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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 (5 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/ NATIONAL Forum THE PHI KAPPA PHI JOURNAL FALL 1984 TOWARD THE BICENTENNIAL OF THE ICONSTITUTION GUEST EDITED BY MARK W. CANNON WITH WILLIAM J. BENNETT WALTER BERNS ALBERT .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 ASSOCIATION 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 George W. Bright R. Lee Hornbake University of Maryland Adelphi, MD 20783 CONTRIBUTING EDITORS National Vice President ILONA HERLINGER John Diebold E. K. Fretwell Jack E. Reese School of Music Leland Miles Arliss L. Roaden University of Puget Sound Robben W. Fleming Tacoma, WA 98416 EDITORIAL CONSULTANTS Vice President-Eastern Region 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 Veterinary Medicine Journalism Department of English Tennessee Technological University University of Missouri Northern Arizona University Cookeville, TN 38501 Vice President-West Central Region DOROTHY TRUEX Office of Alumni and Development EDITORIAL ADVISORS: Academic Administration-Jewel Friend, Mary Louise University of Arkansas at Little Rock McBee, Jonathan Messerli; Adult Education-Margaret E. Holt; Administrative Sci- Room 314, Administration Bldg. S. 33rd and University ence-Kueun Choi; Allied Health-James Gullerud; Biomedicine-Harold M. Little Rock, AR 72204 Kaplan; Business-Wanda Blockhus; Chemistry-Robert A. Condrate, Sr.; Commu- nications-Carolyn Jacobson, Ray McKerrow, Mary Jean Thomas; Classics-Robert Vice President-Western Region E. Wolverton; Creative Writing-Sheila Roberts McGuire; Education-Ohmer MILDRED I. JOHNSON Milton, Ernest Ras Rowe; English-Robert A. Armour, Martha Y. Battle, Mary F. College of Business Hayes, Ann Taylor; Environment-Pete A. Y. Gunter; Foreign Languages-Ann B219 Clark Building Colorado State University Nickerson Hughes; Geology-Daniel B. Sass; Humanities-F. DeWitt Platt; Institu- Fort Collins, CO 80523 tional Studies-Robert H. Linnell; Law-Patricia Dore, Mary Elizabeth Kurz; Li- brary & Information Science-Jean Culp Flanigan, Carol Norris; Linguistics- Past President Robert Hacke; Nursing-Janet A. Rodgers; Philosophy-David Hiley; Physiology- JOHN J. McDOW Benjamin Ricci; Political Science-Clara Penniman; Psychology-Theodore Department of Agricultural Engineering University of Tennessee Dembroski, Ben Eller; Science Education-Jerry B. Ayers; Sociology-Marion Knoxville, TN 37901 Dearman; Technology-W. Rollin Williams Regent E. ANN NALLEY Department of Physical Science EDITOR: Stephen W. White POETRY EDITOR: Daniel M. Fogel Cameron University MANAGING EDITOR: Elaine M. Smoot Lawton, OK 73505 EDITORIAL ASSISTANTS: Joann Miller BOOK REVIEW EDITOR: Robert Loftin Sandra White Executive Director GEORGE L. ROBERTSON Pamela Ripley COVER DESIGN: Steve Phillips The Honor Society of Phi Kappa Phi Linda Vance Box 16000 Lisa Adams-Cole GRAPHIC ARTIST: Majid A. Ejlali Louisiana State University ISSUE CONSULTANT: James Glaser Baton Rouge, LA 70893 President Elect ROGER R. YOERGER The Honor Society of Phi Kappa Phi 107 Agricultural Engineering Bldg. University of Illinois Urbana, IL 61801 was founded in 1897 and became a national organization through the efforts of the presidents of three state universities. Its primary objective has been from the first the recognition and en- Editor couragement of superior scholarship in all fields of study. Good character is an essential sup- STEPHEN W. WHITE porting attribute for those elected to membership. Since Chapters elect from all curricula of Box 19420A their respective universities, both democracy and coordination in educational endeavors are East Tennessee State University Johnson City, TN 37614 fostered. The motto of the society is philosophia krateitō photon, which is freely translated as "Let the love of learning rule mankind." Director of Fellowships RUTH M. PATRICK Supplementing the work of its Chapters, the Society devotes income to the annual award Knapp Hall of fellowships for graduate study, the erection of funds to endow the society's publications and Louisiana Cooperative Ext. Service fellowships, and the publication of this journal. Phi Kappa Phi is a founding member of the As- Louisiana State University Baton Rouge, LA 70803 sociation of College Honor Societies. 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 Corporation 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 strengthen 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. Hohenstein President, The Honor Society of Phi Kappa Phi John President, Bar C. Association the Shepherd American Jok President, W. Mead Simpson Data Central Mack U Cannon Shephen Th. White Guest Editor Editor, National Forum: The Phi Kappa Phi Journal 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. The views expressed in this publication do not necessarily agree with those of the publisher, the Board of Directors of The Honor So- ciety of Phi Kappa Phi, the American Bar Association, or the financial contributors. National Forum: The 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 International and in printed form from UMI Article Clearinghouse, Ann Arbor, MI. National Forum (ISSN 0162-1831), The Phi Kappa Phi Journal is published four times a year-winter, spring, summer, and fall by The Honor Society of Phi Kappa Phi, Box 16000, Louisiana State University, LA 70893. Printed at The William Byrd Press, Inc., 2901 Byrdhill Road, Richmond, VA 23261. Copyright © The Honor Society of Phi Kappa Phi, 1984. Nonmember subscriptions $10.00 per year. Single copies $2.75 each. NATIONAL OFFICE, The Honor Society of Phi Kappa Phi, Box 16000, Louisiana State University, Baton Rouge, LA 70893. Material intended for publication should be addressed to Stephen W. White, Editor, National Forum, Box 19420A, East Tennessee State University, Johnson City, TN 37614. Other communications should be addressed to the proper official: see roster of national officers on the inside front cover. Why Mark W. Cannon Celebrate the Constitution? W hy celebrate the Constitution?" Why celebrate a yellowed, 200-year-old (if piece of parchment with faded print? low CELD 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 V. 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"-a 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 wrote: law" among Americans. This respect for law stems "We can no longer say there is nothing new under the from the awareness that the Constitution, and the sun. For this whole chapter of the history of man is government under law established by it, were created new." We often pay tribute to "firsts" in this country- by the people to secure their safety and happiness. The to breakthroughs in science, in sports, in space technol- ogy and exploration, and in the arts. Our Bicentennial is an occasion for celebrating our Constitution as a break- MARK W. CANNON has served as the administrative through in creating an energetic government that would assistant to the chief justice of the United States for the be restrained from using its powers to subjugate the past twelve years. Formerly the director of the Institute 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 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 times 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 T Gordon S. Wood he Intellectual Origins of the American Constitution T he Constitution was created at a stroke in the 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 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 of 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 eliminating 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 Intellectual Origins tionary governments, including that of the federal gov- ernment created by the Constitution. There was another set of ideas encapsulated in the theory of balanced or mixed government. It came likewise out of antiquity and was closely if not inextricably entwined with the tradition of classical republicanism. The classical the- ory of balanced government provided much more than the foundational ideas for the structures of the several state governments. The classical theory also included the notion of an independent president, the aristocratic Senate, and the popular House of Representatives. Since at least the time of Aristotle, theorists had categorized forms of government into three ideal types-monarchy, aristocracy, and democracy. These types were derived from the number of rulers in each: Congress Country 2 1 for monarchy, one person; for aristocracy, a few no- bles; for democracy, all the people. Aristotle and others believed that each of these rulers when alone entrusted with political power tended to run amok and to become perverted. By itself monarchy became tyranny; aristoc- racy became oligarchy; and democracy became anar- chy. Only by mixing each of these types together in the same constitution, only by balancing the tendencies of John Locke (1632-1704). each of them, could order be maintained