntary societies and local
well's Puritan Commonwealth and the restoration of the
institutions. During the Civil War. however, the Con-
Stuart Monarchy in 1660, the dissenters in religion
gress enacted the Morrill Act, which endowed in each
dominated the American political movements that led
state a college for the cultivation of the agricultural and
toward the Revolution. In the eighteenth century, the
mechanic arts and set up the federal Department of
intellectual leaders of the dissenting religions were more
Agriculture to give them scientific leadership. Later in
identified with the newly developing science than they
the century. cash subsidies supported the creation of
were in later years: more American colonists were
the experiment stations at the state colleges and the
members of the Royal Society, the dominant scientific
extension services to help educate farmers in the appli-
organization of the United Kingdom. in the eighteenth
cation of the new agricultural techniques.
than in the nineteenth century. and many of them (like
All this amounted to an extensive program of govern-
Cotton Mather, better remembered for his share in the
ment support. The agricultural sector of society was
persecution of the Massachusetts witches) were leading
willing to accept such support, in spite of its generally
churchmen.
conservative principles, as long as the support came
As for the second question-the issue of protecting
through an administrative system that remained sub-
science from political corruption-Western Europe in
stantially decentralized.
the era of the Enlightenment, as well as America after
The extension of Hamilton's approach made the
the Revolution. generally respected the institutional
national policy for science in industry very different.
independence of the sciences. As revolutionary move-
The new industries that developed, with the aid of the
ments moved eastward in Europe, however, science
patent system. after the Civil War were not eager to
and ideology were linked differently. While the revolu-
have the federal government meddle in their business,
tionaries in these countries nominally based their doc-
and the attitudes of the private universities and scien-
trines on a scientific theory, it was ironically one that in
tific organizations with the highest prestige-notably
practice destroyed that independence. Marxist doc-
the National Academy of Sciences-were generally in
trine, according to Lenin, held that dialectical material-
harmony with their views. While those leaders were of
ism could overcome the crisis in physics. That doctrine
course glad to accept the help of the federal government
taught that political problems should be solved on a
for many programs that were necessary for scientific
scientific basis, and the party that professes the proper
research-those, for example, of the National Bureau
scientific doctrine should not have to contend with
of Standards, the Coast and Geodetic Survey, and the
other competitors for power. This theory, while pro-
Census Bureau-they were not eager to be directly
fessing to give power to science, requires scientific
involved in programs requiring government direct
institutions to conform to Communist theory and sur-
grants to private institutions. When President Franklin
render their freedom of inquiry on issues that touch on
D. Roosevelt, in 1934, asked a Science Advisory Board
social or economic power. The famous case of Lysen-
to develop a program in which scientific institutions
ko, who ruined agricultural science for years in the
could help combat the Depression, the leaders of the
USSR by influencing Stalin who liquidated those scien-
National Academy of Sciences vigorously opposed its
tists who did not subordinate their biological theory to
proposals.
the Marxist dialectic, shows how weak the indepen-
The Nation thus had, a half century ago, two compet-
54 PHI KAPPA PHI JOURNAL
8-23-84
Science and Technology
ing patterns for the relation of government to science.
tution imposed on appropriations for the army, and the
In the world of agriculture, the system of federal grants
competition for their control among the military serv-
to the state "A & M" colleges was based on fixed
ices imposes great strains on the civilian supremacy that
formulas, leaving freedom of discretion largely to the
the president's role as commander in chief was expect-
local institutions. In the world of industry, the great
ed to reinforce.
corporations supported applied research on a competi-
The new system of electronic communications makes
tive basis. and the philanthropic foundations created by
our relationship with a potential enemy, in this era of
their profits did the same for basic research in the elite
guided missiles, one in which action may have to be
private universities.
taken within minutes, leaving the exclusive power of
All this changed dramatically under the pressure of
the Congress to declare war an empty formality. It now
the Second World War. Leading scientists had long
extends. with the help of the new acronautics, into
recognized that neither the agricultural nor industrial
outer space, requiring our political leaders to think in
support of science had given adequate support to funda-
broader terms than their local constituencies. And the
mental and theoretical science, for which we were
popularity of television. which depends for its influence
heavily dependent on European research institutions.
and profits on federally licensed channels, imposes on
But. under the threat of Nazi aggression backed by
the government a regulatory responsibility that makes
German science, American scientific leaders saw that
complete freedom of the press an impossible ideal.
radical advances in military weapons required national-
The new advances in biomedical science lead to
ly organized work on basic science, supported by
equally fundamental challenges to old ways of constitu-
massive federal funds. Nuclear fission and atomic
tional thinking. The new genetic sciences, leading to
weapons were only the most conspicuous examples of
proposals to patent new forms of life, not only raise
this cooperation.
disturbing legal issues, but also upset the Enlightenment
The shift during the war to a national policy of direct
ideal of maintaining a separation between politics and
federal support of most of the basic research in the
religion that was dominant when the Constitution was
country could not be reversed during the next four
drafted. Who could have guessed a generation ago that
decades. The new programs of direct grants to scientists
among the hot political issues of the 1970s and 1980s
and their institutions were quite different from anything
would be abortion. euthanasia, and birth control? On
that prevailed in either the Jeffersonian or Hamiltonian
the more positive side of the medical sciences, the great
tradition over the past century and a half. And they
advances in health that have come from new discover-
raised again in new and frightening form the two issues
ies raise issues of personal freedom. (In which cases
that had been involved from the early years of the
should vaccination or inoculation be compulsory? How
Constitution: first. If the people were to be the new
great does the public risk have to be to justify interfer-
source of power. how could science help them under-
ence with individual liberty?) Also, we want to know to
stand how to make the policy decisions that would be
what extent we should attempt to regulate and subsidize
made under their authority? and second. If science
hospitals and medical care (including those leading
could provide such knowledge, how could its indepen-
institutions formerly operated entirely by the private
dence and objectivity be protected from political inter-
sector independent of government regulation).
ference?
