Reading page 1-27
Please answer the following questions in the form of 2-3 full sentences per question:
What was wrong with the Stamp Act according to the American colonists?
List three ideas important to the British Declaration of Rights. Why would the American colonists think the document was relevant to their situation?
According to the Declaration of Independence, who or what was to blame for the American rebellion against the British Empire?
BACKGROUND TO THE UNITED STATES CONSTITUTION
FROM: Irwin Ungar, These United States (Boston, 1982), vol. I, 111-112, 131-151. Modified.
The great nineteenth-century prime minister William Gladsome once described the American federal Constitution as “the most remarkable work—in modern times to have been produced by the human intellect at a single stroke—in its application to political affairs.” Those who have lived with it since its adoption have not always been so certain of its perfection, for they have amended it twenty-seven times. But few Americans would deny that this unique framework of government has served the American people immensely well in peace and war, in prosperity and depression.
Contemporaries, of course, could not have known that the Constitution would work so effectively, yet in 1787 they called a convention to draw up a new political framework for the United States. Why was this necessary? Six years earlier, the states had ratified the Articles of Confederation. …
The Articles were a clear improvement over the old arrangements. Most important, they established a formal union of the American states, which had not existed before. They gave legal standing to powers that the Continental Congress had exercised earlier. The Confederation Congress could conduct war and foreign affairs, make commercial treaties, and negotiate with the Indians. It could borrow and coin money and issue bills of credit. It now also had the authority to manage public lands in the West.
Yet many imperfections remained. The new government consisted of only a legislature; it had no separate executive or judicial divisions. And not all of the new Congress’s powers were exclusive. The states could continue to deal directly with foreign governments and engage in war with Congress’s consent. And even without it, they could borrow, maintain mints, and issue bills of credit. The states also had sole right to legislate in matters concerning debts, contracts, and family affairs. Most important of all, they alone could tax their citizens. And if experience showed that changes in the Articles were desirable, they would be hard to make, since amendments required the consent of every state.
Imperfect though they were, the Articles of Confederation were a move toward American national unity. Until the middle of the eighteenth century, the notion of a common national identity had been weak in America. Colonists often had closer contacts with residents of England or the West Indies than with their fellow “continentals.” After 1763 their sense of common interests and needs had grown, and after 1775 the Revolution reinforced continental ties and sentiments. Many young men serving in the revolutionary forces saw more of America in a few years than their parents had in a lifetime. In George Washington, Thomas Jefferson, John Adams, and Benjamin Franklin they found national heroes to praise and admire. But the Continental Congress had been a makeshift, a purely voluntary association entered into to deal with the imperial crisis. Now, with the Articles of Confederation, for the first time there was a permanent American government, one that would speak for the citizens of the thirteen states.
The feeling of a common nationality was still incomplete, however, and in 1781 Americans continued to talk of Virginia, New York, or Massachusetts as “their country.” The weaknesses of the Articles reflected Americans’ limited national allegiance. But the Articles were an important milestone in a steady development that would not be completed until 1865.
Although the Articles were by no means perfect, they established the sort of central government most Americans wanted. Indeed, to the end of the Confederation period, the Articles had strong and loyal supporters. Obviously, many Americans must have had a change of heart. Who were these people, and what caused them to change their minds? …
AMERICA IN THE 1780s
Peace brought economic troubles to American farmers. During the war years armies had swept across the landscape, destroying fences and barns, burning crops and farmhouses. On the frontier Indian raids had pushed back the line of settled farming. In the Carolinas the dikes that controlled the tidal streams in the rice country had been damaged by straggling troops and neglect. In Virginia British removal of slaves and the flight of Loyalist slaves had depleted the labor force on the plantations.
In time the physical damage and the labor disruption were repaired, but political changes continued to cause serious difficulties for American agriculture. The end of the imperial connection had unforeseen consequences for farmers. The British government removed the bounty that it had paid indigo planters before 1776, and indigo virtually disappeared from the Carolina coast. Still more damaging was British commercial retaliation. Before independence American agricultural commodities had found a ready market in the British West Indies. But that had been when Americans were subjects of King George. Now that they were foreigners, they no longer could expect special rights in British markets.
Creditors, too, found the Confederation period a trying time. Unable to impose taxes, Congress ceased paying the interest and principal of the national debt in 1782. Thereafter, the value of government securities—Congress’s promises to pay back money it had borrowed during the Revolution—dropped sharply. Speculators willing to take the chance that Congress might eventually pay off its debts fully bought up government bonds at a fraction of their face value and soon held a large part of the national debt The original holders of the securities thus got something for their money, but many felt cheated. Many state creditors felt the same way. After the war some states taxed themselves heavily and paid their debts. Others did not, and their depreciated securities, like Congress’s, soon passed into the hands of speculators.
Nor were private creditors much better off. The postwar years brought a sharp drop in prices. Imports, as we have just seen, had boomed briefly after 1783 as American consumers, starved for British goods during the war, had snapped up every cargo from Bristol, London, and Liverpool. To pay for this merchandise merchants and customers spent the gold and silver coin left behind by the French army or lent by Dutch bankers. But there was a limit to the available cash, and the country soon reverted to its normal condition of currency famine.
When money is scarce, it becomes more valuable relative to the things it buys. Thus prices for domestic goods now fell sharply and painfully. This deflation hurt farmers and artisans, who produced goods for sale. It also hurt debtors, who found it hard to get money to pay their creditors. To relieve their distress, debtors demanded paper money, and in several states the legislatures passed measures to oblige them.
In most states the paper currency caused few problems. In New York and Pennsylvania, for example, paper money retained its purchasing power because those states printed only moderate amounts and did not make it “legal tender.” That is, creditors and sellers did not have to accept it if they did not want to. New York and Pennsylvania businessmen actually supported their state’s paper money issues to help end the currency famine and make business easier to conduct.
The situation was very different in Rhode Island. In that turbulent state the debtors were in complete control and seemed determined to cheat their creditors. In 1786 the legislature, acting under debtor pressure, issued £100,000 of legal tender paper money and declared that everyone had to accept it at face value even if it lost purchasing power. A creditor who resisted was breaking the law, and the debt would be canceled. Soon debtors were pursuing their creditors and paying them without mercy. Creditors complained bitterly, but to no avail.
The evidence thus confirms the economic difficulties of the Confederation period. And the distress was widespread, not confined Just to creditors. Merchants, farmers, and craftspeople, as well as creditors, had good reason to complain in these early postwar years. And they could usually blame the feeble national government for their plight. Why had prices dropped? Why had the British refused to make trade concessions to Americans? Why could Spain close the port of New Orleans? Why were American craftspeople not protected against cheap foreign goods? Why could Rhode Island debtors arbitrarily scale down their debts? Why must national creditors sell their government securities to speculators at a fraction of their face value? The fault, many Americans would soon come to believe, was the weak government of the Articles of Confederation. Something had to be done to strengthen it if the country was to prosper and fulfill its economic promise. …
Besides economics, another important source of political change in this period was nationalism. This is the feeling that individual happiness, interests, gains, and losses are linked with those of the nation as a whole; it is the emotional bond that joins citizens of a country to one another. It is a powerful force that can overwhelm individual and group interest and inspire sacrifice of life itself.
The active nationalists of the period were mostly young men who had served in the Continental army or Congress. They had fought and worked for the United States. They had seen various parts of the country, and they had met men like themselves from every region and had shared with them their hopes for a new national future. Their experiences had broadened their perspectives into a “continental” view and had made them aware of the inadequacies of localism. …
To the growing body of nationalists the Confederation’s political feebleness seemed humiliating. Everywhere they looked they found distressing signs of their country’s plight. In June 1783 Congress had made itself ridiculous by fleeing Philadelphia in fear of attack by unpaid and mutinous Continental troops. During the next months it wandered from town to town trying to find a decent resting place.
Congress disappointed the nationalists in other ways as well. In the six weeks following ratification of the 1783 peace treaty, so few members attended sessions that it was difficult to gather a quorum to do business. In mid-February 1784 James Tilton of Delaware wrote a fellow member that “the situation of Congress is truly alarming; the most important business pending and not states enough to take it up.” Another member declared: “The Congress is abused, laughed at and cursed in every company.” It is no wonder that sincere patriots feared for their country’s future. …
Even more disturbing to patriotic nationalists than the domestic weakness of the Confederation was its feebleness in foreign affairs. Almost everywhere the United States was treated with contempt. France remained friendly and honored the trade privileges specified by the treaty of 1778; but Spain and Britain were antagonistic, and even minor powers felt they could stamp on American interests. As Jefferson, serving as American minister in Paris, wrote in 1784: “All respect for our government is annihilated on this side of the water from an idea of its want of energy.” …
No matter how content some Americans were with the existing political system, the overall failure of the Confederation government humiliated American nationalists and made them deeply dissatisfied. By 1785 it had become obvious to many citizens that Congress was little more than a shadow, unable to protect American interests abroad or to solve major problems at home. Was it for this, patriots asked, that Americans had fought and died?
THE CONSTITUTIONAL CONVENTION
The Confederation government was not without accomplishments. But they were far outweighed by its failures. By 1785 it seemed clear to many Americans, not just a small elite, that the nation needed a more powerful and effective central government to serve its interests and express its patriotic aspirations.
The road to the Constitutional Convention was roundabout, however. The process of revising or replacing the Articles began in 1785 when Maryland and Virginia signed an agreement over navigation on the Potomac River and Chesapeake Bay. The success of this pact induced Maryland to call for a broader arrangement that would include Pennsylvania and Delaware and cover import duties, currency, and other commercial matters. Nationalists in the Virginia legislature quickly proposed that all states meet in September 1786 at Annapolis to consider common commercial problems. Only five states attended the conference, but the nationalists—led by Alexander Hamilton of New York, James Madison of Virginia, and John Dickinson of Delaware—took advantage of the situation. Declaring that a majority was not present, they convinced the delegates to petition Congress for a full-scale convention to meet at Philadelphia in May 1787 to discuss economic problems and fundamental political changes.
By this time, Congress’s long decline had brought it close to paralysis. The Annapolis convention’s resolution was referred to a committee of three, which submitted it to another committee of thirteen that the legislators never got around to appointing. Congress, it seemed, intended to let the proposal die.
Then events in Massachusetts, a center of political turbulence since the 1760s, jolted the country and Congress into action. Massachusetts was one of those states that had obligated itself to pay its war debt. This commitment required substantial amounts of revenue, and the Bay State legislature imposed on its citizens the heaviest taxes in New England. To farmers already suffering from low crop prices, the taxes were a disaster. Debts and bankruptcies soon mounted in the western counties, and many farmers fell behind in their tax payments. As if this were not enough, Massachusetts law required that the pettiest commercial transactions be recorded by a court, with high fees paid to lawyers and court officials. The large volume of legal business resulting from hard times thus added to the heavy load imposed on citizens.
By the summer of 1786 discontent among farmers in the western part of the state had reached the flash point. In late August they convened in Worcester and condemned the taxes and heavy legal fees. Shortly afterward, an armed mob of 1,500 men, eager to end foreclosures for tax delinquency and debt default stopped the convening of the Hampshire County Court. In early September three more county courts were kept from sitting by groups of angry men.