and the perfections of each type of simple government be dissatisfied as many American leaders were with the achieved. The result would be a governmental system in Confederation and with the state legislatures, none of equilibrium-the very kind of static model that the them-not even Alexander Hamilton who was the most eighteenth-century Enlightenment admired. monarchically minded among them-was prepared to For most enlightened thinkers of the eighteenth cen- give up on republican government. They knew, as tury, including those of the American colonies, there Madison said, that "no other form would be reconcilea- already existed at least in theory such a perfectly ble with the genius of the people of America; with the balanced government-the English constitution. The fundamental principles of the revolution; or with that English constitution with its balance between king, the honorable determination, which animates every votary House of Lords, and the House of Commons corre- of freedom, to rest all our political experiments on the sponded marvelously with the classical categories of capacity of mankind for self-government.' Hence in the monarchy, aristocracy, and democracy; and it, there- new Constitution, the Framers provided for periodically fore, seemed to intellectuals everywhere, not just to elected officers of the executive and legislative Englishmen but to continentals like Voltaire and Mon- branches, and they made the federal government guar- tesquieu, to be what William Hooper of North Carolina antee a republican form of government for each state in 1776 called "a system that approached as near to (Article IV, Section 4), and forbade the United States perfection as any could within the compass of human from granting any titles of nobility (Article I, Section 9). abilities." Still, the new federal government was sufficiently When Americans in 1776 revolted from this perfect different from the Confederation and the governments English constitution, most of them had no intention of of the states to arouse fears among many people that it repudiating the classical ideal behind it. Nor did they was not "strictly republican." Did it not have a strong believe that this ideal of balanced government was king-like executive and a powerful Senate with an incompatible with republicanism. They thought they aristocratic bearing? Unlike the Confederation, did it could have single governors and senates of wise men, not operate directly on diverse peoples over half a even within an elective system. Their quarrel with the continent despite the warnings of theorists and experi- English constitution was not, therefore, with its theory ence that such a large republic could not last? Fears and but with its recent practice and its current workings. questions like these are what led Hamilton, Madison, They and other English critics, speaking out of the civic and John Jay to spend so much time in The Federalist humanist tradition of republicanism, thought that in the trying to prove that the Constitution was really "con- course of the eighteenth century the ideal English formable to the true principles of republican govern- constitution had degenerated and become corrupted. ment." In the process they helped to develop and shape The king was using his power to appoint men to crown further American ideas of republicanism. offices in order to bribe and influence members of the House of Lords and House of Commons. The monar- I n 1787, classical republicanism was the basic pre- chical or executive part of the constitution was, in other mise of American thinking-the central presupposi- words, unsettling the balance among the three suppos- tion behind all other ideas. However, it alone was edly independent, ruling forces, and it was subtly not responsible for the peculiar structure of the revolu- absorbing all power to itself. The so-called balanced NATIONAL FORUM 7 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 most 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 8 PHI KAPPA PHI JOURNAL C 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, Congress Contrage Liberty 5 2 1 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, they were agreed upon by the leadership to secure the George Washington presides at Constitutional Convention 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 Gouverneur 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, Mr. Morris Annapolis call, and three others instructed their dele- is co-chairman of Project '87, a 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 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 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 the sights of government and couching its purposes in legislature into specific powers, including the crucial eloquent language. The final draft report of the Commit- "necessary and proper" clause which permitted the tee of Style was approved in two days, and on Septem- broad (or Hamiltonian) construction of the Constitution 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- NATIONAL FORUM 11 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 taking 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 checks 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- ior, 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 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. NF 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. These qualities will sustain the offer not merely histories, but fresh perspectives and cornucopia of benefits engendered by the personal diverse insights on their respective topics. creativity and vitality encouraged by our constitutional These articles will help people understand the United system. States Constitution and those elements of it that have As we approach our third century, this is an appropri- undergirded pervasive freedom and creativity in the ate historical moment for national reflection on two arts; in science, invention, and technology; in speech, questions: What is important to conserve from our press, and religion; in enterprise; and in methods of constitutional heritage? and What courses must we helping each other. The articles emphasize the need for chart to reach new heights of a free, creative, problem- civic education, wisdom, and virtue; for the willingness solving, enterprising America? NF WOOD-continued 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 habeas corpus, concern for property rights, fear base of English constitutionalism-al 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 distinc- expanded, and reshaped their intellectual legacies to fit tions between statute law and the fundamental law of the dynamics of their changing experience. NF NATIONAL FORUM 13 Albert P. Blaustein The United States Constitution A Model in Nation Building T lhe United States Constitution is this nation's 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.] Condorcet, 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 Council 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 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- in all their discussion of a political or social contract, of ly every nation recognized the inevitability of having a 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- cal freedom The Constitution of the United States lent is only a footnote in constitutional scholarship. But the 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 NATIONAL FORUM 15 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 Franklin was the pivotal point, Franklin who was a legend, but a very active one, and who saw to it that the T he third reason for the widespread influence of the United States Constitution abroad is that 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 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 États 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 d'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 legal and its amendments. 