Such changes challenge not only the ways in which
THE TIGER ENGINE
our constitutional system works in specialized fields of
interest. but also our assumptions regarding the relation
of the government to the public. How much secrecy or
confidentiality should be permitted in the internal work-
ings of either the executive or the Congress? In an era of
limited government. this question was of little concern;
today it dominates much of the thinking of the Congress
and of the press, rivals in the job of guarding our
liberties against the executive.
A
S such problems make it harder today to apply
the basic principles of the Constitution in a
simplistic and literal way, the sciences may be
useful in reinterpreting and applying them, if we can
E
ven the most summary glance at some of the
answer in modern terms the two perennial questions
recent developments in science and technology
about their relation to the constitutional system.
and their impact on government and politics will
First. how may the sciences help the people and their
suggest how deep a challenge the sciences are now
representatives in both the Congress and the executive
making to the basic assumptions of our Constitution.
understand the complex new problems that society now
To provide for the common defense requires competi-
faces? Since the sciences and their related technologies
tion with our rivals in the development of weapons
are the source of the most striking changes in our
systems and the cultivation of "entangling alliances"
society. their help is essential for political leaders who
that the Founding Fathers feared. New weapons cannot
try to adjust to such changes. Most of the major political
be developed within the two-year limit that the Consti-
issues of the day have some aspects that are affected by
NATIONAL FORUM 55
8-23-84
technological change and that require scientific sophis-
cap, but it does make it easier to defend the varied
tication to deal with them.
interests of different regions and classes; in this respect,
On the other hand, no major political issue can be
scientific institutions help prevent the dominance of any
dealt with by any single science. Scientific progress has
single ruling interest in society. as the several states
been accomplished by the continuous specialization of
were expected to do under the original Constitution.
the disciplines. Each professional field that builds on
science, as do engineering and medicine, must combine
its command of physics or chemistry or biology, for
example, with an understanding of the social problems
"The new advances in biomedical science
with which it undertakes to deal.
lead to equally fundamental challenges to
Leading scientists are, of course, fully aware of this
limitation-more so than many enthusiasts in the politi-
old ways of constitutional thinking."
cal world who seek to enlist their support for their
favorite causes. The calculus of economic or technolog-
ical costs and benefits is not designed to handle such
Indeed, as the sciences and technology have helped
issues as fundamental civil rights or equitable distribu-
produce a more tightly unified society, they have come
tion of costs and benefits among various regions and
under pressure from national interests in much the same
groups of the Nation. Neither can its designers calculate
way as did the states after the Civil War. Unlike the
the value of freedom from political authority, or how to
churches, from which they inherited much of the intel-
make sure that such authority is shared acceptably
lectual leadership of the Nation, there was one severe
among the various classes and interest groups within
limitation on their ability to maintain their indepen-
the Nation.
dence from the federal government. It is not necessary
One may speculate whether the Constitution (by
to have money in order to worship. but it is necessary to
dividing power in such a way that it is hard to unify the
have a lot of it to conduct modern scientific research.
policies of the Congress or to distinguish its role clearly
So scientific institutions are faced with the problem that
from that of the executive) does not set up unnecessary
confronted the states in the twentieth century when
obstacles to the development of more coherent and
large-scale programs of grants-in-aid were inaugurated.
responsible policies, with a more effective use of sci-
These programs broke down the old attitudes of the
ence. The executive might be more accountable to the
states' righters. but they did not prevent the states from
people. largely through the Congress, if the political
working out bargains with the federal government by
parties were more unified and disciplined and if the
which they could get the money but still retain substan-
departments were staffed by a more highly qualified
tial measures of administrative discretion and indepen-
corps of generalists able to make use of science but to
dence in spending it. The key to the bargain was that the
transcend its limitations. But it would be a mistake to
grants were to be distributed not through a single
blame such shortcomings too much on the formal
federal treasury to a central authority in each state, but
Constitution: they would be greatly mitigated if our
through a less-disciplined variety of channels, with each
contemporary society, and especially our political lead-
specialized department in Washington (dominated by
ers. had the breadth of view and the dedication to public
specialized congressional committees) negotiating with
service of the Founding Fathers.
its counterpart in each state capital. The "indepen-
Our second question is equally important. While
dence" of the sciences has been preserved by open
science may not have all the answers to all of our
competition among universities for funding.
problems, its critical spirit and disinterested approach
Science needs more than the administrative tactics of
are essential to protection against arbitrary political
free competition, however, if it is to maintain its essen-
power. How can we make sure that its independence
tial freedom from political control within our constitu-
and objectivity are protected from political interfer-
tional system. It needs a consensus of the intellectual
ence?
leadership of the nation as a whole that it is a source of
The greatest safeguard is the way people think about
truth that must not be degraded by subjection to politi-
the problem. Much as the eighteenth-century leaders
cal manipulation.
were so deeply committed to the diversity of the
That consensus may even have been strengthened as
dissenting churches that they could take freedom of
the most advanced basic science has lost some of its
religion for granted in the Constitution proper (before
earlier confidence in its ability to discover and prove the
the Bill of Rights was added). America's faith in free
most ultimate truth and become more willing to ac-
science today is strong enough so that we need not
knowledge that its scope and methods and those of
worry very much about the possibility of making it the
religion are different modes of thought not necessarily
basis for an authoritarian ideology. as in Marxism.
in conflict with each other. We are by no means back to
Indeed, the advice of scientists who are working with
the casy confidence of the Enlightenment that the
independent scientific institutions and who are willing
"Laws of Nature and of Nature's God" are in harmony,
to testify on several sides of almost any substantive
but the several branches of organized knowledge seem
issue is one of the factors that let congressional commit-
to be working in enough of an alliance to maintain the
tees refuse to subordinate their specialized interests to
separation of their kind of power from that of politics-
any unified party leadership. From the point of view of
one of the most significant types of checks and balances
consistent party responsibility, this practice is a handi-
that is left under our contemporary Constitution.