Although the Massachusetts legislature made some effort to ease the burden of debtors, disaffected westerners began to arm and drill as if they expected to take on King George’s redcoats once more. Led by Daniel Shays, a former Continental army officer, they formed a committee to resist what they judged to be intolerable conditions. Meanwhile, in the eastern part of the state, people had begun to panic. In Boston, the governor decided to raise a military force to suppress the disorders. Rather than impose new taxes to support this small array, he appealed to the city’s rich men, who, in their fright, promptly came up with $125,000. In January 1787 a rebel force of 1,200 met the smaller group of state militia at Springfield. The state troops fired a single artillery volley, and the rebels fled in panic. The uprising was over by spring.
Shays’s Rebellion amounted to very little, yet it frightened many people. One citizen insisted that if the rebels had won, there would have been “an abolition of all public and private debts” followed by “an equal distribution of property.” The rebellion also dismayed the country’s nationalists. Washington wrote that he was “mortified beyond expression” by disorders. For the country “to be more exposed in the eyes of the world and more contemptible” than it already was seemed “hardly possible.” Congress at last took heed of the restless mood of many citizens, and on February 21 it voted to ask the states to send delegates to a proposed constitutional convention at Philadelphia.
The meeting, at Independence Hall on May 14, 1787, was an assembly of giants, including George Washington, Benjamin Franklin, James Madison, and Alexander Hamilton. … Seldom has any group taken on so momentous a task. Civilized governments have invariably been the products of a gradual evolution of tradition, experience, and historical accident. The idea of a written frame of government, of a structure of fundamental law put down in precise words at one time, is an American invention. The practice began with the making of state constitutions after 1775. Its finest expression is the federal Constitution of 1787.
The “Founding Fathers” did, of course, draw on the traditions of the colonies and Great Britain; the English experience is embedded in every legal and governmental institution of the United States. They also relied on their understanding of the ancient world, especially Rome, and on the views of the great political and legal thinkers of their own time. But in the end they were guided primarily by their own practical experience of government.
A number of the men at Philadelphia owned substantial amounts of unpaid Continental and state debt certificates. But although most were rich men, their wealth was largely in the form of land. A more important bond among the delegates than their status as creditors was the nationalism, or continentalism. The period from 1781 to 1787, they would have agreed, was indeed critical: America had been treated with contempt abroad and mob rule had threatened at home. There were some defenders of states’ rights at Philadelphia, but most were men who believed that the Articles of Confederation had failed as an instrument of government and that Americans needed a stronger central authority.
Few of the delegates, however, wished to strengthen the government at the expense of freedom. The goal of the majority was balance, an end much harder to achieve. They wished to establish a “mixed” government, combining popular and elitist elements that would protect private property. They intended to construct a strong central government, but one that would preserve local autonomy and local rights. In a nation of continental proportions, the diversity of interests, opinions, and philosophies made the task formidable. During the deliberations, small states would clash with large states, slave states with free states, commercial interests with agrarian interests, democrats with aristocrats, champions of local rights with nationalists. In the end, compromise would be a necessity.
After some preliminary skirmishing over procedural rules, the convention began its real work with a proposal that has come to be known as the Virginia Plan. It advocated, not merely a revision of the Articles of Confederation, but a completely new government, with separate legislative, executive, and Judicial departments. Congress would have two houses, and the states would be represented in each in proportion to population. In each house the elected members would vote as individuals, not as part of a single state unit as they did under the Articles. They would, in effect, represent their constituents, not their states. The legislature would choose the persons to fill positions in the other branches of government.
The Virginia proposal emphasized the central government as opposed to the states. Randolph hoped to establish a “strong consolidated union, in which the idea of states would be nearly annihilated.” The Articles had created a league of virtually independent states; the new plan would confer broad powers on the central government, which would “legislate in all cases to which the separate States are incompetent”—that is, in every area where it chose to go. But the Virginia proposal did not spell out the new government’s powers.
The Virginia Plan was countered by the New Jersey Plan, which recommended that the Articles be revised, not replaced. The new government was to be a “federal,” not a truly centralized one; that is, there would be a central government, but the states would retain independent authority in some spheres. The plan endorsed the one-house legislature of the Articles, in which each state was represented equally. States would continue to vote as units in Congress regardless of wealth or population, so that the states, rather than the people, would be represented in the new government. But the New Jersey Plan did improve on the Articles by granting the national government the power to tax and regulate foreign and interstate commerce. It made federal laws and treaties superior to all state laws, and that, too, was an advance.
It is easy to see that the New Jersey Plan would benefit states with small populations more than the Virginia Plan. If the New Jersey Plan’s arrangement was adopted, the less populous states would have representation in Congress equal to that of the more populous ones. If the other prevailed, their voices would be drowned out by those of their larger neighbors. For this reason it is often said that the two plans represented a conflict between large and small states. But the disagreement was just as much between the strong centralists and their more locally oriented colleagues.
The two proposals became the basis for debate, and both were modified in the discussions. On the whole, the centralizers came out ahead. The new government would have greatly enlarged powers, but they would be specified and not left to Congress to decide. It would also be a true central government. Congress would represent the citizens of the United States, not the states. Members of Congress would therefore vote as individuals, and not merely help cast a state vote. On the other issues of representation, a compromise was adopted. In one house, the Senate, each state would have equal representation regardless of population; in the other, the House of Representatives, population would determine the size of state delegations.
Now members raised the issue of what constituted “population.” Were slaves only property, or were they people? If the former, they might, Like other forms of property, be the basis for levying taxes but could not be considered in calculating a state’s representation in the lower house of Congress. If they were people, they should be counted for determining representation. However, because slaves were not free, and could not vote, treating them as people would give the southern states a voice in Congress disproportionate to the actual number of voters. Each voter in the South, where slaves were numerous, in effect would have more power than each voter in the North, where they were few. Northerners naturally objected to such a scheme. Southerners, noting that their wealth in slaves would force them to pay a heavy tax bill, insisted on some political compensation for the burden they would bear.
The issue was very sensitive. It touched on the continued existence and prosperity of slavery in the South. And slavery, the South’s “peculiar”—that is, special or unique—institution, was entangled in every aspect of southern life. True, ever since the Revolution had proclaimed that “all men are created equal,” the supporters of slavery had been on the defensive. But slaves still tilled the South’s fields, built its fences, and performed its household chores. Though slavery was fast disappearing In the North, only a handful of enlightened southerners were willing to contemplate its total abolition.
The men at Philadelphia would deal with slavery at other points; this time they elected to compromise. Taxes and representation in the lower house of Congress would be based on “the whole number of free Persons,” excluding Indians but including indentured servants and “three-fifths of all other Persons.” Thus, with the “three-fifths compromise,” America’s Founding Fathers managed the neat trick of simultaneously treating a slave as property and as three-fifths of a human being.
Not only did the Founding Fathers compromise on conflicting interests, they also compromised on conflicting principles. As we have noted, the delegates desired both the representative principle on the one hand, and order and rule by the “best men,” a kind of elitism, on the other. Some leaned strongly to one side, some to the other; most were in the middle.
The give-and-take among these approaches resulted in several important features of the Constitution, particularly the principle of separation of powers. Borrowing from the French philosopher, Charles Louis de Montesquieu, the delegates adopted the idea that each branch of government—executive, legislative, and judicial—must exercise distinct powers and be selected in a distinct way. This separation would ensure the independence of each branch. In addition, the Founding Fathers adopted the idea that each branch must be able to “check and balance” the others. By such an arrangement the greatest freedom would be ensured, for if one branch grew too powerful and sought to dominate the others, it could be stopped.
Checks and balances were a defense of freedom in one way, but they could also be a brake on excessive freedom—say of a Daniel Shays. During the years when the states were writing their first constitutions, extreme democrats generally favored weak governors and strong legislatures. At Philadelphia the principle of checks and balances seemed like a fine way to accomplish both things at once: check “the mob” and also check the executive.
To this end, the chief executive was to have a veto over acts of Congress, the popular part of government. But the president was not to be all-powerful. His veto could be overridden by a two-thirds vote of Congress. The chief executive could make treaties with foreign powers, but they would have to be confirmed by a two-thirds vote of the Senate. He was to be commander in chief of the army and navy, but only Congress could declare war. Finally, he could appoint a host of officials, but these appointments would have to be confirmed by the Senate. As a final check on the president—and his appointees—the House of Representatives could bring impeachment charges against federal officials. If impeached officials were then found guilty of “high crimes and misdemeanors” by the Senate, they would be removed from office.
Standing guard against the excesses and abuses of Congress and the president was to be the third branch, the federal judiciary, capped by a Supreme Court. Although it is nowhere stated in the Constitution, legal scholars believe that the delegates at Philadelphia assumed the right of the federal courts to declare acts of Congress contrary to the Constitution and hence invalid. To free the judges of political influence, they gave them lifetime tenure and declared that during their terms of office. Congress could not reduce their salaries.
Checks and balances offered one way to combine strong and stable government with a popular voice. The mixture of democratic and aristocratic methods of choosing the officers of each branch was another. The president would be selected not by the direct vote of the people but by an electoral college chosen by the states. The number of electors from each state would be equal to the number of representatives and senators it sent to Congress. State law would determine how they would be chosen, but it was assumed that they would not be elected directly by the people. Nor was the Senate, the upper house of Congress, conceived of as a stronghold of democracy. Senators would be selected by their state legislatures. To limit popular control of Congress further, senators were to have long terms of six years; only one-third would be seeking re-election in each congressional election held every two years. Finally, the federal judiciary, including the Supreme Court, was to be appointed, and thus far removed from the popular will. To temper these aristocratic features, the House of Representatives would be directly controlled by “the people.” Representatives would be elected for two-year terms by the same liberal rules that governed the selection of members of the lower houses of the state legislatures.
Besides establishing a new structure, the Constitution greatly enlarged the powers and scope of the national government. The new government as we have seen, would impose its authority on the people directly, not through the states. It would also fuse the nation into a single legal whole. Under the new charter each state was required to give “full faith and credit” to all laws and court decisions of the others and to surrender to others all violators of the law who fled across state lines. The new government could also do many specific things its predecessor could not do. It could impose and collect taxes from citizens, though by the Constitution’s original terms these taxes had to be proportionate to each state’s population. It could control and regulate foreign and interstate commerce, although at the urging of the southern states that shipped large amounts of rice and tobacco abroad. It was forbidden to tax exports. The new government had sole control over the coinage of money and could establish a postal system, build post roads, and pass laws of naturalization. The power to establish a system of uniform weights and measures and a uniform bankruptcy law also belonged to the national government. Finally, the Constitution declared that the new government could “make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” This provision, which is known as the elastic clause, later became the justification for greatly expanded federal authority. In sum, a strengthened national government was to exercise broad authority over economic and political affairs, and over a single economic and legal unit.
Still, the Constitution created not a unitary but a federal government; that is, it left the states with independent authority in some spheres. Crime and breaches of the peace were in the states’ jurisdiction, except when a state legislature or governor specifically requested federal help to put down local violence. Social relations, including marriage, divorce, and education, were also left to the states.
Although slavery was considered a “domestic” institution like the family, it could not be left solely to the states’ jurisdiction. Conflict over representation had resulted in the three-fifths compromise, and the problems of slaves escaping to free states as well as the slave trade itself also had to be considered. After much debate, the Philadelphia delegates agreed that Congress could not forbid the foreign slave trade until 1808, but thereafter it might do so if a majority wished. Congress could, however, pass laws to deal with runaway slaves who crossed state lines and guarantee slaveholders the right to recover such fugitives regardless of local antislavery laws.