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 NATIONAL FORUM 17 C 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 1 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 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 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 # i I 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. O ther fundamental changes have occurred in "It is not the duty of the House or the 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, eat 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 ease 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. NATIONAL FORUM 19 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 coequal 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 discharged. Another has a recreant son whom he would like to get into F inally, I would like to consider the relationship of the Congress and the president, in its idealized 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 times in one used to be called civics class, we were taught that there week, by these applicants in personam, and they will require you to go at once and exert your enormous powers. were three branches of government at the national 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 foreseeable 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 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 impoundment provisions of the Budget Act of 1974. terms. That is twenty years. During the whole of that time we 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. I 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 o'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. NF NATIONAL FORUM 21 T 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 tossed upon an ocean where we can see no land-nor, T he central challenge confronting the Framers of 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 our 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 proven 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 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 Taff 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- NATIONAL FORUM 23 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 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 FINE never-ending tension between the President exercising President James Garfield and his cabinet. the executive authority in a world that presents each day some 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 some times, on some subjects, that the President elected by all I desire to so conduct the affairs of this Administration that if, 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 encies are local and not countrywide. left, and that friend shall be down inside of me. 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." NF NATIONAL FORUM 25 COURT The Judiciary: Warren E. Burger OF SUPREME THE The Origins of Judicial Review THE UNITED OF SEAL 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 v. 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 or 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 the fifteenth chief justice of stitution in the United States have suggested from time the United States. 26 PHI KAPPA PHI JOURNAL The Judiciary M.P. Rice Supreme Court Historical 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 added.] 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 this was confirmed in Van Horne Lessee V. 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 waver in his attitude. In a letter to a friend dated August I take it to be a clear position; that if a legislative act 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- dent after November 1800, with a "lame duck," Feder- it not come in Marbury, it would have come later, but 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 a goodly number of federal judges was another. But the early in our history. 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 v. 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 delivered. March when Jefferson actually took office, Adams 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 the manner in which the executive conducts its affairs"; and "Yes, It is the province of the judiciary to expound the laws delivery is a purely ministerial act"; and "Yes, it is It may say too, that an act of assembly has not changed the improper that the new administration will not perform Constitution [of Virginia], though its words are expressly to the simple ministerial act of delivery"; but the Court that effect. [I]t is conceived, for the reasons above could also say, "However, this Court has no power mentioned, that the legislature have not power to change the fundamental laws under the Constitution to entertain any original action except those specified in Article III, and this case is not Underlying Jefferson's hostility to judicial power was one of them. That being so, Section 13 of the Judiciary the very fundamental difference between the Federalist Act of 1789 purporting to give the Supreme Court such belief that a strong national government was the key to authority would be invalid and any action to compel the the future of the new nation and the opposing belief of executive to deliver the commission to Marbury could the Jeffersonians, who sincerely feared centralized not be entertained as an original action." This, in power and wanted to keep the states the strong and 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 Walter Berns Do We Have a Living Constitution? I n the first of the eighty-five "Federalist Papers," Constitution has no meaning whatever. Here are the 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 written constitutions-but most of them are not long- product of the social, economic and political philosophy of the 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 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 sees 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 V. Blaisdell). 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 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 formally. In fact, it must be given in a written compact revenue," but convenience is not a measure of constitu- 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 V. Chadha). And from a particu- nowhere reduced to writing, by which a people agree to form one society. The next is a compact, here for the first time lar partisan perspective it is surely frustrating, simply 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 NATIONAL FORUM 31 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 case consist with the letter and spirit of the constitution, are 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 V. 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 crises 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, or allow the government to meet "the various crises of [with reference to Article VI] to prescribe a religious human affairs"-no 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 (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. tion would "live" as long as that structure was pre- 3. In Frontiero V. Richardson (411 U.S. 677 [1973]), the Supreme Court was divided on the issue of whether sex, like race, should be served. NF 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. Id., 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 V. 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." NF NATIONAL FORUM 33 Orrin G. Virtue: Hatch Wellspring of Liberty T he constitutional watchwords of recent genera- Lee Anderson 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 V. 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- IX 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 to "The Ten Commandments" above the Supreme Court bench. the pursuit and protection of individual rights. While there is much to commend in these efforts, they have any despotic or oppressive form so long as there is any virtue not been matched by an equivalent zeal to encourage in the body of the people. individual responsibilities. Early Americans, who Like many of President Washington's sentiments, his prized their dearly won right to vote, might marvel upon conviction that virtue precedes liberty and human rights learning how few eligible voters today go to the polls. was more than his own opinion or even the opinion of a Early Americans, who built a prosperous nation on majority; it was fundamentally accepted and presumed principles of self-reliance, might wonder at the modern by the creators of our government. emphasis on statist controls and citizen entitlements. This presumption did not originate with the Framers Early Americans, who fought the Revolutionary War as but was an American adaptation of centuries of philo- volunteers, might express surprise upon learning of the sophical examination of the conditions necessary to enormous efforts necessary in our day to secure person- preserve liberty. Writing in the seventeenth century, nel for military service. Early Americans, educated at the French philosopher Montesquieu, credited with their parents' knees or in one-room schoolhouses, laying the foundation for our separation-of-powers doc- might question whether the billions spent on national trine, concluded: "Fear is the principle of a despotic, education today will be directly responsible for produc- honour of a kingly, and virtue is the principle of a ing many George Washingtons. Early American parents republican government." Edmund Burke, the re- might express revulsion upon learning of the rampant nowned philosopher and celebrated member of Parlia- drug epidemic and the accompanying violent crime ment, explained why virtue is indispensable to a free epidemic in modern America, and they might marvel society: that their progeny has neglected many virtues accepted as duties by their generation. Men are qualified for civil liberty in exact proportion to their Standing beside the cradle of the new government, disposition to put moral chains on their appetites in the Framers were convinced that the endurance of the proportion as they are more disposed to listen to the counsels of the wise and good in preference to the flattery of knaves. Republic depended on inspiring individual responsibil- 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 1977. 