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Rita E. Hauser
he Constitution and
National Security
Putting Parchment Into Practice
A
mong the dominant motivations for revising the
everything related to foreign affairs is deemed to be
Articles of Confederation at the Constitutional
within the power of the federal government to regulate.
Convention in Philadelphia in May, 1787 was
the need to assure the national security of a young and
threatened nation. George Washington. in particular,
had lived through eight years as commander in chief of
N
ot only is the Constitution relatively silent as to
the specific conduct of foreign affairs, it is
ambiguous as to the division of foreign affairs
the Continental Army. He was faced with the task of
power between the executive and the Congress. This
leading thirteen allied armies, often unresponsive to the
has given rise to continuing political battles on the most
imminent danger of foreign invasion and unwilling to
basic of foreign policy questions. For example. right up
respond to central direction.
to current times. the issue remains whether Congress
After intensive debate and deliberation, a nation, one
can compel the neutrality of the Nation in another
single nation, was established by the Constitution. The
country's conflict. based on its powers to declare war,
conduct of business with other nations was deemed,
to appropriate for national defense. and to raise an
without question. to be a matter of national concern.
army. Some still argue this prerogative belongs to the
Thus, the power to conduct foreign affairs was generally
president. by virtue of his executive power and his
denied to each state and given to the new federal
status as commander in chief of the armed forces. Can
government. with some explicit allocation of power
the president. acting alone and in the absence of a
between the executive and the Congress. Yet. in gener-
congressional declaration. send troops to a war zone?
al. the Constitution is strangely silent in delineating the
The War Powers Resolution. adopted over the presi-
foreign affairs power of the United States. Congress can
dent's veto in 1973 in the aftermath of the Vietnam War,
regulate commerce with foreign nations and declare
remains intensely controversial: the executive branch
war: the president can make treaties and send and
continues to refuse to accept congressional limitations
receive ambassadors. But the power to recognize other
on the commitment of troops into zones of armed
governments, break diplomatic relations. establish
conflict in support of American foreign policy.
guiding doctrines of policies, terminate treaties, declare
The power to declare war. the paramount decision in
neutrality, make peace. and so much more that is the
the foreign policy of any nation. was given to the
daily substance of the conduct of foreign affairs is not
Congress by the Constitutional Convention in the belief
spelled out in the Constitution. These additional powers
that it was too important to give to the president alone,
have been extracted from the "necessary and proper"
or even to the president and the Senate as is the case of
clause of Article I, Section 8 or from the "Executive
treaty-making. War is an extraordinary undertaking in
Power" granted in Article II. Section I of the Constitu-
the history of a nation. to be entered into only after the
tion.
greatest deliberation. In time of war, certain provisions
Some scholars argue that the foreign affairs power
of the Bill of Rights can possibly be suspended; most
derives from sources beyond the Constitution itself. in
rights and duties under international law relating to the
that the very fact of nationhood results in the recogni-
enemy are abrogated: and treaty obligations are sus-
tion of powers which inherently belong to any sover-
pended or terminated.
eign. Thus in The Chinese Exclusion Case, the Supreme
It was originally proposed that Congress be given the
Court found that Congress could legislate to exclude
power "to make war." This language was changed to
aliens because control over its territory is "an incident
"to declare war" in order to allow the president to
of every independent nation." Almost 150 years after
the adoption of the Constitution, the Court. in United
States I'. Curtiss-Wright Export Corp., sustained a Joint
RITA E. HAUSER is a senior partner with the New
Resolution of Congress which authorized the president
York law firm of Stroock & Stroock & Lavan. She is the
to embargo arms to countries at war in South America
former United States representative to the United Na-
on the theory that this power. too. is inherent to
tions Commission on Human Rights and currently
nationhood. While theorists still debate the source of
chairs the Inter-Parliamentary Group for Human
the foreign affairs power, it is certain that virtually
Rights in the Soviet Union.
NATIONAL FORUM 57
8-23-8
yps
respond to an invasion or sudden attack and to deny any
effective. These two key sections may well be unconsti-
implication that Congress would have any role in the
tutional limitations on the president's authority-a posi-
actual commanding of the armed forces. While it is clear
tion President Ronald W. Reagan took in signing, on
from the Constitutional Convention's decision and sub-
October 12, 1983, the Joint Resolution which authorized
sequent determination by our courts that Congress has
a continued United States participation in the peace-
the ultimate power to decide formally if the Nation shall
keeping force in Lebanon.
go to war. it seems equally evident that the president
Whatever the ultimate determination of this issue by
can commit forces in hostile situations without congres-
the Supreme Court, our history has been marked by
sional approval. The War of 1812 is the one time in our
consultation between the branches of government on
history when Congress debated and declared war on its
whether to engage in hostilities short of a declaration of
own initiative. In every other case, Congress followed
war-as in the Lebanese peacekeeping effort. Because
the president's lead by declaring war at the president's
request or by supporting undeclared wars such as the
war against France in 1800 and the United States Civil
War. Congress, in fact, has never refused an executive
request for a declaration of war or for the support of a
war.