All through the summer and into September, the delegates debated every issue. The discussion, like the weather, was often heated. To quiet ruffled tempers and encourage greater good will among the delegates, Franklin at one point proposed that a chaplain be invited to open each morning session with a prayer. Washington, the presiding officer, also worked to maintain peace; and although he said little, his dignity and calm demeanor helped to keep the delegates’ differences from getting out of hand.
Nothing could prevent disagreement. A number of the delegates considered the completed draft of the Constitution far too centralizing and denounced the work of the convention. Some went so far as to quit Philadelphia in protest. On the other hand, the most extreme centralizers believed the proposed constitution did not go far enough. Alexander Hamilton wanted the states abolished in favor of a strong, unitary government. The views that ultimately prevailed were those of James Madison, who succeeded in mobilizing the majority around the compromise proposals.
On September 8 the convention sent the completed draft to the Committee of Style and Arrangement This group of five polished the convention’s paragraphs and rearranged them in logical order. One of its members wrote a preamble that described the promotion of “the general welfare” as one of the purposes of the new framework of government. On September 17, 1787, each of the state delegations voted its approval, and the convention adjourned.
Now the Constitution’s friends faced the problem of securing its adoption, and it seemed likely that the battle would prove difficult The Confederation Congress had authorized the Philadelphia convention only to “revise” and “amend” the Articles of Confederation—not to propose a new form of government. Would Congress reject the convention’s work? On September 29 the new Constitution was presented to Congress. That body was almost dead and had no heart for resistance. After some minor debate it recommended the plan to the separate states for adoption by convention. The more difficult task was winning ratification by the states. The opposition fought hard against it. Certain groups of debtors, aware that state-issued paper money would be illegal under the new government, were naturally opposed to it. So were taxpayers in states that had paid their debts and those who considered strengthened national government a retreat from “true republicanism.” Finally, there were the cautious people, inclined to stick to the ills they had than fly to others they knew not of.
At one time scholars emphasized the formidable opposition to the Constitution and described the battle to get it adopted as a fierce struggle. In part this view projects back into the adoption period attitudes that gelled in the years immediately following. It also reflects the fact that in a few states the adoption issue was indeed hard-fought. Because it would have been difficult to achieve a successful Union without them, the debates that took place in these states were important. Still, it is clear that the “federalists”—those who favored the new federal government—won with remarkable ease.
The delegates at Philadelphia had decided that the new government would go into operation when nine states had ratified the Constitution. Delaware, Pennsylvania, and New Jersey were won over almost immediately, the first and third by unanimous votes. Early in 1788 Georgia’s convention also ratified unanimously. Connecticut soon followed with a heavy federalist majority. In Massachusetts the friends of the Constitution encountered their first serious opposition. By early estimates the state convention had a solid anti-federalist majority. Among the initial opponents were the influential Sam Adams and John Hancock, for years leaders of the state’s popular party. If these men could be converted, enough delegates would follow them to carry ratification. Fortunately for the Constitution, Adams was induced to change his mind by a mass meeting of Constitution supporters staged by Paul Revere. Convinced that the rally expressed the views of the state’s common folk, Adams agreed to change his position. Hancock, now the state’s governor, was coaxed and flattered by federalists into believing he was in line for high federal office under the new Constitution.
One of the federalists’ problems in Massachusetts and a number of other states was that the Constitution lacked a bill of rights to protect citizens against federal tyranny and guarantee civil liberties. Some who complained of this lack were interested merely in delaying or defeating adoption. But others, such as Hancock, were sincere in their concern. When Hancock agreed to endorse ratification, he proposed simultaneously that nine amendments be added to protect the citizen against federal tyranny. With this request tacked on to its motion, the Massachusetts convention voted 187 to 168 for adoption.
In March the federalists suffered their first actual setback when maverick Rhode Island overwhelmingly rejected the Constitution by a popular vote. The state, as we saw, had been the center of debtor-imposed paper money schemes and had not sent a delegation to Philadelphia. During the ratification battle the federalists did not stand a chance, and they boycotted the vote. The results were as expected: the Constitution received only 10 percent of the votes cast.
Rhode Island’s refection did not stop the federalists’ forward momentum, however. In April and May Maryland and South Carolina joined the parade of adoptions and did so by large majorities. Then, by a close vote on June 21, New Hampshire became the ninth state to ratify the Constitution. Under the rules that the convention had prescribed, the Constitution was now officially in force. But New York and Virginia had not acted. If they voted no, it would be impossible to maintain a workable political system.
Federalist forces in Virginia were strong and well organized. Among them were some of the most prestigious men in the state, including James Madison and John Marshall. Also working in the federalists’ favor was the general assumption that the first president under the Constitution would almost certainly be the state’s greatest son, George Washington. Not yet the “father of his country,” he was nevertheless a commanding figure in the new nation and seemed to embody the finest type of patriotism.
On the anti-federalist side, however, there was an impressive array of talent, too, including Patrick Henry and James Monroe. Henry was the spearhead of the anti-federalist attack. In an impassioned speech to the state convention, he portrayed the new Constitution as dangerous to liberty. Under it the citizen would be abused, insulted, tyrannized. Henry also appealed to localism and the self-love of his listeners. “The Constitution reflects in the most degrading and mortifying manner on the virtue, integrity, and wisdom of the state legislatures,” he declared. It assumed “that the chosen few who go to Congress will have more upright hearts, and more enlightened minds, than those who are members of individual legislatures.” Many in his audience believed it was the finest address of his distinguished career as an orator. In the end, Henry’s eloquence was not enough. The convention voted to ratify with the proviso, once again, that a bill of rights be added to the new frame of government.
The battle now shifted to New York. Without New York the union would be physically split in half; with it the union would be complete in all essentials. For weeks the federalists had been bombarding the state’s newspaper readers with articles written by Hamilton, Madison, and John Jay. These Federalist Papers, explaining, defending, and praising the new Constitution, were brilliant expositions of the federalist position. But they were not only propaganda; they were also pithy analyses by unsentimental men of the way politics was practiced in the real world. Ordinary men were not equipped to govern the country directly, they stated. They did not have the necessary knowledge or understanding. The country would be well ruled only by those who recognized that government was a “complicated science” requiring “abilities and knowledge of a variety of other subjects, to understand it.” Every just and successful government must respect the wishes of ordinary people, but wisdom must temper the decisions of majorities. Majorities were often temporary and more often moved by passion than by mature judgment. In the future, moreover, when inequalities had become greater than at present they were certain to attack property rights. Government must be strong enough to guard against such natural but mistaken leveling tendencies of democracy.
The persuasiveness of the Federalist Papers and Hamilton’s impassioned presentation of the federalist position at the state convention gave the adoption drive a great boost. But the pro-Constitution people had more than eloquence on their side. If New York State did not join the union, New York City might choose to join anyway to avoid losing the lucrative commerce that flowed through it to New Jersey and southern New England. What would the state do then? The argument was convincing, and in the end the logic of circumstances prevailed. On July 26, 1788, the New York convention voted thirty to twenty-seven to adopt the Constitution.
The new union was now secure. Early in 1789 national elections were held for the first time under the Constitution, and federalist candidates won a majority in the new Congress. In January the electoral college voted unanimously for Washington as president and settled on John Adams as his vice-president. Rhode Island and North Carolina were still outside the Union, and their citizens did not participate in the election.
Soon after the elections the new government as promised, adopted the first ten amendments to the Constitution, commonly called the Bill of Rights. The first nine guaranteed the rights of free speech, press, and assembly and forbade the federal government to make any law “respecting the establishment of religion or prohibiting the free exercise thereof.” They affirmed the right of the people “to bear and keep arms,” protected the citizen against “unreasonable searches and seizures,” required jury trials in criminal and major civil cases, and forbade “excessive” bail or fines and “cruel and unusual punishments.” The tenth amendment “reserved” to the states all powers not given the United States by the Constitution.
Note that these amendments placed limits on Congress and the federal government in the area of fundamental civil rights; they did not apply to the state governments. The states had similar restraints in their own constitutions, and at this time it was considered unnecessary to guard the citizen against tyranny by state governments.
With their last objections gone, and fearful of being treated as foreign nations if they did not join the Union, North Carolina and Rhode Island reversed their earlier stands and ratified the Constitution in 1789 and 1790, respectively. The United States was now a nation; it had ceased to be a league of petty states.
THE BRITISH DECLARATION OF RIGHTS (1689)
In seventeenth-century Britain armed conflict arose twice over the issue of sovereignty. Was the king the absolute sovereign of the nation, or did he have to first consult Parliament before engaging in acts such as those involving religion or revenue. After a civil war in the middle of the century, the matter finally was resolved in the “Glorious Revolution” of 1688, when the supposed Catholic king, James II, was driven from the throne and replaced by William of Orange (in the Netherlands) and his wife (and James’s Protestant daughter), Mary. The next year (the same year by the then British dating system, which began years in March), William and Mary agreed to a declaration of rights (later enacted as the Bill of Rights), which set limits on the actions of the king. The declaration reiterated Parliament’s assertion to be the representative of the “people,” even its members were elected only by the elites.
And whereas the said late king James the Second having abdicated the government and the throne being thereby vacant, His Highness the prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the lords spiritual and temporal [bishops and nobility in the House of Lords] and divers principal persons of the commons) cause letters to be written to the lords spiritual and temporal, being Protestants; and other letters to the several counties, cities, universities, boroughs and Cinque ports [ports with special privileges] for the choosing of such persons to represent them, as were of right to be sent to parliament, to meet and sit at Westminster upon the two and twentieth day of January in this year one thousand six hundred eighty and eight, in order to [guarantee] … that their religion, laws and liberties might not again be in danger of being subverted; upon which letters elections having been accordingly made,
And thereupon the said lords spiritual and temporal and commons pursuant to their respective letters and elections being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties, declare:
That the pretended power of suspending of laws or the execution of laws by regal authority without consent of parliament is illegal.
That the pretended power of dispensing with laws or the execution of laws by regal authority as it hath been assumed and exercised of late is illegal.
That the commission for erecting the late court of commissioners for ecclesiastical causes and all other commissions and courts of like nature are illegal and pernicious.
That the levying money for or to the use of the crown by pretence of prerogative without grant of parliament for a longer time or in other manner than the same is or shall be granted is illegal.
That it is the right of the subjects to petition the king and all commitments and prosecutions for such petitioning are illegal.
That the raising or keeping a standing army within the kingdom in time of peace unless it be with consent of parliament is against law.
That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.
That election of members of parliament ought to be free.
That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament.
That excessive bail ought not to be required nor excessive fines imposed nor cruel and unusual punishments inflicted.
That jurors ought to be duly impaneled and returned and jurors which pass upon men in trials for high treason ought to be freeholders.
That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void.
And that for redress of all grievances and for the amending, strengthening and preserving of the laws parliaments ought to be held frequently.
And they do claim, demand and insist upon all and singular the premises as their undoubted rights and liberties and that no declarations, judgments, doings or proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example.