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 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 included virtue in its list. Each of these early testing character, the inference would be that there is not sufficient 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 T he warnings of the Anti-Federalists have not lost in [the Constitution] a finger of that Almighty hand their relevance. In fact, they have been contin- which has been so frequently extended to our relief ually underscored by succeeding philosophers. in the critical stages of the revolution." Often the These cautions are particularly compelling when they debates over constitutional provisions turned on the come from visitors and newcomers to the United delegates' various assumptions about the capacity of States. The noted French jurist Alexis de Tocqueville the people for the virtuous conduct required for self- admonished later generations that "America is great government. because she is good, and if America ever ceases to be The submission of the Constitution to the states did good, America will cease to be great. Austrian immi- not signal an end to the national search for the most grant and social commentator Francis Grund echoed: virtuous form of government. Three notable delegates Change the domestic habits of the Americans, their religious refused to sign and launched an Anti-Federalist cam- devotion, and their high respect for morality, and it will not be paign to prevent its ratification. They contended that necessary to change a single letter in the Constitution in order the people might be virtuous, but power would corrupt to vary the whole form of their government. NATIONAL FORUM 35 These enlightened warnings ring just as loudly today deliverance took concrete form in the Declaration of as they did in our nation's infancy. They call to mind the Independence: Framers' primary concern that their work pass from We hold these truths to be self-evident, that all men are generation to generation. The Framers recognized, created equal, that they are endowed by their Creator with however, that the odds were against them. Other na- certain unalienable Rights, that among these are Life, Liberty tions had striven to establish a limited government for a and the pursuit of Happiness.-That to secure these rights, virtuous society only to witness its destruction. The Governments are instituted among Men, deriving their just early, great democracies of Greece and Rome ended in powers from the consent of the governed, tyrannical dictatorships. Contemporary history also confirmed their fears as the republics of Poland, Hunga- Thus the Nation's first official act sprang from the Judeo-Christian faith that the creator endowed men ry, Austria, Italy, Switzerland, and most notably France had perished in horror just years after their with inalienable rights, the defense of which was the revolutionary births. purpose of government. Again this concept is best These terrifying precedents must have weighed articulated by President Washington: heavily upon the mind of George Washington when he No people can be bound to acknowledge and adore the arose to bid America farewell as its president. Washing- Invisible Hand which conducts the affairs of men more than ton must have pondered what it would take to preserve those of the United States. Every step by which they have American democracy when so many others had failed. advanced to the character of an independent nation seems to His answer was simple and profound: have been distinguished by some token of providential agency the foundation of our national policy will be laid in the Of all the dispositions and habits which lead to political pure and immutable principles of private morality. prosperity, religion and morality are indispensible [sic] sup- 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 "Standing beside the cradle of the new expect that national morality can prevail in exclusion of religious principle. government, the Framers were convinced that the endurance of the Republic de- George Washington was not alone in arriving at this answer to the Framers' greatest question. President pended on inspiring individual responsi- John Adams affirmed that "our Constitution was made bility." only for a moral and religious people. It is wholly inadequate to the government of any other." Supreme Court Justice Joseph Story declared: "Piety, religion, and morality are intimately connected with the well- In the minds of the Framers and early leaders of this being of the state, and indispensable to the administra- nation, the American experiment in self-government tion of civil justice. It is indeed difficult to conceive how would work because the people were virtuous; they any civilized society can well exist without them." were virtuous because they were moral; and they were Likewise, de Tocqueville's poetic answer has been moral because they were religious. Will and Ariel often quoted: Durant, scholars of human history from the early civili- I sought for the greatness and genius of America in her zations to the present, likewise conclude "[t]here is no commodious harbors and her ample rivers, and it was not significant example in history of a society success- there; in her fertile fields and boundless prairie, and it was not fully maintaining moral life without the aid of religion." there; in her rich mines and vast commerce, and it was not Unlike failed democracies, America would be secure in there. Not until I went to the churches of America and heard its liberty by adherence to principles of civic virtue. her pulpits aflame with righteousness did I understand the Thus, the First Congress often authorized federal assist- secret of her genius and power. 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 orthodoxy would stifle, rather than promote, healthy that we may with united hearts and voices unfeignedly religious liberty. Accordingly, when state ratification confess and deplore our many sins, and offer up our joint debates suggested that a bill of rights would be neces- supplications to the all-wise, omnipotent, and merciful Dis- sary to preserve national confidence in the new Consti- poser of all events to remove our present calamities, to tution, James Madison produced an initial draft to avert those desolating judgments with which we are threat- ened provide specific protections for religious liberty: "The Civil rights of none shall be abridged on account of Barely a year later those prayerful entreaties for religious belief or worship, nor shall any national reli- 36 PHI KAPPA PHI JOURNAL Civic Virtue gion be established." Madison clearly meant to pre- while avoiding preferential elevation of one sect over clude Congress from establishing a single national reli- another. Either Jefferson's "wall" was easy to climb, or gion or from giving special preferences to any single he agreed with Madison that the establishment clause sect. 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- lishment clause. During the Ninety-Eighth Congress, a would take to preserve American democ- 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. The nearly 170 years (Everson V. Board of Education). The original intent of the establishment clause-that Con- Court concluded that "the clause against establishment gress must remain neutral between competing religious of religion by law was intended to erect a 'wall of views-has been transformed into the notion of neutral- separation between church and state.' Applying this ity between religion and irreligion. This position, as reasoning, the Court declared in 1962 that voluntary stated earlier, is rather difficult to reconcile with the classroom recitation of a nondenominational prayer opinions of direct participants in the drafting of the Bill composed by a state school board was unconstitutional of Rights. For instance, George Washington stated in (Engel V. Vitale). The following year, the Court over- his first inaugural address that our goverment cannot turned state laws encouraging the reading of selected afford to be neutral concerning "the eternal rules of scriptures at the outset of the public school day (Abing- order and right which Heaven itself has ordained." ton V. Schempp and Murray V. Curlett). According to a Justice Potter Stewart correctly apprehended that the report of the Committee on the Judiciary of the United Supreme Court decisions deprive American children of States Senate, these cases rendered laws in more than "the opportunity of sharing in the spiritual heritage of forty-one states unconstitutional. our Nation" and that "religion is placed at an artificial Advocates of this recent interpretation of the estab- state-created disadvantage" in our public institutions. lishment clause generally rely on Thomas Jefferson's Again, the