The debate over which branch controls the issue of
taking the Nation into war remains unresolved to this
day. But the growing power of the president in the
broad range of foreign policy activities, especially since
World War I, has effectively moved the fulcrum of
decision making to the executive, with an occasional
and sometimes passionate challenge to that authority
when the war-making activities of any president prove
unsuccessful. The Vietnam War was initially supported
overwhelmingly by both houses of Congress in 1964 by
passage of the Gulf of Tonkin Joint Resolution. The
resolution permitted the use of armed force to assist any
member of the Southeast Asia Collective Defense Trea-
ty who requested aid in defense of its freedom. Thereaf-
ter Congress appropriated funds for the war on multiple
occasions. But by the early 1970s. the country had
turned against what it perceived to be an unsuccessful
war.
a formal declaration of war has not been sought by any
"
in general, the Constitution is
president since World War II. it is likely that future
strangely silent in delineating the foreign
military engagements will be the result of a more limited
request by the president, preferably after full consulta-
affairs power of the United States.'
tion with Congress. Power sharing in such important
decisions as the use of American troops and material
abroad is desirable and in all likelihood will continue-
In the aftermath of this unfortunate war. Congress
albeit subject to the political views of the Nation as
tried to restrain the president from committing troops
expressed at any given moment in its history.
abroad unless pursuant to a declaration of war, statu-
tory authorization, or a national emergency created by
an attack on the United States. Section 5(b) of the War
P
ower sharing does lead to some conflicts, howev-
er. that are not resolved by the Constitution.
Powers Resolution requires the president to terminate
Indeed. many of these conflicts-conflicts be-
the use of armed forces within sixty days of his initial
tween individual rights and the national interest-are
report to the Congress unless the period is otherwise
contained in the Constitution itself. One of the major
extended by Congress. President Richard M. Nixon
arguments perennially offered for congressional partici-
objected to this on the grounds that if Congress failed to
pation in matters of national security is the inherent
act to extend the period, then the president's power
openness of Congress. It is, after all, a forum for debate
would automatically terminate at the end of sixty
and political compromise. whereas the president can act
days-a fact which when known in advance by the
in relative secrecy. In matters of national security, do
parties involved would invite delay in resolving the
the people of the United States have an inherent "right
conflict. Section 5(c) of the resolution allows Congress
to know. as the press has phrased it; indeed, does
by concurrent resolution to direct the president to
Congress have the right to know all that the president
remove forces from a hostile area. Such a resolution
has acquired via intelligence sources which may be
needs only a simple majority of each house to become
covert?
58
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National Security
The conduct of the Constitutional Convention pro-
vides some indication as to how the Founders might
have answered these questions. The Convention itself
adopted a very controversial rule of secrecy, forbidding
printing or publication of anything spoken during the
debates. As late as 1830, James Madison stated that the
Constitution never would have been adopted if the
convention debates had been held in public. The official
Journal of the Federal Convention, printed in 1819, is
formal and does not reveal the true arguments. Private
records of the delegates provide us with most of our
information, especially the notes taken by Madison and
published in 1840. Can anyone imagine the adoption of
such a rule of secrecy by Congress today on a great
national issue? Few modern commentators would urge
Congress to adopt such a rule in a democratic and open
society which prides itself on its right to judge the
decisions of its elected officials. even on the most
sensitive matters of national security.
The issue of secrecy, even in war, remains difficult.
however. The power of the president and Congress in
foreign affairs, as in the domestic sphere, is limited by
GEN.UHYSSES.S.GRANTE
the constraints of the Bill of Rights. In the Pentagon
Papers case. the Supreme Court held that the executive
branch had failed to meet its burden of overcoming a
of confidentiality is a requisite of effective government,
strong presumption against the constitutionality of "prior
particularly as to advice given by cabinet officers to the
restraints of expression." Although the opinions of the
president. or as to information garnered by diplomats
justices were diverse, and some thought the executive
which might be embarrassing to foreign leaders, or
had the duty to protect confidentiality in carrying out
which might affect intelligence operations. Foreign Ser-
matters of foreign policy and national defense. the
vice regulations prohibit response to any subpoena
majority held that the First Amendment bars an injune-
except on the authorization of the secretary or his
tion of the press when it is not shown that disclosure
deputy. The executive. by orders and regulations, has
"will surely result in direct, immediate and irreparable
established classification categories and procedures as
damage to our nation or its people. It would seem.
to the secrecy of documents. and this has been pre-
then, even in the conduct of war. that the right of the
mised simply upon the president's general constitution-
people to know must be balanced against the duty of the
al authority to conduct foreign affairs and upon his
executive to withhold information to save lives or
power as commander in chief.
John Jay, an experienced diplomat as a result of
negotiating the 1783 Treaty of Paris with Great Britain,
the Constitution, as applied, has
wrote in The Federalist of the necessity for secrecy,
particularly to help garner intelligence needed by the
proven to be a flexible instrument which
executive. The Continental Congress itself in 1775 set
permits the government especially in war
up a special committee of five to deal on a secret basis
with potential allies in Europe. The Congress directed
and international crises, to protect the
the Secretary of Foreign Affairs to use all means to gain
national interest.
political information about other countries which might
be helpful and to send reports to the president which
were not open to the Congress itself.