THE MAYFLOWER COMPACT (1620)
The Mayflower Compact was the first governing document of Plymouth Colony in what would become Massachusetts. The group aboard the small, leaky ship was bound for Virginia, but they ended up landing to the north at Plymouth Bay. Knowing they were outside of Virginia and thus having no legal right to be there, all of the adult males aboard signed the Compact and constituted themselves as a “civil Body Politick” under King James I.
IN THE NAME OF GOD, AMEN. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord King James, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid: And by Virtue hereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Officers, from time to time, as shall be thought most meet and convenient for the general Good of the Colony; unto which we promise all due Submission and Obedience. …
RESOLUTIONS OF THE STAMP ACT CONGRESS (1765)
In October 1765 in New York City, representatives from nine of the thirteen North American colonies met to discuss the Stamp Act, which had been recently passed by the British Parliament. The delegates approved a “Declaration of Rights and Grievances,” which argued that only colonial assemblies could properly make laws for the colonies, because the colonies had no representatives in Parliament. The subsequent petition to the king and Parliament secured the signatures of members of only six of the colonies. The Congress was a forum for expressing constitutional concerns and not for declaring independence.
The members of this Congress, sincerely devoted, with the warmest sentiments of affection and duty to His Majesty’s Person and Government, inviolably attached to the present happy establishment of the Protestant succession, and with minds deeply impressed by a sense of the present and impending misfortunes of the British colonies on this continent; having considered as maturely as time will permit the circumstances of the said colonies, esteem it our indispensable duty to make the following declarations of our humble opinion, respecting the most essential rights and liberties of the colonists, and of the grievances under which they labour, by reason of several late Acts of Parliament.
Lastly, That it is the indispensable duty of these colonies, to the best of sovereigns, to the mother country, and to themselves, to endeavour by a loyal and dutiful address to his Majesty, and humble applications to both Houses of Parliament, to procure the repeal of the Act for granting and applying certain stamp duties, of all clauses of any other Acts of Parliament, whereby the jurisdiction of the Admiralty is extended as aforesaid, and of the other late Acts for the restriction of American commerce.
THE DECLARATION OF INDEPENDENCE (July 4, 1776)
On July 4, 1776 the Continental Congress adopted the Declaration, which announced that the thirteen American colonies—which had been at war with Great Britain for over a year—were free and independent states. Thomas Jefferson was the primary author. The document justified the independence of the United States by listing grievances against Britain and by asserting “certain unalienable rights,” including a right of revolution.
The unanimous Declaration of the thirteen united States of America,
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. …
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within. …
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the consent of our legislatures. …
For Quartering large bodies of armed troops among us. …
For cutting off our Trade with all parts of the world.
For imposing Taxes on us without our Consent.
For depriving us, in many cases, of the benefits of Trial by Jury.
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments.
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. …
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. …
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
CONSTITUTION OF PENNSYLVANIA (September 28, 1776)
In 1776 Pennsylvania enacted its first state constitution in direct response to the Declaration of Independence. With the beginning of the revolution the Continental Congress issued two resolutions in May 1776 calling for the colonies to reject British rule and establish governments based on the authority of the people. Revolutionaries in Pennsylvania, led by Benjamin Franklin, held public meetings to elect representatives to a constitutional convention. The framers of the constitution had two goals: to make representatives more responsive to the people, and to allow bad politicians to be removed from office swiftly.
WHEREAS all government ought to be instituted and supported for the security and protection of the community as such, and to enable the individuals who compose it to enjoy their natural rights, and the other blessings which the Author of existence has bestowed upon man; and whenever these great ends of government are not obtained, the people have a right, by common consent to change it, and take such measures as to them may appear necessary to promote their safety and happiness. … AND WHEREAS it is absolutely necessary for the welfare and safety of the inhabitants of said colonies, that they be henceforth free and independent States, and that just, permanent, and proper forms of government exist in every part of them, derived from and founded on the authority of the people only, agreeable to the directions of the honourable American Congress. We, the representatives of the freemen of Pennsylvania, in general convention met, for the express purpose of framing such a government, … ordain, declare, and establish, the following Declaration of Rights and Frame of Government, to be the CONSTITUTION of this commonwealth, and to remain in force therein for ever, unaltered, except in such articles as shall hereafter on experience be found to require improvement, and which shall by the same authority of the people, fairly delegated as this frame of government directs, be amended or improved for the more effectual obtaining and securing the great end and design of all government, herein before mentioned.
A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OR STATE OF PENNSYLVANIA
XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.
XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power. …
XVI. That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.
PLAN OR FRAME OF GOVERNMENT FOR THE COMMONWEALTH OR STATE OF PENNSYLVANIA
SECTION 1. The commonwealth or state of Pennsylvania shall be governed hereafter by an assembly of the representatives of the freemen of the same, and a president and council, in manner and form following-
SECT. 2. The supreme legislative power shall be vested in a house of representatives of the freemen of the commonwealth or state of Pennsylvania.
SECT. 3. The supreme executive power shall be vested in a president and council.
SECT. 4. Courts of justice shall be established in the city of Philadelphia, and in every county of this state. …
SECT. 6. Every freemen of the full age of twenty-one years, having resided in this state for the space of one whole Year next before the day of election for representatives, and paid public taxes during that time, shall enjoy the right of an elector. …
SECT. 25. Trials shall be by jury as heretofore: And it is recommended to the legislature of this state, to provide by law against every corruption or partiality in the choice, return, or appointment of juries. …
SECT. 41. NO public tax, custom or contribution shall be imposed upon, or paid by the people of this state, except by a law for that purpose. …
Passed in Convention the 28th day of September, 1776, and signed by their order. BENJ. FRANKLIN, Prest.
THE ARTICLES OF CONFEDERATION (1777, ratified 1781)
Drafted by the Continental Congress, the Articles were the first constitution of the United States. Fearing that a national government with too much power would deprive individual states of their rights, the Congress gave the states the largest share of power. Under the Articles each of the states retained their “sovereignty, freedom, and independence.” There was no separation of powers, and the weak central government functions were assigned to the Congress, which was composed of representatives from each state.
I The Stile of this Confederacy shall be “The United States of America”.
II Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. …
In determining questions in the United States in Congress assembled, each State shall have one vote. …
VI No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State. …
VIII All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States. …
The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other causes whatever; which authority shall always be exercised in the manner following. …
In Witness whereof we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth day of July in the Year of our Lord One Thousand Seven Hundred and Seventy-Eight, and in the Third Year of the independence of America.
THOMAS JEFFERSON AND JAMES MADISON ON RELIGIOUS FREEDOM (1777-1785)
Two of the most famous founding fathers, Thomas Jefferson, primary author of the Declaration of Independence, and James Madison, primary author of the U.S. Constitution, were strong supporters of religious freedom and the separation of church and state. In 1777, Jefferson wrote a draft for a bill establishing religious freedom for the state of Virginia. He and Madison promoted the bill for years before it was finally passed by the Virginia legislature in 1786. The resulting law disestablished the Anglican Church as the officially recognized state religion. Jefferson’s pride in this measure can be seen in the epitaph he wrote for his gravestone: “Here was buried Thomas Jefferson, Author of the Declaration of Independence, Of the Statute of Virginia for Religious Freedom, And Father of the University of Virginia.” In 1785 Madison wrote the Memorial and Remonstrance against Religious Assessments to oppose a general assessment, or statewide tax, that would support the Christian ministers in the state of Virginia. These two works are viewed as precursors to the religion clauses of the U.S. Constitution.
Thomas Jefferson, Draft for a Bill for Establishing Religious Freedom (1777)
Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds; that Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint; that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do, but to extend it by its influence on reason alone; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time; … that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right; that it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it; … that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy …
We the General Assembly of Virginia do enact that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities. …
James Madison, Memorial and Remonstrance against Religious Assessments (1785)
To the Honorable the General Assembly of the Commonwealth of Virginia
A Memorial and Remonstrance
We the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled “A Bill establishing a provision for Teachers of the Christian Religion,” and conceiving that the same if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill,
THE NORTHWEST ORDINANCE (1787)
In July 1787, while a new constitution for the United States was still being drafted, the Second Continental Congress of the Confederation adopted the Northwest Ordinance of 1787, which is considered one of its most successful endeavors. The Ordinance put the world on notice that the land north of the Ohio River and east of the Mississippi would be settled and would eventually become part of the United States. The Ordinance specified four main things. First, it authorized a provisional government for the vast territory northwest of the Ohio River that the United States had obtained at the end of the Revolutionary War. Second, it provided a method for making new governments out of that territory. Third, it guaranteed a bill of rights to inhabitants of the new territories and prohibited slavery in them. Finally, it outlined a way to survey the new lands so they could be sold to settlers. Increasing numbers of settlers and land speculators, such as the Ohio Land Company, were attracted to what are now the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin. Above all, the Northwest Ordinance accelerated the westward expansion of the United States.
Be it ordained by the United States in Congress assembled, That the said territory, for the purposes of temporary government, be one district, subject, however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient. …
Be it ordained by the authority aforesaid, That there shall be appointed from time to time by Congress, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress. …
There shall be appointed from time to time by Congress, a secretary, whose commission shall continue in force for four years unless sooner revoked. … It shall be his duty to keep and preserve the acts and laws passed by the legislature, and the public records of the district, and the proceedings of the governor in his executive department, and transmit authentic copies of such acts and proceedings, every six months, to the Secretary of Congress: There shall also be appointed a court to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction, and reside in the district. …
The governor and judges, or a majority of them, shall adopt and publish in the district such laws of the original States, criminal and civil, as may be necessary and best suited to the circumstances of the district, and report them to Congress from time to time: which laws shall be in force in the district until the organization of the General Assembly therein, unless disapproved of by Congress; but afterwards the Legislature shall have authority to alter them as they shall think fit.
The governor, for the time being, shall be commander in chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress. …
So soon as there shall be five thousand free male inhabitants of full age in the district, upon giving proof thereof to the governor, they shall receive authority, with time and place, to elect a representative from their counties or townships to represent them in the general assembly. …
It is hereby ordained and declared by the authority aforesaid, That the following articles shall be considered as articles of compact between the original States and the people and States in the said territory and forever remain unalterable, unless by common consent, to wit:
Art. 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.
Art. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed. …
Art. 5. There shall be formed in the said territory, not less than three nor more than five States. … And, whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States in all respects whatever, and shall be at liberty to form a permanent constitution and State government: Provided, the constitution and government so to be formed, shall be republican, and in conformity to the principles contained in these articles; and, so far as it can be consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free inhabitants in the State than sixty thousand.
Art. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.
Be it ordained by the authority aforesaid, That the resolutions of the 23rd of April, 1784, relative to the subject of this ordinance, be, and the same are hereby repealed and declared null and void.
CONSTITUTION OF THE UNITED STATES OF AMERICA
(framed in 1787, ratified in 1788, established in 1789)
After Congress agreed to the Philadelphia convention, 1787 a total of 55 delegates (representing every state except Rhode Island) assembled in May at Independence Hall. The convention closed its sessions to the public and press to give themselves freedom to debate and compromise. The final document that was approved on September 17, 1787 was a complete departure from the principles of the Articles. It was formally ratified by the ninth state on June 21, 1788, and by July 26, the two largest states, Virginia and New York, had also voted for ratification with the provision that the document be amended to include a list of basic freedoms (limitations on the new stronger national government). In 1789, the new government was established with George Washington as president and twelve amendments were proposed. Ten of these were ratified in 1791 and later became known as the Bill of Rights. Over the following 200 years the document was further amended seventeen times.