current regime is hard to square with de statement about the "wall of separation." Although the Tocqueville's observation that religion was America's Founders were ambivalent concerning the appropriate "foremost political institution." relationship between government and religion, histori- It is startling to compare the observations of modern cal inquiry supports the thesis that these great leaders immigrants and visitors such as Alexander Solzhenitsyn did not mean the First Amendment to erect an impene- and Arianna Stassinopoulos with those of their prede- trable wall between church and state. Jefferson himself, cessors, de Tocqueville and Grund. At Harvard, Sol- when prescribing curricula for the University of Virgin- zhenitsyn lamented: "How did the West decline? I ia, planned to include religious teachings in a way am referring to the calamity of a despiritualized and calculated to encourage morality and a belief in God irreligious humanistic consciousness It will exact NATIONAL FORUM 37 from us a spiritual upsurge." Stassinopoulos, former man rights, the Framers' vision that the flower of president of Cambridge University, wrote: "The dele- freedom is nourished only in a virtuous garden seems to gation of religion and spirituality to the irrational has have eluded us. Fortunately, this Bicentennial com- been one of the most tragic perversions of the great memoration offers us an opportunity to reinvigorate our 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 relic 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 principles 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. NF 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 too 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 eignty from 1898 to 1946, and a Commonwealth Consti- constitutional law. NF 38 PHI KAPPA PHI JOURNAL C 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- third would be chosen biennially; they were to be Supreme Court, west pediment. 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- representatives would be determined by the population tation of the participants, the forces that hold 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 that could not be written into a charter of liberty. less desirable than the one overthrown. Many patriots Still, these provisions, designed to avoid a concentra- who have sown the wind have reaped the whirlwind. tion of power, were thought by some Anti-Federalists to The personal and individual goals of the several be insufficient, and they insisted upon a bill of rights leaders of the American Revolution were varied, but specifically limiting the powers of the central govern- there was an overwhelming consensus about securing ment. Despite the logic of the arguments advanced by for the people a body of rights, painted with a broad the Federalists-that it was unnecessary to impose brush in the Declaration of Independence. In his char- explicit limitations on the powers of a central govern- acteristically persuasive language, Justice Louis Bran- ment all of whose powers were conferred by express deis declared in his famous dissenting opinion in Olm- cessions from sovereign states-the risk of rejection of stead V. United States (1928): 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. Constitution that was approved in 1788 was duly They sought to protect Americans in their beliefs, their amended by the first ten amendments, the Bill of thoughts, their emotions and their sensations. They conferred, Rights, on December 15, 1791. as against the Government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized The provisions of the Bill of Rights are familiar to most Americans, although many may have forgotten men. 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 H. 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 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 V. 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 ery, 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 40 PHI KAPPA PHI JOURNAL The E. Constitution Dick Howard 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 Enlightenment, Madison offered a free speech amend- law, the judge maintained that the jury could decide ment which clearly seems to have been intended to give only whether Zenger had in fact printed the statements; 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 State shall 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 people peaceably to assemble, and to petition the Government streets of New Haven, Connecticut, and was charged for a redress of grievances. with breach of the peace, the Court found no "clear and 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. The early cases produced Justice Oliver Wendell A nalytically more elusive, however, are those cases in which the Court has been asked to Holmes's thesis that speech could be curtailed only if it 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 materiel 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. In practice, 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 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 v. 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 NATIONAL FORUM 43 A 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 wrote a market column had leaked information to Wall Such perceptions suggest that a considerable segment 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 inaccu- 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 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 democratic 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 boardrooms, 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. NF McCREE-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 ob- 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 V. for two centuries, and it has made the American Revo- Connecticut (1965) invalidated a state statute making it lution secure. NF NATIONAL FORUM 45 David Mathews We the People " e the People do ordain and estab- ought to be applied at all or whether it should be applied W 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- pate-they are the electors, the jurors, the final judges. I t would seem impossible to have a theory of public 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 Kettering Foun- effectively as it should all of the people all of the time. dation of Dayton, Ohio. He formerly served as Secre- But more universally, more directly, and, to our amaze- tary of the Department of Health, Education and Wel- ment, more successfully than we ever thought possible, fare in the Ford administration and was president of the we exercise the rights of a sovereign people. University of Alabama. He has authored numerous The problems today in the practice of popular sover- articles on issues surrounding public participation. eignty go beyond the question of whether the principle Copyright © 1984 by David Mathews. 46 PHI KAPPA PHI JOURNAL We the People One is not being anti-government to recognize that The first and last stages of policymaking are easy 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-the 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 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 educated 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. In its final stages, the process of policymaking fails T here may be cause for alarm in looking at what 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 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"-is 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 a 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 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-economic, 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 TOUDE 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 M eanwhile, another type of revolution was taking place-the Industrial Revolution. Al- perhaps an apprentice or two. In seaports, small ship- 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 V. 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 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 goals. I t is clear that competition has always been funda- 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 V. 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 condemns both." In 1959, George Meany, president of the AFL-CIO, NATIONAL FORUM 51 UNITED COUNTY OF PHILADELPHIA.COM DISTRICT THE UH 500 SECURITY ANDER OF ORDINAN 500 CENT LOAN. CERTIFICATE N? 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 progress. 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, bet- ficial intelligence. Agriculture is already being changed ter prosper, and work to find their own American by aeroponics and hydroponics. Dream. 