In 1792-93. Gouverneur Morris. serving as the Unit-
protect major national interests. In the past, the great
ed States Minister to France. wrote to President Wash-
American newspapers have exercised self-censorship,
ington and to the Secretary of State in a very frank
often at the request of the government. to avoid risk to
manner. When the Senate was disturbed by the behav-
human life during wartime. It is clear, however, that
ior of the French revolutionary government, it request-
this practice has been abandoned when the war effort is
ed the president to submit Morris's correspondence to
controversial. if not unpopular, and the press believes it
it. Washington submitted documents after deleting
has a duty to expose facts or decisions not made
those he felt should not be transmitted for reasons of
available to the public.
confidentiality. The Senate did not protest. Two years
The issue of secrecy exists also in the desire of the
later, however, the House of Representatives objected
executive to withhold information sought by the Con-
vigorously when Washington declined to provide copies
gress. In recent years, the Secretary of State or Defense
of John Jay's correspondence relating to the Jay Treaty
has frequently invoked "foreign affairs advice privi-
with Great Britain. Opposition to the treaty and to Jay
lege, which is premised on the notion that some degree
by the Jeffersonians in Congress was intense. An exten-
continued on page 64
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How Should Americans
William J. Bennett
Celebrate the
Bicentennial of the
Constitution?
T
o readers of this volume, the question-How
and cultural resources in America. It is perhaps an irony
should Americans celebrate the Bicentennial of
that a nation conceived so much in the spirit of com-
the Constitution?-should now seem rather pre-
merce and freedom has given rise not only to the
sumptuous. Our question is a curious one. The answer
greatest commercial enterprise in the world. but to its
to that question may resemble the punch line of the old
greatest intellectual enterprise as well. Scientific and
joke I have heard children tell. The joke begins with the
intellectual inquiry. the arts and letters, have flourished
question, "Where does a 400 pound cat sleep?" The
in this free. commercial republic. The issue was not
answer is, "Any place it wants to!" And "any way it
then and is not now whether to choose one manifesta-
wants to" is the answer to our question. Because we are
tion of our riches over another. but to expect, welcome,
a free people, we must be given free reign in the conduct
and celebrate many such manifestations.
of our own celebration.
We have all heard it said that the great success of the
Bicentennial celebration in 1976 was marred by some
B
ut the point of this essay is to argue for one
particular way in which a proper celebration of
freely self-propelled activities that did not fit with the
the Bicentennial of our Constitution might take
importance of the occasion. Obviously some silly and
place. For the remainder of this article, my theme is
crass occurrences. even a few frivolous ones. took
straightforward. The creation of this Republic was an
place. The most common criticism of '76 is that it was
act of mind, or. more properly. a series of such acts. We
overly "commercial." I do not share that assessment.
should use this upcoming opportunity to engage in our
No one wishes to salute low-minded activities, but
own act of mind as a way of recalling. appreciating, and
commerce itself is not a low thing and has no small
celebrating this constitutional Republic. A nation that
place here. It was not undignified and certainly not
has lived longer under a single document than any
unnatural that the '76 celebration had a commercial
nation on earth. and whose Constitution is perhaps the
element. There was nothing wrong, I would say, in the
most imitated political document in the world, deserves
Declaration of Independence ashtrays and portraits of
contemplation. Why is it so strong? How is it so strong?
Abigail Adams on sea shells. Such souvenirs were
How can we make it better? To answer these questions,
neither a heresy nor a civic sin.
It would not trouble me a bit were we to witness a
many things-books. articles, histories-can be recom-
buying spree of small statuary of the Founding Fathers
mended as worthy of study. But rather than propose a
long list here, let me recommend only two works: The
or framed and embossed copies of the Preamble to the
Constitution: I would be disappointed if this were the
Constitution itself and The Federalist. If every Ameri-
can could read a little of these two works-the Constitu-
sum of our remembrances. A commercial republic like
ours is not so limited. Indeed, the secret of American
tion and its defense-in the next five years, we would
commerce. our oft-criticized "bourgeois values," is
have enough "celebratory cerebration" to satisfy this
that it makes possible a broad range of activities-low.
high. and middlebrow-that invite both schlock and
profundity. The secret of a free. bourgeois society is
WILLIAM J. BENNETT was appointed chairman of
that although it is often attacked for its emphasis on
the National Endowment for the Humanities (NEH) by
commerce, it also makes possible much of what we
President Ronald Reagan in December 1981. He was
value. We must remember two facts: first. commerce
formerly president and director of the National Human-
had a central place in the ideas of the Founders, and
ities Center in Research Triangle Park, North Carolina.
second, commerce itself has been a major contributor to
A former professor of law and philosophy, Mr. Bennett
our prosperity and strength as a nation and to the
has written on such topics as constitutional law, ethics,
genesis of unparalleled and unprecedented opportuni-
and education. He is author of Counting By Race:
ties for the wealth of the spirit. Witness the health and
Equality in American Thought from the Founding Fa-
multitude of churches, educational institutions, books.
thers to Bakke.
60 PHI KAPPA PHI JOURNAL
8-23-84
Americans Celebrate
author. I shall mention other things, but let me be more
the works of the great philosophers: they had studied
specific as to what we are looking for in these two.
the history of confederations and states before them;
First, let us steal the document, at least for a time in
and, on the basis of what they read, they drafted this
the next few years, from the lawyers. Too often. too
document. The same exercise can be fruitfully repeat-
many of us think of the Constitution as only a lawyer's
ed. Going beyond the document and its defense, we
document. In this popular view, the Constitution is
might read what they read.
primarily a statement of law and of rights. Now there is
If one person had to be identified as the Constitu-
support for this view. Some lawyers make a career of
tion's principal author. it would be James Madison. He
combing the Constitution trying to find in it another
was not a lawyer. but a student of the humanities-a
right not yet discovered. Discussions of the Constitu-
student of languages and philosophy, of Hebrew and
tion often occur in "lawyers only" language and are
religion, of the history of ancient states. Study and his
obscure and inaccessible to the layman. But the Consti-
own genius enabled him to draft the Constitution. The
tution is not principally a lawyer's document: it is a
same sort of study can help many of us to appreciate it.