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.
Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.
No person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.
Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years and excluding Indians not taxed, three-fifths of all other persons. [Italicized clause modified by Section 2 of Amendment XIV] The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. [Italicized clause was a temporary provision no longer in effect.]
When vacancies happen in the representation from any State, the Executive authority thereof shall issue writs of election to fill such vacancies. The House of Representatives shall choose their Speaker and other officers: and shall have the sole power of impeachment.
Section 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, [italicized phrase altered by Amendment XVII] for six years; and each Senator shall have one vote.
Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation or otherwise, during the recess of the legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies. [Italicized clause modified by Clause 2 of Amendment XXVII]
No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen.
The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.
The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of the President of the United States.
The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: and no person shall be convicted without the concurrence of two-thirds of the members present.
Judgment in cases of impeachment shall not extend further than to removal from the office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
Section 4. The times, places and manner of holding elections for Senate and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.
The Congress shall assemble at least once in every year, and such meeting shall he on the first Monday in December, unless they shall by law appoint a different day. [Italicized clause superseded by Section 2 of Amendment XX]
Section 5. Each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members in such manner, and under such penalties, as each house may provide.
Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member. Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one-fifth of those present, be entered on the journal.
Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.
Section 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law and paid out of the treasury of the United States. They shall in all cases except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place.
No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States shall be a member of either house during his continuance in office.
Section 7. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.
Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it. but if not he shall return it with objections to that house in which it originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and, if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be re-passed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.
Section 8. The Congress shall have power
To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several States, and with the Indian tribes;
To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the Union suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the Officers and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of government of the United States, and to exercise like authority over all places purchased by the Consent of the legislature of the State, in which the same shall be, for erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
Section 9. The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year 1808; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. [Italicized clause was a temporary provision]
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
No bill of attainder or ex post facto law shall be passed.
No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.
No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another.
No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.
No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
Section 10. No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.
No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws: and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
Section 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected as follows:
Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list said house shall in like manner choose the President. But in choosing the President the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice President. [Italicized clause superseded by Amendment XII]
The Congress may determine the time of choosing the electors and the day on which they shall give their votes; which day shall be the same throughout the United States.
No person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.
In case of the removal of the President from office or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected. [Italicized clause modified by Amendment XXV]
The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.
Before he enter on the execution of his office, he shall take the following oath or affirmation:— “I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability preserve, protect and defend the Constitution of the United States.”
Section 2. The President shall be commander in chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur, and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
Section 3. He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
Section 4. The President, Vice President and all civil officers of the United States shall be removed from office on impeachment for, and on conviction of, treason, bribery, or other high crimes and misdemeanors.
Section 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;—to all cases affecting ambassadors, other public ministers and consuls;—to all cases of admiralty and maritime jurisdiction;—to controversies to which the United States shall be a party;—to controversies between two or more States;—between a State and citizens of another State;—between citizens of different States;—between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens or subjects. [italicized phrases restricted by Amendment XI]
In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.
Section 3. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
Section 1. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
Section 2. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.
No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. [Italicized clause superseded by Amendment XIII]
Section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned as well as of the Congress.
The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.
Section 4. The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.
The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendments which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article [italicized clause was a temporary provision], and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.
All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The Senators and Representatives before mentioned, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.
Done in Convention by the unanimous consent of the States present, the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty-seven and of the Independence of the United States of American the twelfth. In witness whereof we have hereunto subscribed our names. [Signatures omitted]
CONSTITUTIONAL AMENDMENTS I-X (“BILL OF RIGHTS”)
[Amendments I-X, proposed in 1789 and adopted in 1791, are now known as the Bill of Rights.
III. No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
THE CONSTITUTION DEBATE BETWEEN “PUBLIUS” AND “BRUTUS” (1787)
The question of whether to ratify the new constitution was hotly debated throughout the thirteen states. In no state was public opinion so evenly divided between the Federalists supporting the constitution and the Anti-federalists opposing it as in New York. The debate took the form in part of a series of newspaper articles by both sides written under pseudonyms. The eighty-five Federalist articles (written by James Madison, Alexander Hamilton, and John Jay) became known collectively as The Federalist Papers and are considered the most important contribution to American political theory. What follows are examples of both sides of the debate.
“Publius” (James Madison), Federalist #10
To the People of the State of New York:
Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. …
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.
There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.
There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes
faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.
The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. … But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. …
It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole. The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS.
If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. …
By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. …
From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. … Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. …
A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union. The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.
The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:
In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.
In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters. …
The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. …
Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,—is enjoyed by the Union over the States composing it. …
The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.
In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.
“Brutus” (Robert Yates), Anti-Federalist Letter
To the Citizens of the State of New York: …
Perhaps this country never saw so critical a period in their political concerns. We have felt the feebleness of the ties by which these United States are held together, and the want of sufficient energy in our present confederation, to manage, in some instances, our general concerns. Various expedients have been proposed to remedy these evils, but none have succeeded. At length a Convention of the states has been assembled, they have formed a constitution which will now, probably, be submitted to the people to ratify or reject, who are the fountain of all power, to whom alone it of right belongs to make or unmake constitutions, or forms of government, at their pleasure. The most important question … is before you, and you are to decide upon it by men of your own election, chosen specially for this purpose. If the constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings of liberty, to secure the inestimable rights of mankind, and promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed. … But if, on the other hand, this form of government contains principles that will lead to the subversion of liberty—if it tends to establish a despotism, or, what is worse, a tyrannic aristocracy; then, if you adopt it, this only remaining asylum for liberty will be shut up, and posterity will execrate your memory. …
It is insisted, indeed, that this constitution must be received, be it ever so imperfect. If it has its defects, it is said, they can be best amended when they are experienced. But remember, when the people once part with power, they can seldom or never resume it again but by force. Many instances can be produced in which the people have voluntarily increased the powers of their rulers; but few, if any, in which rulers have willingly abridged their authority. This is a sufficient reason to induce you to be careful, in the first instance, how you deposit the powers of government. With these few introductory remarks, I shall proceed to a consideration of this constitution:
The first question that presents itself on the subject is, whether a confederated government be the best for the United States or not? Or in other words, whether the thirteen United States should be reduced to one great republic, governed by one legislature, and under the direction of one executive and judicial; or whether they should continue thirteen confederated republics, under the direction and controul of a supreme federal head for certain defined national purposes only? …
This government is to possess absolute and uncontroulable power, legislative, executive and judicial, with respect to every object to which it extends, for by the last clause of section 8th, article 1st, it is declared “that the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States; or in any department or office thereof.” And by the 6th article, it is declared “that this constitution, and the laws of the United States, which shall be made in pursuance thereof, and the treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution, or law of any state to the contrary notwithstanding.” It appears from these articles that there is no need of any intervention of the state governments, between the Congress and the people, to execute any one power vested in the general government, and that the constitution and laws of every state are nullified and declared void, so far as they are or shall be inconsistent with this constitution, or the laws made in pursuance of it, or with treaties made under the authority of the United States. The government then, so far as it extends, is a complete one, and not a confederation. … The powers of the general legislature extend to every case that is of the least importance—there is nothing valuable to human nature, nothing dear to freemen, but what is within its power. It has authority to make laws which will affect the lives, the liberty, and property of every man in the United States; nor can the constitution or laws of any state, in any way prevent or impede the full and complete execution of every power given. The legislative power is competent to lay taxes, duties, imposts, and excises; —there is no limitation to this power… ; the legislature have authority to contract debts at their discretion; they are the sole judges of what is necessary to provide for the common defence, and they only are to determine what is for the general welfare; this power therefore is neither more nor less, than a power to lay and collect taxes, imposts, and excises, at their pleasure. …
The judicial power of the United States is to be vested in a supreme court, and in such inferior courts as Congress may from time to time ordain and establish. The powers of these courts are very extensive; their jurisdiction comprehends all civil causes, except such as arise between citizens of the same state; and it extends to all cases in law and equity arising under the constitution. … These courts will be, in themselves, totally independent of the states, deriving their authority from the United States, and receiving from them fixed salaries; and in the course of human events it is to be expected, that they will swallow up all the powers of the courts in the respective states. …
What is meant is, that the legislature of the United States are vested with the great and uncontroulable powers, of laying and collecting taxes, duties, imposts, and excises; of regulating trade, raising and supporting armies, organizing, arming, and disciplining the militia, instituting courts, and other general powers. And are by this clause invested with the power of making all laws, proper and necessary, for carrying all these into execution; and they may so exercise this power as entirely to annihilate all the state governments, and reduce this country to one single government. And if they may do it, it is pretty certain they will; for it will be found that the power retained by individual states, small as it is, will be a clog upon the wheels of the government of the United States; the latter therefore will be naturally inclined to remove it out of the way. Besides, it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way. …
Let us now proceed to enquire, as I at first proposed, whether it be best the thirteen United States should be reduced to one great republic, or not? It is here taken for granted, that all agree in this, that whatever government we adopt, it ought to be a free one; that it should be so framed as to secure the liberty of the citizens of America, and such an one as to admit of a full, fair, and equal representation of the people. The question then will be, whether a government thus constituted, and founded on such principles, is practicable, and can be exercised over the whole United States, reduced into one state? …
History furnishes no example of a free republic, any thing like the extent of the United States. The Grecian republics were of small extent; so also was that of the Romans. Both of these, it is true, in process of time, extended their conquests over large territories of country; and the consequence was, that their governments were changed from that of free governments to those of the most tyrannical that ever existed in the world.
Not only the opinion of the greatest men, and the experience of mankind, are against the idea of an extensive republic, but a variety of reasons may be drawn from the reason and nature of things, against it. In every government, the will of the sovereign is the law. In despotic governments, the supreme authority being lodged in one, his will is law, and can be as easily expressed to a large extensive territory as to a small one. In a pure democracy the people are the sovereign, and their will is declared by themselves; for this purpose they must all come together to deliberate, and decide. This kind of government cannot be exercised, therefore, over a country of any considerable extent; it must be confined to a single city, or at least limited to such bounds as that the people can conveniently assemble, be able to debate, understand the subject submitted to them, and declare their opinion concerning it. …
In every free government, the people must give their assent to the laws by which they are governed. … Now, in a large extended country, it is impossible to have a representation, possessing the sentiments, and of integrity, to declare the minds of the people, without having it so numerous and unwieldy, as to be subject in great measure to the inconveniency of a democratic government.