52 PHI KAPPA PHI JOURNAL S 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 sor Price, a 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 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 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 aeronautics, 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 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), so America's faith in free most ultimate truth and become more willing to ac- science today is strong enough 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 easy 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. NF 56 PHI KAPPA PHI JOURNAL T 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 had lived through eight years as commander in chief of N ot only is the Constitution relatively silent as to threatened nation. George Washington, in particular, 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 1 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 V. 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 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 affairs power of the United States." request by the president, preferably after full consulta- tion with Congress. Power sharing in such important decisions as the use of American troops and materiel 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 PHI KAPPA PHI JOURNAL 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 THE NATIONS WAR AND CHOICE 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 GEN. ULYSSES. GRANT: foreign affairs, as in the domestic sphere, is limited by 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 injunc- 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 crisis, 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 NATIONAL FORUM 59 William J. Bennett How Should Americans 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 freely self-propelled activities that did not fit with the B ut the point of this essay is to argue for one Bicentennial celebration in 1976 was marred by some particular way in which a proper celebration of 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. many things-books, articles, histories-can be recom- It would not trouble me a bit were we to witness a mended as worthy of study. But rather than propose a buying spree of small statuary of the Founding Fathers long list here, let me recommend only two works: the or framed and embossed copies of the Preamble to the Constitution itself and The Federalist. If every Ameri- Constitution; I would be disappointed if this were the can could read a little of these two works-the Constitu- sum of our remembrances. A commercial republic like tion and its defense-in the next five years, we would ours is not so limited. Indeed, the secret of American have enough "celebratory cerebration" to satisfy this commerce, our oft-criticized "bourgeois values," is 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 W. Reagan in December 1981. He value. We must remember two facts: first, commerce was formerly president and director of the National had a central place in the ideas of the Founders, and Humanities Center in Research Triangle Park, North second, commerce itself has been a major contributor to Carolina. A former professor of law and philosophy, our prosperity and strength as a nation and to the Mr. Bennett has written on such topics as constitutional genesis of unparalleled and unprecedented opportuni- law, ethics, and education. He is coauthor of Counting ties for the wealth of the spirit. Witness the health and By Race: Equality in American Thought from the multitude of churches, educational institutions, books, Founding Fathers to Bakke. 60 PHI KAPPA PHI JOURNAL Americans Celebrate main author. I shall mention other things, but let me be more The men who wrote the Constitution were both specific as to what we are looking for in these two. practical and thoughtful. So we remain. They had read First, let us steal the document, at least for a time in the works of the great philosophers; they had studied the next few years, from the lawyers. Too often, too the history of confederations and states before them; many of us think of the Constitution as only a lawyer's and, on the basis of what they read, they drafted this document. In this popular view, the Constitution is document. The same exercise can be fruitfully repeat- primarily a statement of law and of rights. Now there is ed. Going beyond the document and its defense, we support for this view. Some lawyers make a career of might read what they read. combing the Constitution trying to find in it another If one person had to be identified as the Constitu- right not yet discovered. Discussions of the Constitu- tion's principal author, it would be James Madison. He tion often occur in "lawyers only" language and are was not a lawyer, but à student of the humanities-a obscure and inaccessible to the layman. But the Consti- student of languages and philosophy, of Hebrew and tution is not principally a lawyer's document; it is a religion, of the history of ancient states. Study and his civic document. And if it is, as I contend, a philosophic own genius enabled him to draft the Constitution. The statement, then it is a statement of practical political same sort of study can help many of us to appreciate it. philosophy grounded in the thoughts and language of This is intended to diminish neither the legal signifi- citizens. In The Federalist No. 1, we are reminded that it cance of the document nor the significance of law itself, was by an act of reflection that the American people but rather to say that law- our constitutional law- were uniquely blessed in setting up their scheme of drew on notions of higher law and on the great ecclesi- government. It is their document, their contemplation astical, theological, and philosophical debates of the that matters most: centuries. Study of, or at least some exposure to, the It has been frequently remarked that it seems to have been debates of the intellectual precursors of our Constitu- reserved to the people of this country by their conduct and tion can form part of a fitting celebration. In such a example to decide the important question, whether societies study, one does not come upon legal niceties and the of men are really capable or not of establishing good govern- splitting of hairs, but notions of human nature, of ment from reflection and choice or whether they are forever power, of conflict, of property, of the rule of God, of the destined to depend for their political constitutions on accident rule of nature. This exciting and engaging material-the and force. (Emphasis added.) [The Federalist, No. 1] history of man and ideas-is a crucial part of our And decide it in this way they did! As Alexis de constitutional legacy. Tocqueville said some fifty years later: Second, we must consider the Constitution a political document, an argument by one group of active citizens, the Founders, against the views of others. If we are not now otherwise weary of the stuff of politics, The It is new in the history of society to see a great people turn a calm and scrutinizing eye upon itself when apprised by the Federalist can be read in this way, as a straightforward legislature that the wheels of its government are stopped, to political argument. One scholar has referred to the see it carefully examine the extent of the evil, and patiently Federal Convention as a reform caucus. The men who await two whole years until a remedy is discovered to which it wrote the Constitution were active and vigorous; they voluntarily submitted without its costing a tear or a drop of were engaged in a political campaign for the adoption blood from mankind. [Democracy in America, Vol. I] and ratification of their scheme. We should look at our NATIONAL FORUM 61 Constitution in this light, as issuing from, as it ad- This is a country of different colors, races, and ethnic dressed, the world of events and the passions of the and religious backgrounds. But in the last fifteen to times. This was no philosophers' symposium far re- twenty years we have been in a fit of pluralism, "cele- moved from the world of action and "fighting faiths." brating" our idiosyncrasies and differences. Some of We can consider our drive to constitutionalism as this is quite appropriate, but we need a balance: more exciting, political drama. It was and is still running. We needs to be said about the ways in which we are still may ask of it now: Can this set of ideas prevail? We, bound to our fate together, as one people. This Consti- like the Founders, might pause in our various busi- tution literally "constitutes" us as a people-one peo- nesses to contemplate the large political issues of that ple. We are the same not in some dull, colorless, "old" Constitutional Convention. We might study and shapeless form, but rather in respect to the fact that discuss the thoughts and arguments of that Convention constitutionally each of us is regarded as equal-equally in classrooms and community forums. These can be capable of nobility and virtue, equally protected by the pretty dramatic occasions themselves. law, each possessing as much human nature as the next. It has been said that one of the appropriate things we In our time there might be no greater task than to regard could do at this time would be to raise the