civic document. And if it is, as I contend, a philosophic
This is intended to diminish neither the legal signifi-
statement, then it is a statement of practical political
cance of the document nor the significance of law itself,
philosophy grounded in the thoughts and language of
but rather to say that law- our constitutional law-
citizens. In The Federalist No. 1. we are reminded that it
drew on notions of higher law and on the great ecclesi-
was by an act of reflection that the American people
astical, theological, and philosophical debates of the
were uniquely blessed in setting up their scheme of
centuries. Study of. or at least some exposure to, the
government. It is their document. their contemplation
debates of the intellectual precursors of our Constitu-
that matters most:
tion can form part of a fitting celebration. In such a
study. one does not come upon legal niceties and the
It has been frequently remarked that it seems to have been
splitting of hairs, but notions of human nature, of
reserved to the people of this country by their conduct and
power. of conflict, of property, of the rule of God, of the
example to decide the important question. whether societies
of men are really capable or not of establishing good govern-
rule of nature. This exciting and engaging material-the
ment from reflection and choice or whether they are forever
history of man and ideas-is a crucial part of our
destined to depend for their political constitutions on accident
constitutional legacy.
and force. (Emphasis added.) [The Federalist. No.1]
Second, we must consider the Constitution a political
document. an argument by one group of active citizens,
And decide it in this way they did! As Alexis de
the Founders, against the views of others. If we are not
Tocqueville said some fifty years later:
now otherwise weary of the stuff of politics, The
Federalist can be read in this way, as a straightforward
It is new in the history of society to see a great people turn a
political argument. One scholar has referred to the
calm and scrutinizing eye upon itself when apprised by the
Federal Convention as a reform caucus. The men who
legislature that the wheels of its government are stopped. to
see it carefully examine the extent of the evil. and patiently
wrote the Constitution were active and vigorous; they
await two whole years until a remedy is discovered to which it
were engaged in a political campaign for the adoption
voluntarily submitted without its costing a tear or a drop of
and ratification of their scheme. We should look at our
blood from mankind. [Democracy in America, Vol. I]
Constitution in this light, as issuing from, as it ad-
dressed, the world of events and the passions of the
The men who wrote the Constitution were both
times. This was no philosophers' symposium far re-
practical and thoughtful. So we remain. They had read
moved from the world of action and "fighting faiths.
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We can consider our drive to constitutionalism as
This is a country of different colors, races, and ethnic
exciting. political drama. It was and is still running. We
and religious backgrounds. But in the last fifteen to
may ask of it now: Can this set of ideas prevail? We.
twenty years we have been in a fit of pluralism. "cele-
like the Founders, might pause in our various busi-
brating" our idiosyncrasies and differences. Some of
nesses to contemplate the large political issues of that
this is quite appropriate, but we need a balance: more
"old" Constitutional Convention. We might study and
needs to be said about the ways in which we are still
discuss the thoughts and arguments of that Convention
bound to our fate together, as one people. This Consti-
in classrooms and community forums. These can be
tution literally "constitutes" us as a people-one peo-
pretty dramatic occasions themselves.
ple. We are the same not in some dull, colorless,
It has been said that one of the appropriate things we
shapeless form, but rather in respect to the fact that
could do at this time would be to raise the Founding
constitutionally each of us is regarded as equal-equally
Fathers from immortality to mortality! Rather than view
capable of nobility and virtue, equally protected by the
the Founders as stiff, quasi-godlike creatures. we
law, each possessing as much human nature as the next.
should see them as they were: energetic and ambitious
In our time there might be no greater task than to regard
people with a serious and thoughtful agenda, busy
the Constitution as a reminder not of how we differ, but
young men who wanted to return to their lives as
of how we are the same. Our Founders saw a deep and
farmers, merchants, husbands, and fathers, but who
true consensus on-values, a consensus that in recent
took leave from their other responsibilities to forge this
times has become harder for us to recognize. But what
Republic.
Abraham Lincoln said so well in his Chicago address of
Third. we might wish to see the ways in which the
July 10, 1858 on the Declaration still holds true. It
Constitution both carried on a tradition and set forth
carries forward from the Declaration and the Constitu-
something new. In The Federalist No. 14. Madison
tion to our own day:
wrote:
We hold this annual celebration to remind ourselves of all the
is it not the glory of the people of America that, whilst they
good done in this process of time. of how it was done and who
have paid a decent regard to the opinions of former times
did it, and how we are historically connected with it, and we
they have not suffered a blind veneration for antiquity
to
go from these meetings in better humor with ourselves-we
overrule the suggestions of their own good sense
?
[The
feel more attached the one to the other, and more firmly
Federalist, No.14]
bound to the country we inhabit. In every way we are better
men in the age. and race. and country in which we live for
these celebrations. But
there is something else connect-
Today we might ask: What is the mix of both? What was
ed with it. We have besides these men-descended by blood
old? What was new? What was borrowed? And again,
from our ancestors-among us perhaps half our people who
what is still true?