The territory of the United States is of vast extent; it now contains near three millions of souls, and is capable of containing much more than ten times that number. Is it practicable for a country, so large and so numerous as they will soon become, to elect a representation, that will speak their sentiments, without their becoming so numerous as to be incapable of transacting public business? It certainly is not. …
In a republic of such vast extent as the United-States, the legislature cannot attend to the various concerns and wants of its different parts. It cannot be sufficiently numerous to be acquainted with the local condition and wants of the different districts, and if it could, it is impossible it should have sufficient time to attend to and provide for all the variety of cases of this nature, that would be continually arising. …
These are some of the reasons by which it appears, that a free republic cannot long subsist over a country of the great extent of these states. If then this new constitution is calculated to consolidate the thirteen states into one, as it evidently is, it ought not to be adopted. …
THE ALIEN AND SEDITION ACTS (1798)
In the early 1790s, the French Revolution (which began in 1789, the same year the U.S. Constitution went into effect) turned radical with the crowds of Paris playing a more prominent role. The Federalists interpreted these events as “mob rule” feared that the same thing could happen in the United States. They believed that public office should be limited to the elites, the “virtuous” men, who would not be susceptible to popular passions and corruption. A group around Thomas Jefferson and James Madison took the opposite view, believing that the populace represented a check on the actions of the elites dominating the national government. The rhetoric of the Federalists and the Democratic Republicans (or Jeffersonians to avoid confusion with later parties) escalated to the point that each side accused the other of being unpatriotic. During the 1790s thousands of French and Irish refugees entered the country and were recruited by the Jeffersonians. In the election of 1796, the Federalist John Adams defeated Jefferson by just three electoral votes. When tension between the U.S. and France increased, the Federalists passed the Alien and Sedition Acts in 1798. The Alien Enemies and Alien Friends Acts allowed the president to order the deportation of aliens he considered dangerous in wartime and peacetime respectively. The Naturalization Act increased the residency requirement for citizenship from five to fourteen years. The Sedition Act targeted newspaper editors, alien and citizen, who criticized the president and his government. A Federalist paper summed up the act: “It is patriotism to write in favor of our government—it is sedition to write against it.” The Jeffersonians criticized all the acts as an attempt to stifle the opposition during the election campaign of 1800. Selections from two of the acts follow.
An Act Respecting Alien Enemies
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies. And the President of the United States shall be, and he is hereby authorized, in any event, as aforesaid, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, towards the aliens who shall become liable, as aforesaid; the manner and degree of the restraint to which they shall be subject, and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those, who, not being permitted to reside within the United States, shall refuse or neglect to depart therefrom; and to establish any other regulations which shall be found necessary in the premises and for the public safety. …
The Sedition Act
THOMAS JEFFERSON, FIRST INAUGURAL ADDRESS (1801)
Jefferson narrowly won the election of 1800, marking the first transfer of power from one party to another under the Constitution. In his inaugural address, he tried to defuse the intense party conflict of the campaign and reassure Federalists that there would be no retaliation against them along the lines of the Sedition Act. In its essence this address recognizes the concept of a loyal opposition.
Friends and Fellow-Citizens:
Called upon to undertake the duties of the first executive office of our country, I avail myself of the presence of that portion of my fellow-citizens which is here assembled to express my grateful thanks for the favor with which they have been pleased to look toward me, to declare a sincere consciousness that the task is above my talents, and that I approach it with those anxious and awful presentiments which the greatness of the charge and the weakness of my powers so justly inspire. A rising nation, spread over a wide and fruitful land, traversing all the seas with the rich productions of their industry, engaged in commerce with nations who feel power and forget right, advancing rapidly to destinies beyond the reach of mortal eye—when I contemplate these transcendent objects, and see the honor, the happiness, and the hopes of this beloved country committed to the issue, and the auspices of this day, I shrink from the contemplation, and humble myself before the magnitude of the undertaking. Utterly, indeed, should I despair did not the presence of many whom I here see remind me that in the other high authorities provided by our Constitution I shall find resources of wisdom, of virtue, and of zeal on which to rely under all difficulties. To you, then, gentlemen, who are charged with the sovereign functions of legislation, and to those associated with you, I look with encouragement for that guidance and support which may enable us to steer with safety the vessel in which we are all embarked amidst the conflicting elements of a troubled world.
During the contest of opinion through which we have passed the animation of discussions and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the Constitution, all will, of course, arrange themselves under the will of the law, and unite in common efforts for the common good. All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression. Let us, then, fellow-citizens, unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things. And let us reflect that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions. … [E]very difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it. I know, indeed, that some honest men fear that a republican government can not be strong, that this Government is not strong enough; but would the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm on the theoretic and visionary fear that this Government, the world’s best hope, may by possibility want energy to preserve itself? I trust not. I believe this, on the contrary, the strongest Government on earth. I believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern. …
Let us, then, with courage and confidence pursue our own Federal and Republican principles, our attachment to union and representative government. … [W]ith all these blessings, what more is necessary to make us a happy and a prosperous people? Still one thing more, fellow-citizens—a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.
About to enter, fellow-citizens, on the exercise of duties which comprehend everything dear and valuable to you, it is proper you should understand what I deem the essential principles of our Government, and consequently those which ought to shape its Administration. … These principles form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation. The wisdom of our sages and blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civic instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety. …
Relying, then, on the patronage of your good will, I advance with obedience to the work, ready to retire from it whenever you become sensible how much better choice it is in your power to make. …
U.S. CONSTITUTIONAL AMENDMENTS XI-XII (1795-1804)
XII. [Adopted 1804] The electors shall meet in their respective States, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the President of the Senate;—the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice President shall act as President, as in the case of the death or other constitutional disability of the President. [Italicized sentence superseded by Section 3 of Amendment XX] The person having the greatest number of votes as Vice President shall be the Vice President, if such a number be a majority of the whole number of electors appointed; and if no person have a majority, then from the two highest numbers on the list the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators. and a majority of the whole number shall be necessary to a choice But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.
JOHN MARSHALL, MARBURY v. MADISON (1803)
In the period between John Adams’s defeat in the election of 1800 and Jefferson’s inauguration as president, Adams appointed a number of Federalists as federal judges. One of these, William Marbury, was designated as a justice of the peace in the District of Columbia on the last day of Adams’s presidency, but his appointment was never fully finalized by the new secretary of state, James Madison. Marbury brought suit, asking the court to issue a writ of mandamus ordering Madison to deliver his commission. In his decision, Marshall agreed that Marbury was entitled to his judgeship, but declared that the provision in the Judiciary Act of 1789 giving the court the power of issuing such a writ was unconstitutional. Marshall argued that on the Constitution was “the fundamental and paramount law of the nation” and that “an act of the legislature repugnant to the constitution is void.” In other words, when the Constitution conflicts with an act of the legislature, that act is invalid. This was the first case in which the Supreme Court exercised the power of federal judicial review, which was not expressly stated in the Constitution. In doing so it created an important precedent.
… When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.
To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original.
It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.
The authority, therefore, given to the Supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.
The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. …
The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. …
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of the fundamentals of our society. It is not therefore to be lost sight of in the further consideration of this subject. …
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. … This is of the very essence of judicial duty.
It, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare than an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that it the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection. …
The particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.
The rule must be discharged.
JOHN MARSHALL, MCCULLOCH v. MARYLAND (1819)
In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax. The case presented two questions: Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with congressional powers? In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers. Writing for the Court, Chief Justice Marshall noted that Congress possessed powers not explicitly outlined in the Constitution. Marshall also held that while the states retained the power of taxation, “the constitution and the laws made in pursuance thereof are supreme … they control the constitution and laws of the respective states, and cannot be controlled by them.” The ruling was based on Article I, Section 8, Clauses 1 and 18. The latter is known as “the elastic clause.”
The first question made in the cause is—Has Congress power to incorporate a bank?
It has been truly said that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures and has been acted upon by the Judicial Department, in cases of peculiar delicacy, as a law of undoubted obligation.
In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the Constitution, to consider that instrument not as emanating from the people but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion.
It would be difficult to sustain this proposition. The Convention which framed the Constitution was indeed elected by the state legislatures, but the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States with a request that it might be submitted to a Convention of Delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification. This mode of proceeding was adopted; and by the Convention, by Congress, and by the state legislatures the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject-by assembling in convention. …
From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is ordained and established in the name of the people; and is declared to be ordained in order to form a more perfect union, establish justice, ensure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity. The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete obligation, and bound the state sovereignties. …
The government of the Union, then (whatever may be the influence of this fact on the case), is emphatically and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them and are to be exercised directly on them and for their benefit. …
But this question is not left to mere reason: the people have, in express terms, decided it by saying, this Constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land, and by requiring that the members of the state legislatures, and the officers of the Executive and Judicial departments of the states shall take the oath of fidelity to it. …
The government of the United States, then, though limited in its powers is supreme; and its laws, when made in pursuance of the Constitution, form the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding. …
Although, among the enumerated powers of government, we do not find the word bank or incorporation, we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are entrusted to its government. …[I]t may with great reason be contended that a government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. …
After the most deliberate consideration, it is the unanimous and decided opinion of this Court that the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution, and is a part of the supreme law of the land. …
That the power of taxing it by the states may be exercised so as to destroy it is too obvious to be denied. But taxation is said to common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole-between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme.
The Court has bestowed on this subject its most deliberate consideration. The result is a conviction that the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared.
We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void. …
JOHN MARSHALL, BARRON v. MAYOR & CITY COUNCIL OF BALTIMORE (1833)
John Barron was co-owner of a profitable wharf in the harbor of Baltimore. As the city developed and expanded, large amounts of sand accumulated in the harbor, depriving Barron of the deep waters that had been the key to his successful business. He sued the city to recover a portion of his financial losses. The constitutional issue raised was if the Fifth Amendment denied states as well as the national government from taking property without due compensation. The Court held that the Fifth Amendment applied only to the national government and not to the state governments.
… The plaintiff in error contends that it comes within that clause in the Fifth Amendment to the Constitution which inhibits the taking of private property for public use without just compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States. …
The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes. …
The counsel for the plaintiff in error insists that the Constitution was intended to secure the people of the several States against the undue exercise of power by their respective State governments, as well as against that which might be attempted by their General Government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the General Government. Some of them use language applicable only to Congress, others are expressed in general terms. The third clause, for example, declares, that “no bill of attainder or ex post facto law shall be passed.” No language can be more general, yet the demonstration is complete that it applies solely to the Government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain State legislation, contains in terms the very prohibition. It declares, that “no State shall pass any bill of attainder or ex post facto law.” This provision, then, of the ninth section, however comprehensive its language, contains no restriction on State legislation. …
If the original Constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the General Government and on those of the State; if, in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason. …
We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the Constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed. …
ROGER TANEY, DRED SCOTT v. SANFORD (1857)
In 1833 Dred Scott, accompanied his master, John Emerson, to Illinois (a free state) and in an area of the Louisiana Territory where slavery was forbidden by the Missouri Compromise of 1820. He returned with his master to Missouri. With Emerson’s death, Scott filed suit against his master’s widow for his and his family’s freedom in Missouri, where the state supreme court overturned a lower court and denied his freedom. Eventually he became the property of the widow’s brother, John Sanford, and filed suit in federal court. Scott’s master maintained that no pure-blooded black of African descent and the descendant of slaves could be a citizen in the sense of Article III of the Constitution. The Court supported Sanford (7-2) and held that Dred Scott was a slave. The decision, written by Chief Justice Roger Taney, stated that under Articles III and IV, no one but a citizen of the United States could be a citizen of a state, and that only Congress could confer national citizenship. Taney argued that no person descended from an American slave had ever been a citizen for Article III purposes. The Court then held the Missouri Compromise unconstitutional, hoping to end the slavery question once and for all. After reviewing the facts, Taney first addressed the question of whether Scott was a citizen and entitled to bring his lawsuit.