Founding the Constitution as a reminder not of how we differ, but Fathers from immortality to mortality! Rather than view of how we are the same. Our Founders saw a deep and the Founders as stiff, quasi-godlike creatures, we true consensus on values, a consensus that in recent should see them as they were: energetic and ambitious times has become harder for us to recognize. But what people with a serious and thoughtful agenda, busy Abraham Lincoln said so well in his Chicago address of young men who wanted to return to their lives as July 10, 1858 on the Declaration still holds true. It farmers, merchants, husbands, and fathers, but who carries forward from the Declaration and the Constitu- took leave from their other responsibilities to forge this tion to our own day: Republic. Third, we might wish to see the ways in which the We hold this annual celebration to remind ourselves of all the Constitution both carried on a tradition and set forth good done in this process of time, of how it was done and who something new. In The Federalist No. 14, Madison did it, and how we are historically connected with it, and we wrote: go from these meetings in better humor with ourselves-we feel more attached the one to the other, and more firmly Is it not the glory of the people of America that, whilst they bound to the country we inhabit. In every way we are better have paid a decent regard to the opinions of former times men in the age, and race, and country in which we live for they have not suffered a blind veneration for antiquity to these celebrations. But there is something else connect- overrule the suggestions of their own good sense ? [The ed with it. We have besides these men-descended by blood Federalist, 14] from our ancestors-among us perhaps half our people who Today we might ask: What is the mix of both? What was are not descendants at all of these men When they look old? What was new? What was borrowed? And again, through that old Declaration of Independence they find that what is still true? those old men say that "We hold these truths to be self- evident, that all men are created equal," and then they feel Fourth, one might look at the Constitution as a that that moral sentiment taught in that day evidences their constellation of our deepest values and convictions as relation to those men, that it is the father of all moral principle one people. In it we see exhortations, reminders, and in them, and that they have a right to claim it as though they cautions, all hinged on deep-seated values. When we were blood of the blood, and flesh of the flesh of the men who look at it and the Declaration of Independence, we see wrote that Declaration, and so they are. This is the electric the celebration of the ideas of equality and liberty-the cord in that Declaration that links the hearts of patriotic and greatest political ideas, perhaps simply the greatest liberty-loving men together, that will link those patriotic ideas, ever conceived by mankind. But underlying this hearts as long as the love of freedom exists in the minds of document is also the celebration of self-improvement, men throughout the world. [Basler, The Collected Works of Abraham Lincoln] of experimentation, and of personal virtue. And, of course, corollaries of all the more familiar values— freedom of religion and the press, due process, and I end where I began. Any celebration of the Constitu- equal protection, etc.-also support the document. We tion will be a celebration not only of the people who should dig even deeper to see the underlying constella- made it, but of the people for whom it was made. It was tion of values this Constitution had and still has. The meant to serve us all, and it has served us well. For Federalist's argument too is based on shared convic- most of us, our faith in it is whole, as that faith has been tions and values. A good exercise would be to identify justified by experience. A close examination of the them and determine their current vitality. 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. NF 62 PHI KAPPA PHI JOURNAL HOWARD-continued 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. NF 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-minded 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 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 and community forums, even the once-common discus- unambitious but as useless 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 NF 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's 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. 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""The Intellectual Origins of the American Constitution" by Gordon S. Wood 2. "Creating and Ratifying the Constitution" by Richard B. Morris 3. "A Model in Nation Building" by Albert Pl Blaustein 4. "Congress: The First 200 Years" by Thomas P. O'Neill, Jr. 5. "The Presidency: Roles and Responsibilities" by Ronald W. Reagan 6. "The Judiciary: The Origins of Judicial Review" by Warren E. Burger 7. "Do We Have a Living Constitution?" by Walter Berns 8. "Civic Virtue: Wellspring of Liberty" by Orrin G. Hatch 9. "Civil Liberties and Limited Government" by Wade H. McCree, Jr. 10. "The Constitution and Free Expression" by A. E. Dick Howard 11. "A Publisher Reflects on Freedom of the Press" by Tom Johnson 12. "We the People by David Mathews 13. "The Commercial Republic" by Betty Southard Murphy 14. "Science, Technology, and the Constitution" by Don K. Price 15. "The Constitution and National Security" by Rita E. Hauser Charles F. 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Please complete or amend the following and return one copy to USIA Credits and Copyright Notice required: Credit will be given to the author and the following notice carried: Reprinted by permission from National Forum: The Phi Kappa Phi Journal, Vol. LXIV, No. 4 (Fall 1984). Copyright (c) The Honor Society of Phi Kappa Phi, 1984. If other permission is required, please indicate to whom we should apply: We have received permission from the National Forum. PERMISSION GRANTED: (Signature and date) United States Information Agency Washington, D.C. 20547 USIA REQUEST FOR REPUBLICATION PERMISSION From: Charles F. Goss/Janet S, Snyder Rights and Permissions Press and Publications Service Mr. John Roberts Associate Counsel to the President Room 106, EOB The White House Washington, DC 20500 December 17, 1984 Material Requested: "The Presidency: Roles and Responsibilities" by Ronald W. Reagan, published in the NATIONAL FORUM, Fall 1984 Proposed Use: Thank you for permission to include this article in a packet on the Bicentiennal of the Constitution for use in our overseas information program. We will reprint the text and make copies available to our offices abroad for distribution and further republication, in English and in translation, by this Agency and possibly in the local press outside the United States. Your courtesy and cooperation are greatly appreciated. Please complete or amend the following and return one copy to USIA Credits and Copyright Notice required: Credit will be given to the author and the following notice carried: Reprinted by permission from National Forum: The Phi Kappa Phi Journal, Vol. LXIV, No. - 4 (Pall 1984). Copyright (c) The Honor Society of Phi Kappa Phi, 1984. If other permission is required, please indicate to whom we should apply: We have received permission from the National Forum. PERMISSION GRANTED: (Signature and date) December 3, 1984 Elaine M. Smoot, Managing Editor National Forum The Honor Society of Phi Kappa Phi Box 16000 Louisiana State University Baton Rouge, LA 70893 THE NEW FEDERALIST Dear Ms. Smoot: PAPERS I write at the suggestion of Dr. Brad Wilson, of the Administrative Assistant's office at the Supreme Court, to request permission to take excerpts from articles in the Fall, 1984 issue of National Forum for The New Francis Federalist Papers. Dani The New Federalist Papers is a project to commemorate the bicentennial of the Constitution is the nation's press. Suzame PRS has received major support from the National Endow- The Wa. ment for the Humanities for this project; since January we have been syndicating six articles a month. Some of of Chicago the best-known and most knowledgable historians, poli- tical scientists, and lawyers have contributed articles Graduate to the series, as well as such public figures as Attorney General William French Smith and Chief Justice Burger. We would like to take brief (800 word) excerpts from some of the articles in your Fall, 1984 issue, which has the Constitution's bicentennial as its theme. We would take no more than one excerpt from each article, and will of course give full acknowledgment to National Forum. We will use any brief form of acknowledgment you prefer. Once we have received your permission, we will contact individual authors to secure their approval, and they will then be allowed to approve final copy before it is syndicated. We will send you copies of any and all articles excerpted from