are not descendants at all of these men
When they look
Fourth. one might look at the Constitution as a
through that old Declaration of Independence they find that
constellation of our deepest values and convictions as
those old men say that "We hold these truths to be self-
evident. that all men are created equal." and then they feel
one people. In it we see exhortations, reminders, and
that that moral sentiment taught in that day evidences their
cautions, all hinged on deep-seated values. When we
relation to those men. that it is the father of all moral principle
look at it and the Declaration of Independence. we see
in them, and that they have a right to claim it as though they
the celebration of the ideas of equality and liberty-the
were blood of the blood. and flesh of the flesh of the men who
greatest political ideas, perhaps simply the greatest
wrote that Declaration. and so they are. This is the electric
ideas. ever conceived by mankind. But underlying this
cord in that Declaration that links the hearts of patriotic and
document is also the celebration of self-improvement,
liberty-loving men together, that will link those patriotic
of experimentation. and of personal virtue. And, of
hearts as long as the love of freedom exists in the minds of
course. corollaries of all the more familiar values-
men throughout the world. [Basler, The Collected Works of
Abraham Lincoln]
freedom of religion and the press. due process, and
equal protection, etc.-also support the document. We
should dig even deeper to see the underlying constella-
I end where I began. Any celebration of the Constitu-
tion of values this Constitution had and still has. The
tion will be a celebration not only of the people who
Federalist's argument too is based on shared convie-
made it. but of the people for whom it was made. It was
tions and values. A good exercise would be to identify
meant to serve us all, and it has served us well. For
them and determine their current vitality.
most of us, our faith in it is whole, as that faith has been
justified by experience. A close examination of the
Constitution's principles, not its rules but its founding
principles. principles accessible by a broader intellectu-
al approach such as I have recommended, may be what
I
have a special reason for recommending this last
is needed most. This approach. if done well, will help us
exercise, and it is suggested less by an issue before
rediscover what it is that unites us as a people and
the Founders of 1787 than by an issue palpably
justifies the statement of faith and principle on our
before us today. It is this: much has been said about
coins: "E Pluribus Unum." That phrase is worth con-
America as a pluralistic society. Lately the term "melt-
templating today. 200 years after the charter of our
ing pot" has been downplayed in favor of the term
collective birth as one free people. On the occasion of
"tapestry quilt. Indeed, America is a tapestry quilt.
this celebration. let us both reflect and enjoy.
62 PHI KAPPA PHI JOURNAL
8-23-84
Howard from page 43
Ultimately. decisions about the ambit of First
al Association for the Advancement of Colored People
Amendment protection turn on judgments about the
(NAACP) has been held to be a protected form of
underlying values to be served. One perspective of the
expression.
First Amendment views its central meaning as the
Beyond expression as such, it is no accident that
protection of expression connected with the political
alongside the First Amendment's protection of speech
process. Such an approach would give at least a lower
stand the amendment's guarantees of religious liberty
level of protection to "private" speech. A broader
and of a free press. Historically. claims to rights of
reading of the First Amendment emphasizes freedom of
conscience were powerful forces in giving rise to claims
expression as enhancing individual self-fulfillment. So
of rights of free expression in secular matters as well.
understood. the amendment performs a function not
Likewise. effective expression. certainly in the Ameri-
unlike that of using the due process clause or other
can experience, requires that editors and journalists be
constitutional provisions to create zones of personal
unfettered in airing the issues of the day.
"autonomy." Such zones might include decisions about
It is an accident of history that the First Amendment
using contraception or having an abortion.
is in fact the first of the amendments making up the Bill
The First Amendment protects a whole matrix of
of Rights (two amendments that appeared ahead of it on
rights. Protection for free expression has come to
the list submitted to the several states in 1789 were not
include the right to speak as well as the right to remain
adopted). But the "firstness" of the First Amendment
silent in the face of government demands for informa-
has great symbolic force all the same. Perhaps James
tion (such as a state law requiring teachers to list every
Madison's contemporaries saw less in the First Amend-
organization to which they belong) which may "chill"
ment than that great son of the Enlightenment hoped
one's freedom to associate with others of like views.
would take root there. But later generations have found
Another example of a protected First Amendment right
in the First Amendment a potent force for creating the
arises when individuals associate to promote their
conditions of a genuinely open and free society.
causes in court: litigation by such groups as the Nation-
Mathews -continued from page 48
discretion. Yet there is cause for some cheer in recalling
relations. Participation provides the essential ingredi-
the rich heritage from which our first principles were
ent for a democratic society.
drawn. "We the People
is a phrase that distills
Participation is important, first of all. because it
centuries of political experience and wisdom.
develops the public side of human nature. Democracies,
Democratic theory was already 2000 years old when
in order to flourish. require people with a certain level
the Constitution was written. The Framers. schooled in
of civic intelligence. Public rather than just private skills
the classics. were closer to that classical heritage than
have to be developed. There are a number of things we
most of us are. They drew on that legacy even as they
cannot do until we can think about them. but being a
added to it. The same legacy is available to us, and it is
good citizen is probably something that we cannot think
our responsibility to see that what the people ordained
about until we do it. The most basic lessons in civic
is maintained. In fact. if we were cut off from the roots
education come from all forms of "publicking," from
of our political culture. politics would become largely a
the experience of "sharing in."
matter of elections, and public administration largely a
Furthermore. the classical understanding of the pub-
matter of mechanics. Bereft of purpose, we would be
lic, of participation. and of what it meant to be a public
left only with issues. We may have trouble now with the
citizen. carried with it a prescription for formal educa-
practice of popular sovereignty because we are too far
tion. The original definitions of a public-munded person
removed from the origins of that principle.
and of an educated one were very similar. The word
Our heritage is a useful reminder, a string tied on our
"public" itself derives from the word for maturity. It
collective finger, to help us remember ways of thinking
suggests that the public-minded must be able to see
about politics that enrich impoverished practices. For
beyond themselves, must be able to imagine the conse-
example. we all talk about popular sovereignty and
quences of their personal actions on others, must there-
public participation today in terms of power and rights.
fore comprehend the interrelation of concerns in the
Yet there is a better understanding available in recalling
state and be able to fit particulars into a coherent whole.