National Forum. PUBLIC RESEARCH SYNDICATED I enclose a brochure which explains the project more 480 Indian Hill Bivd fully. If you have any questions, please do not hesitate Suite Claremont, CA 91711 to call me. (714) 621-5831 Sincerely, tach Burlon5 Jack Barlow Editor JB:zr over ФКФ Forum THE PHI KAPPA PHI JOURNAL Editor Managing Editor STEPHEN W. WHITE ELAINE M. SMOOT January 17, 1985 Mr. Jack Barlow Editor The New Federalist Papers Public Research, Syndicated 480 N. Indian Hill Blvd. Suite 2 Claremont, CA 91711 Dear Mr. Barlow: Thank you for your letter of December 3, 1984. We, hereby, grant permission for the reprinting of 800-word excerpts from any of the articles in the 1984 Fall issue entitled "Toward the Bicentennial of the Constitution." We understand that these excerpts will be printed in The New Federalist Papers and that we will receive copies of the excerpts for our files. Please use the following credit line when reprinting material from this issue. Reprinted by permission from National Forum: The Phi Kappa Phi Journal, Vol. LXIV, No. 4 (Fall 1984) Copyright (c) The Honor Society of Phi Kappa Phi, 1984. Please note that Dr. David Mathews holds the copyright on his article. For your information, we are enclosing a list of addresses for the authors. As you mention in your letter, please contact each author for permission to use his/her material. Also, we did not find a brochure (which was to explain your project) enclosed with your letter of December 3. We would like to have a copy of your brochure for our files. Thank you for your interest in our publication. Please let us know if we can be of further help. Sincerely, Stephen Enclosure: Address List BOX 19420A, EAST TENNESSEE STATE UNIVERSITY, JOHNSON CITY, TN 37614-0002 Phone: 615/929-5347 NEWS RELEASE FOR IMMEDIATE RELEASE December 3, 1984 "Toward the Bicentennial of the Constitution" It is once again time for an American festival time to celebrate what has been described as a work of political genius. The time has come to honor our Constitution on the occasion of its two-hundredth birthday. It was on September 17, 1787, that 39 delegates to the Constitutional Convention in Philadelphia reached agreement on a system of government SO flexible that it has sustained our Republic for almost 200 years. In 1987, we mark the Bicentennial of the writing of the United States Constitution--the celebration of which can begin none too soon. To stimulate interest in this upcoming celebration, National Forum: The Phi Kappa Phi Journal has produced a special issue entitled "Toward the Bicentennial of the Constitution." This 64-page issue, cosponsored by the American Bar Association's Commission on Public Understanding About the Law, is the culmination of a project undertaken by The Honor Society of Phi Kappa Phi in 1982. MORE Contact: National Forum Pamela D. Ripley Box 19420A Editorial Assistant ФКФ East Tennessee State University (615) 929-5347 Johnson City, TN 37614-0002 National Forum, a quarterly publication of The Honor Society of Phi Kappa Phi, one of the oldest and largest interdisciplinary honor societies in the United States, was awarded some $172,000 to produce and distribute this special issue. Mead Data Central made a major contribution to the project. Additional support was provided by: The Brown Foundation, Inc., The General Electric Foundation, The George Gund Foundation, the Kettering Foundation, The Mead Corporation Foundation, The Pfizer Foundation, and Phi Kappa Phi. Guest edited by Dr. Mark W. Cannon, administrative assistant to the chief justice of the United States, this special symposium issue features 17 articles by a distinguished group of authors including prominent scholars and government officials. The issue focuses on three areas: The American Constitution in History; Perspectives on the Three Branches; and Constitutional Issues and Contemporary America. The contributing authors are: William J. Bennett, Walter Berns, Albert P. Blaustein, Warren E. Burger, Mark W. Cannon, 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., Don K. Price, Ronald W. Reagan, and Gordon S. Wood. (For a sample of what some of these distinguished authors have to say, see the enclosed excerpts.) MORE ФКФ Forum THE PHI KAPPA PHI JOURNAL Editor Managing Editor STEPHEN W. WHITE ELAINE M. SMOOT MEMORANDUM TO: Bicentennial Issue Authors FROM: Stephen W. White, Editor swwhile SUBJECT: News Release on "Toward the Bicentennial of the Constitution" DATE: December 20, 1984 For your information please find enclosed a news release and a sup- plement that were recently mailed from the offices of National Forum to news media throughout the nation. More than 750 news release packages and Bicentennial journals were distributed. Thank you again for your contribution to this project. BOX 19420A, EAST TENNESSEE STATE UNIVERSITY, JOHNSON CITY, TN 37614-0002 Phone: 615/929-5347 Over one-half million copies of this issue will be distributed to lawyers, educators, American and foreign government officials, community leaders, other civic-minded individuals, and libraries likely to influence the planning of Bicentennial programs. In addition to the membership of Phi Kappa Phi, some recipients of the special issue include members of the following organizations: American Bar Association, American Political Science Association, American Historical Association, Project '87, National Council for the Social Studies, United States Information Agency, Freedom's Foundation at Valley Forge, Center for Civic Education, and Presidential Classroom for Young Americans. -30- NEWS RELEASE FOR IMMEDIATE RELEASE December 3, 1984 SUPPLEMENT: The guest editor of National Forum's special issue "Toward the Bicentennial of the Constitution" is Mark W. Cannon. Dr. Cannon is the first person to hold the position of administrative assistant to the chief justice of the United States, an office he has occupied since 1972 when Congress created the position. Dr. Cannon was uniquely qualified to select for consideration the variety of perspectives on our constitutional heritage represented in the Bicentennial issue. He has extensive experience in teaching, research, and writing and has worked with all three branches of the federal government as well as with state and local governments. Dr. Cannon's exceptional background includes travel in more than 60 countries, only a tiny minority of which have constitutions that predate the Second World War. "My travels, together with my interest in political history and comparative government, have convinced me of the uniqueness, the absolute novelty, of the 200-year American commitment to self-government under a single Constitution," Dr. Cannon says. In his introductory essay in "Toward the Bicentennial of the Constitution," Dr. Cannon addresses the question of why Americans should celebrate the Constitution. As he puts it, "Why celebrate a yellowed, MORE Contact: National Forum Pamela D. Ripley Box 19420A Editorial Assistant East Tennessee State University ФКФ (615) 929-5347 Johnson City, TN 37614-0002 200-year-old piece of parchment with faded print? Why bother?" His answer: "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." The significance of this last point is driven home by Dr. Cannon's contrast of the ongoing vitality of the American Constitution in protecting personal liberty and fostering individual creativity with the dismal record of the world's repressive totalitarian regimes. Dr. Cannon discusses the work of the Framers of the Constitution of 1787 and explains why the Constitution continues to occupy the elevated station it does in American life. He argues, however, that the great success constitutional democracy has enjoyed in this country is not self-perpetuating. He writes: "Today, many Americans are appallingly ignorant of the workings of law and government. They are unfamiliar with the Constitution and the rights, duties, and powers it confers." In a democracy such as ours, there is a need "for civic education, wisdom, and virtue; for the willingness to sacrifice immediate personal gain for greater long-term personal and societal benefit; for commitment to our constitutional system of ordered liberty which must at times assume heroic proportions; for the ingenuity to solve complicated new problems, as we have done SO many times in the past." In light of these needs, Dr. Cannon calls on Americans to seize the "appropriate historical moment" offered by the Bicentennial of the Constitution to engage in earnest reflection on the role played by the Constitution in creating and preserving a way of life now virtually taken for granted and on the role it should play in addressing the problems of the future. -30-

nara / coll_rr-0113 / doc

JGR/Article on the Presidency, National Forum (5 of 7)

ID: 118567578
Type: document

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url	https://catalog.archives.gov/id/118567578
naId	118567578
coverageEndDate	logicalDate 1986-12-31 year 1986
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