that "participation" in the original sense did not mean
The other source of the word "public" is in a phrase
participation as in a football game or a contest in which
that meant "caring with." It implies that a public
someone must lose in order for someone else to win.
citizen-an educated person-has certain traits of char-
Participation meant "sharing in," as we use it when we
acter, certain values. as well as certain traits of mind.
talk about participating in a communion service or a
When we seek to develop civic intelligence, we must
potluck supper or a family reunion. Without denying the
attempt to teach something more than the functions of
legitimacy of competition, as when we debate political
government. Civics is not a subject to be taught; rather,
issues and select candidates, it is nonetheless the shar-
it sets a standard for teaching every subject.
ing kind of participation that a doctrine of popular
As the first function of participation is to define and
sovereignty envisions-because that is what creates a
create the public person, so its second function is to
public-and a democratic nation!
create the public itself. The public is not just a group of
Participation. then, is not just a means of choosing
people-the crowd at the shopping mall-but people
officials for the government or a clever form of public
bound together by more permanent, shared interests
NATIONAL FORUM 63
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and common values. We identify these interests and
is why it is called a democracy
Our public men have,
values through participation. We can discover where
besides politics, their private affairs to attend to, and our
we and our neighbors have a common stake only by
ordinary citizens, though occupied with pursuits of industry,
talking to them. The public begins in conversation. the
are still fair judges of public matters: for unlike any other
most elemental form of participation. Town meetings
nation, we regard him who takes no part in these duties not as
unambitious but as useless
and community forums, even the once-common discus-
and instead of evoking discus-
sions in the post office, are not just "nice." They are
sion as a stumbling block in the way of action, we think it an
indispensable preliminary to any action at all.
indispensable. They are the occasions in which the
public is created-and re-created.
Those lines are not from James Madison or Alexan-
The prescription for maintaining a healthy public life
der Hamilton or John Jay in 1787. They are from
and a democratic society is still available to us in a
Pericles in 430 B.C. But the Framers surely had read
description of one of our earliest constitutions:
them when they wrote, "We the People
Our constitution
favors the many instead of the few: this
Hauser-continued from page 59
sive debate occurred, but in the end the majority
imposed a boycott in response to the hostile acts of a
apparently accepted Washington's argument that cer-
foreign government. such as the Cuban trade embargo
tain disclosures would harm the Nation. All presidents
and the recent short-lived Soviet wheat embargo.
have since maintained that the papers and recordings of
advice from subordinates are personal, not public, and
not subject to congressional demand. In United States
many of these conflicts-conflicts
v. Nixon, the Supreme Court in 1974 affirmed this
principle but ruled that it was not an absolute, unquali-
between individual rights and the national
fied privilege. Rather, the Court struck a balance be-
interest-are contained in the Constitu-
tween the need to know by Congress or a private
plaintiff or defendant and the executive's requirement
tion itself.
of confidentiality; the latter, in particular, is to be given
great weight if the matter sought involves military.
diplomatic, or sensitive material, the revelation of
Both Congress and the president have attempted to
which would likely injure an important national interest.
protect American technology from theft and American
The authority of the president to gather secret intelli-
industry from penetration of its trade secrets by foreign
gence was long ago recognized by the Supreme Court in
powers. Here, too, the power to regulate is ample, but
a suit involving a contract for clandestine information
in a free and competitive economy objectives are often
made between President Abraham Lincoln and a secret
difficult to meet effectively. The need to protect our
agent. The Court stressed that in all matters affecting
skill and knowledge must be balanced against our desire
our foreign policy, not just in wartime. secrecy by the
for a free and open business climate, regulated by the
executive might be essential and would be respected
government only to the degree required by the threat to
even to the extent of denying a plaintiff the right to sue if
national security.
the confidence would thereby be breached.
The Constitution offers little guidance as to the con-
Our courts are particularly deferential to claims in-
duct of foreign affairs. It is even ambiguous as to where
volving secret agents, the Central Intelligence Agency
these foreign affairs powers lie. Public policy disputes
(CIA), and other intelligence services and have even
continue to arise because of conflicting requirements of
upheld prior censorship of writings by former agents
the Constitution. These conflicts have been resolved,
where revelations might injure operatives or reveal
however. because the Constitution, as applied, has
significant state secrets. The United States has not
proven to be a flexible instrument which permits the
legislated a state secrets act as have other democratic
government, especially in war and international crisis,
nations. The courts are thus left with-the delicate task of
to protect the national interest. Individual rights and
balancing individual rights enshrined in the Bill of
liberties have been restrained only in cases of a true
Rights against the obligation of the state to assure its
threat to national security. Where a wrong has oc-
own security and protect its secret services.
curred. as in the internment of Japanese-Americans
during World War II, the Nation has admitted error and
has sought to remedy, to the degree possible, the
F
inally, the Constitution is silent upon certain
damage done to the individuals involved. Panic, if not
issues that were simply nonexistent in 1787. The
hysteria, accompanies war and national emergencies;
Founders could not have foreseen some of to-
the Constitution affords an exemplary brake on these
day pressing national security issues. For instance, in
forces which might otherwise jeopardize the rights of a
recent years legislation has been enacted to give the
free people. The contemporary world is a complex
president through a system of export licenses some
composite of often-opposing forces and ideologies in
control over the export of advanced technology to
which America bears the burden of defending liberty for
communist- or terrorist-dominated countries. The es-
its people and for other free nations. The power of the
tablished procedures have been sustained by the federal
executive to act, therefore, must be clear and intelligi-
courts over objections that they impede commerce or
ble. Yet, it must never overreach its intended bound-
violate private contracts. Sometimes the president has
aries. lest our own liberties be placed in jeopardy
64 PHI KAPPA PHI JOURNAL
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