The question is simply this: can a negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen. One of these rights is the privilege of suing in a court of the United States in the cases specified in the Constitution…
The words “people of the United States” and “citizens” are synonymous terms, and mean the same thing. They both describe the political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the “sovereign people,” and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty. We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can, therefore, claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them. …
In discussing this question, we must not confound the rights of citizenship which a state may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. … Consequently, no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the federal government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.
It is very clear, therefore, that no State can, by any Act or law of its own, passed, since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And for the same reason it cannot introduce any person, or description of persons, who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it. …
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument. …
The language of the Declaration of Independence is equally conclusive.
It begins by declaring that, “when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and nature’s God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation.”
It then proceeds to say: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among them is life, liberty, and pursuit of happiness; that to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.”
The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day, would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this Declaration. …
This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language. …
[T]here are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the government then formed.
One of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808, if it thinks proper. … And by the other provision the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories. By the first above-mentioned clause, therefore, the right to purchase and hold this property is directly sanctioned and authorized for twenty years by the people who framed the Constitution. And by the second, they pledge themselves to maintain and uphold the right of the master in the manner specified, as long as the government they then formed should endure. And these two provisions show, conclusively, that neither the description of persons therein referred to, nor their descendants, were embraced in any of the other provisions of the Constitution; for certainly these two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen. …
[U]pon a full and careful consideration of the subject, the court is of opinion that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts; and, consequently, that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous. …
The Act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of that territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not included within the limits of Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is, whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution; for if the authority is not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring freedom upon one who is held as a slave under the laws of any one of the States. …
[T]he power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of government. The powers of the government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. … The territory being a part of the United States, the government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved. …
Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every State that might desire it, for twenty years. And the government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words—too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.
Upon these considerations, it is the opinion of the court that the Act of Congress which prohibited a citizen from holding’ and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident. …
ABRAHAM LINCOLN, GETTYSBURG ADDRESS (1863)
In July 1863 the Union Army defeated the Confederates at Gettysburg, Pennsylvania in one of the decisive battles of the Civil War. The battlefield was turned into a cemetery and at its dedication on November 19, 1863, President Lincoln delivered one of the great speeches in American history. In it he emphasized the principles of national unity and individual equality.
Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow, this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember, what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.
U.S. CONSTITUTIONAL AMENDMENTS XIII-XV (1865-1870)
These important amendments were adopted in the aftermath of the Civil War and comprise what has been called the second constitutional transformation.
XIII. [Adopted 1865]
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
XIV. [Adopted 1868]
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress or Elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof. Congress may, by a vote of two-thirds of each house, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void.
Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
BLACK CODE, ST. LANDRY PARISH, LOUISIANA (1865)
After the passage of the Thirteenth Amendment, southern states established Black Codes to restrict the activities of the soon-to-be-free black population. These codes were designed to ensure that blacks remained as a servile and low-wage labor force. Because blacks had few economic resources after emancipation, these codes were designed to keep them under the control of white landowners. There were also restrictions on their political activity and basic freedoms. These codes enraged many northerners and provided the impetus for the passage of the Civil Rights Act of 1866. The following is typical of these codes.
Sec. 1. Be it ordained by the police jury of the parish of St. Landry, That no negro shall be allowed to pass within the limits of said parish without special permit in writing from his employer. Whoever shall violate this provision shall pay a fine of two dollars and fifty cents, or in default thereof shall be forced to work four days on the public road, or suffer corporeal punishment as provided hereinafter. …
Sec. 3. … No negro shall be permitted to rent or keep a house within said parish. Any negro violating this provision shall be immediately ejected and compelled to find an employer; and any person who shall rent, or give the use of any house to any negro, in violation of this section, shall pay a fine of five dollars for each offence.
Sec. 4. … Every negro is required to be in the regular service of some white person, or former owner, who shall be held responsible for the conduct of said negro. But said employer or former owner may permit said negro to hire his own time by special permission in writing, which permission shall not extend over seven days at any one time. …
Sec. 5. … No public meetings or congregations of negroes shall be allowed within said parish after sunset; but such public meetings and congregations may be held between the hours of sunrise and sunset, by the special permission in writing of the captain of patrol, within whose beat such meetings shall take place. …
Sec. 6. … No negro shall be permitted to preach, exhort, or otherwise declaim to congregations of colored people, without a special permission in writing from the president of the police jury. . . .
Sec. 7. … No negro who is not in the military service shall be allowed to carry fire-arms, or any kind of weapons, within the parish, without the special written permission of his employers, approved and indorsed by the nearest and most convenient chief of patrol. …
Sec. 8. …No negro shall sell, barter, or exchange any articles of merchandise or traffic within said parish without the special written permission of his employer, specifying the article of sale, barter or traffic. …
Sec. 11. … It shall be the duty of every citizen to act as a police officer for the detection of offences and the apprehension of offenders, who shall be immediately handed over to the proper captain or chief of patrol. …
THE CIVIL RIGHTS ACT (1866)
In 1866 the Republicans controlled both houses of Congress and clashed with Andrew Johnson, who had become president after Lincoln’s assassination, over the rights of the newly freed African-American slaves. Southern states passed Black Codes to discriminate against blacks, and Johnson denied that Congress had the power to protect the former slaves against these codes. The Republicans in Congress disagreed and passed the Civil Rights Act, which provided such protection. Johnson insisted that the act was unconstitutional and some Republicans shared his misgivings. To overcome any such objections, Congress passed the Fourteenth Amendment, which was ratified in 1868.
An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.
Be it enacted … , That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. …
THE PLEDGE OF ALLEGIANCE: ITS HISTORY (1892)
The Pledge of Allegiance was written in August 1892 by the socialist minister Francis Bellamy (1855-1931). It was originally published in The Youth’s Companion on September 8, 1892. Bellamy had hoped that the pledge would be used by citizens in any country.
In its original form it read: “I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all.”
In 1923, the words, “the Flag of the United States of America” were added. At this time it read: “I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands, one nation, indivisible, with liberty and justice for all.”
In 1954, in response to the perceived Communist threat of the times, President Eisenhower encouraged Congress to add the words “under God,” creating the 31-word pledge we say today. Bellamy’s daughter objected to this alteration. Today it reads: “I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.”
The original Bellamy salute, first described in 1892 by Francis Bellamy, who authored the original Pledge, began with a military salute, and after reciting the words “to the flag,” the arm was extended toward the flag.
Shortly thereafter, the pledge was begun with the right hand over the heart, and after reciting “to the Flag,” the arm was extended toward the Flag, palm-down.
In World War II, the salute too much resembled the Nazi salute, so it was changed to keep the right hand over the heart throughout.
U.S. CONSTITUTIONAL AMENDMENTS XVI-XIX (1913-1920)
These four amendments were adopted during the Progressive period.
XVI. [Adopted 1913]. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
XVII. [Adopted 1913]
Section 1. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
Section 2. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, that the Legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the Legislature may direct.
Section 3. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
Amendment XVIII. [Adopted 1919; repealed by Amendment XXI, 1933]
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof, for beverage purposes, is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided by the Constitution, within seven years from the date of the submission thereof to the States by the Congress.
XIX. [Adopted 1920]
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
FRANKLIN D. ROOSEVELT, STATE OF THE UNION SPEECH (1944)
This speech in January 1944, toward the end of Roosevelt’s third term, is sometimes referred to as the “Economic Bill of Rights” or the “Second Bill of Rights.” It was a culmination of Roosevelt’s New Deal philosophy. The New Deal was a series of economic programs implemented in the 1930s to help combat the worst aspects of the Great Depression that started in 1929. When Roosevelt was first inaugurated in 1933, a quarter of the United States were unemployed, industrial output had fallen by half, farm prices had fallen by 60%, and banks had failed in 32 of the 48 states. The New Deal focused on what historians call the “3 Rs”: relief for those most vulnerable, recovery of the economy to normal levels, and reform of the financial and banking systems. Through legislation a series of government agencies and programs were created, such as the Works Progress Administration, the National Recovery Administration, the Agricultural Administration, the Social Security System, the National Labor Relations Board, the Federal Deposit Insurance Corporation, and the U.S. Securities and Exchange Commission. Many of the relief programs were ended during World War II due to the return of full employment. Roosevelt’s Democratic successor, Harry Truman, and Dwight Eisenhower, a Republican, left most of the New Deal intact in the 1950s.
To the Congress:
This Nation in the past two years has become an active partner in the world’s greatest war against human slavery.
We have joined with like-minded people in order to defend ourselves in a world that has been gravely threatened with gangster rule.
But I do not think that any of us Americans can be content with mere survival. Sacrifices that we and our allies are making impose upon us all a sacred obligation to see to it that out of this war we and our children will gain something better than mere survival.
We are united in determination that this war shall not be followed by another interim which leads to new disaster—that we shall not repeat the tragic errors of ostrich isolationism—that we shall not repeat the excesses of the wild twenties when this Nation went for a joy ride on a roller coaster which ended in a tragic crash. …
The one supreme objective for the future, which we discussed for each Nation individually, and for all the United Nations, can be summed up in one word: Security.
And that means not only physical security which provides safety from attacks by aggressors. It means also economic security, social security, moral security—in a family of Nations. …
China and Russia are truly united with Britain and America in recognition of this essential fact:
The best interests of each Nation, large and small, demand that all freedom-loving Nations shall join together in a just and durable system of peace. In the present world situation, evidenced by the actions of Germany, Italy, and Japan, unquestioned military control over disturbers of the peace is as necessary among Nations as it is among citizens in a community. And an equally basic essential to peace is a decent standard of living for all individual men and women and children in all Nations. Freedom from fear is eternally linked with freedom from want. …
This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.
As our Nation has grown in size and stature, however—as our industrial economy expanded-these political rights proved inadequate to assure us equality in the pursuit of happiness.
We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” People who are hungry and out of a job are the stuff of which dictatorships are made.
In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all regardless of station, race, or creed.
Among these are:
The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;
The right to earn enough to provide adequate food and clothing and recreation;
The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
The right of every family to a decent home;
The right to adequate medical care and the opportunity to achieve and enjoy good health;
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
The right to a good education.
All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being. …
I ask the Congress to explore the means for implementing this economic bill of rights—for it is definitely the responsibility of the Congress so to do. Many of these problems are already before committees of the Congress in the form of proposed legislation. I shall from time to time communicate with the Congress with respect to these and further proposals. In the event that no adequate program of progress is evolved, I am certain that the Nation will be conscious of the fact. …
Each and every one of us has a solemn obligation under God to serve this Nation in its most critical hour—to keep this Nation great—to make this Nation greater in a better world.
U.S. CONSTITIONAL AMENDMENTS XX-XVII (1933-1992)
These amendments were adopted during and after the New Deal. Three (XX, XXII, and XXV dealt with rules governing the office of the presidency. XXI repealed XVIII. XXIII, XXIV, and XXVI extended suffrage rights. XXVII placed a check on congressional pay.
Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d of January, unless they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the term of the President, the President-elect shall have died, the Vice President-elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such persons shall act accordingly until a President or Vice President shall have qualified.
Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of three-fourths of the several States within seven years from the date of its submission.
XXI. [Adopted 1933]
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of submission thereof to the States by the Congress.
XXII. [Adopted 1951]
Section 1. No person shall be elected to the office of President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.
Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
XXIII. [Adopted 1961]
Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
XXIV. [Adopted 1964]
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation
XXV. [Adopted 1967]
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
XXVI. [Adopted 1971]
Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
XXVII. [Proposed 1789, Adopted 1992] No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
THE CONSTITUTION OF NEVADA: A BRIEF HISTORICAL SYNOPSIS
By Michael Green
Nevada calls itself “Battle Born” because it achieved statehood during the Civil War (1861-65). Just as the Civil War created the conditions for statehood, it also shaped the constitution that governs Nevada. Disputes over the powers of federal and state governments helped prompt the South to secede from the Union, and the authors of the Nevada Constitution addressed those conflicts in hopes of preventing similar disagreements in the future. Like the rest of the country, Nevada still wrestles with matters of state and federal power in its constitution and in political processes, despite acknowledging the supremacy of the federal government. The era preceding the Civil War saw the increase in democracy for white men and concurrently the worsening conditions for blacks under “slave power.” The Union’s victory in the war reversed this inequality, at least formally. These two issues— the relation of federal to state power and the extension of democracy—have continued to be central to constitutional issues since the 1860s. Nevada’s current constitution reflects both of these central concerns.
The Nevada Constitution: Context
Many forces that shaped Nevada’s Constitution and led to statehood also influenced the creation of the Nevada territory. The United States acquired the land that includes Nevada in the Treaty of Guadalupe Hidalgo of February 2, 1848, ending the Mexican-American War. Only nine days before, prospectors had discovered gold at Sutter’s Mill near Sacramento, California. The resulting gold rush prompted many gold-seekers to cross into what is now Nevada. The first settlers in present-day Nevada were Salt Lake City Mormons who saw opportunity in opening a trading post for travelers en route to the Gold Rush, some of whom began prospecting the eastern foothills of the Sierra Nevada. Two years later, in the Compromise of 1850, Congress apportioned the newly gained territory by approving California’s statehood and creating two new territories, Utah and New Mexico. Northern Nevada, then part of Utah territory, needed governing but was too far removed from other settlements, and the small population was locally divided between Mormons and non-Mormons. In 1859, the discovery of gold in the Comstock, the Sierra Nevada foothills of modern Northern Nevada, led to a significant mining boom and the influx of enough people into the region to justify a separate government for the area.
Nevada’s future soon became caught up in the swirl of national events, especially divisions between the North and South over the question of slavery and the Civil War that followed. Debates over slavery dated to the 1787 Constitutional Convention and then to on-going discussions in Congress over the governing of the U.S. as a whole, the individual states, and U.S. territories. Although anti-slavery sentiment long had existed in the country, a series of reform movements and religious revivals during the first half of the nineteenth century encouraged, among other groups, abolitionists and opponents of the growth of slavery to advocate their cause.
Abolitionism never became a mass movement, but anti-slavery politicians came together during the 1850s in the newly created Republican Party, which sought to keep slavery from expanding into new territories, and succeeded in electing its presidential candidate, Abraham Lincoln, in 1860. Nevada became a territory on March 2, 1861, soon after seven southern states seceded from the Union and formed the Confederate States of America. Abraham Lincoln took the oath of office as president two days later. The Civil War itself began with the firing on Fort Sumter less than six weeks later. Thus, Nevada’s birth and the Civil War became intertwined.
When Lincoln made appointments to government positions, he emphasized loyalty to the Union even more than loyalty to his political party. But in choosing territorial officials whom he could count on to support the Union, he selected loyal Republicans with connections to his administration. His choice for territorial governor, James W. Nye of New York, was a political ally of Lincoln’s secretary of state, William Henry Seward. Nye stressed loyalty to the Union and urged territorial legislators to allow African Americans to serve in the militia and on juries, but those lawmakers refused. The territorial secretary, Orion Clemens, had worked in the St. Louis law office of Attorney General Edward Bates. Clemens handled administrative duties and inspired his brother Samuel to come west; Samuel started writing for newspapers and adopted the name Mark Twain. Nye often left Orion Clemens in charge of territorial affairs while he went to San Francisco and Washington, D.C. to lobby for statehood for Nevada Territory. He did this both to promote unionism and to satisfy his own ambition of becoming a U.S. senator.
Nevadans were eager enough for statehood to ignore federal law. In 1863 they held a constitutional convention even though Congress had yet to pass an enabling act that would authorize their efforts. The gathering included leaders of opposing factions who fought over how the mining industry, which dominated the state’s economy, would be taxed. When advocates of taxing the mines like any other industry won the fight, the losing side nonetheless supported the constitution. But its leader, mining attorney William M. Stewart, claimed that under his interpretation of the document, mining would still receive a tax break. Nevadans resented his claims and his arrogance, and because the ballot on the constitution also included unpopular candidates for office in the new state, the proposed constitution was overwhelmingly defeated in January of 1864.
Less than two months later, Congress passed an enabling act for Nevada to seek statehood. Another constitutional convention accordingly met in the summer of 1864. This time, delegates did not include the most prominent advocates on both sides of the mining tax issue, and the state constitution gave the mining industry the tax break its leaders desired: a limit on the rate at which mining revenues could be taxed, and taxing net revenues rather than gross revenues, meaning that mining corporations could deduct expenses first. Also, the convention delegates scheduled the public vote two months before the general election, so that the constitution would be the only issue. On September 7, 1864, it passed by a 4-1 margin.
Even so, Lincoln had yet to issue a proclamation of statehood for Nevada. Although Nye sent the constitution back to Washington, Lincoln never received it and, despite the pleas of Nye’s old friend Seward, refused to approve statehood without seeing the document first. With the 1864 presidential and state elections approaching, Nye had the Nevada Constitution telegraphed to Washington at a cost of more than $4,300 (about $60,000 in today’s dollars). Having received the constitution in this fashion, Lincoln signed the proclamation of statehood on 31 October 1864, declaring Nevada would enjoy “equal footing with the original States.” In other words, even as the thirty-sixth state, Nevada would enjoy all of the same privileges as the previously admitted states. On November 8th, Nevadans chose presidential electors, their congressional representative, state and local officials, and a state legislature that elected their first two U.S. senators: Stewart (the mining attorney) and Nye (the former territorial governor).
One of Nevada’s greatest myths is that Lincoln supported statehood because he wanted gold and silver from the Comstock Lode. Since Nevada was a U.S. territory, the ore already was available to him. What was in fact more important was that Lincoln and his party hoped to win the electoral votes of the new state of Nevada for the president’s reelection in 1864, and to gain extra support in Congress for the Thirteenth Amendment, which was designed to end slavery and to rebuild the country once the South surrendered. Lincoln indeed carried the state in the 1864 election, securing two electoral votes (the third elector was caught in a blizzard and unable to vote). Lincoln won an overwhelming Electoral College majority of 212-21. On 16 February 1865, just over two weeks after Congress sent it to the states for their approval, Nevada’s legislators made theirs the sixteenth state to ratify the Thirteenth Amendment.
The Nevada Constitution: Influences
The United States in 1864, when the Nevada Constitution was approved, was a different place from the country in 1789 that ratified the U.S. Constitution. The Nevada Constitution reflects the changes that had taken place during that period. The U.S. Constitution is the central document in American federalism, and the original Nevada Constitution reflected its influence in a variety of ways. Like the federal document, Nevada’s features a preamble acknowledging the separation of powers and checks and balances between the legislative, executive, and judicial branches; and it likewise devotes the most attention to legislative powers. Both documents outline the requirements for holding elective office and the lengths of terms, and how to impeach and remove an officeholder. Both constitutions give the executive the power to sign or veto legislation and the command of the armed forces. Neither originally set limits on how long the executive could serve, but both were amended in the twentieth century to limit the president and the governor to two terms, plus no more than two years of his or her predecessor’s term. Both empower the executive to make appointments, but while the U.S. Constitution gives the Senate the right to “advise and consent,” the Nevada Constitution leaves it up to the governor to appoint state board members and department heads without any confirmation process involving the legislature. Just as the Founding Fathers were concerned about presidential power in the wake of rebelling against the rule of King George III of England, the Nevada Constitution’s framers preferred a weaker executive: the governor runs for office separately from the lieutenant governor and four other state officials. This arrangement, known as the “plural executive,” gives more power to the voters in choosing executive officials. Originally the Nevada Constitution included an even larger number of elective statewide offices, such officials as the state printer and the state superintendent of public instruction, although Nevadans eventually amended their constitution to make these appointive.
This limitation of the power of the executive reflected changes in attitudes during the 1820s and 1830s, the era of “Jacksonian Democracy.” The United States departed from Britain and other European powers by granting voting rights to white men whether or not they owned property. Nevada’s Constitution reflected this expansion of democracy by outlining voting rights in its second article; the U.S. Constitution, written before widespread popular voting, offered no such instructions. These democratic attitudes were especially strong on the expanding western frontier, and Nevada was no exception. Reflecting the desire for population growth and the realization that many Nevadans had moved to the area only recently, the constitution assured residents of the right to vote within six months of arriving and guaranteed the foreign-born “the same rights in respect to the possession, enjoyment and inheritance of property, as native-born citizens”—a provision repealed in 1924 amid nationwide efforts to restrict immigration. Westerners generally preferred more limited government and a greater diffusion of power than their eastern counterparts, and they acted on that preference in Nevada’s Constitution by limiting the legislature to sessions biennially (every two years), with legislators paid only for the first sixty days of a session, which encouraged them to finish their business quickly.
Jacksonian Democrats combined these democratic changes with an attempt to limit the power of the federal government known as “states’ rights.” The latter element was rolled back nationally as tensions over the issue of slavery in the territories precipitated the Civil War. As a result of the Union’s victory in the war the power of the federal government was considerably strengthened. Thus, Nevada’s constitution reflected both the strengthening of the federal government and the democratizing of the concept of constitutional rights.
The strengthening of federal power can be found in Article I, Section 2, which declared unequivocally: “Paramount Allegiance of every citizen [of Nevada] is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State … to dissolve their connection therewith.” The Nevada constitution also stated that if an individual or group were to secede from the Union or were “forcibly [to] resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed forces in compelling obedience to its Authority.” The Section echoed the “Preliminary Action”—one of two paragraphs issued by the U.S. Congress that preceded the “Preamble”—which mandated that the state adopt the U.S. Constitution. Thus, in light of the South’s rebellion against the Union, the Nevada Constitution left no doubt that every citizen owed allegiance to the Union before his or her state, and that there was no legal basis for secession from, or destruction of, the Union.
Still another section of the Nevada Constitution tied to the Civil War and the doctrine of federal supremacy remains relevant: the Ordinance, the second of the Congress-mandated paragraphs preceding the Preamble, declares that Nevadans “forever disclaim all right and title to the unappropriated lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.” This was true already, since the U.S. controlled what is now Nevada as part of the treaty ending the Mexican-American War. Today, the federal government controls about eighty-seven percent of Nevada’s land. Many Nevadans, especially in rural areas outside of Las Vegas and Reno, have objected to this provision, leading in the late 1970s to the “Sagebrush Rebellion,” whose leaders demanded state control of federal lands. Although the amount of regulation of federal land and the fees required for its use have varied by presidential administration, federal ownership and control of the vast majority of Nevada’s land remains unchanged.
The Thirteenth Amendment, the first of the Civil War amendments to the U.S. Constitution, was the first constitutional change that took power from the individual states. Slavery, which had been the prerogative of each state, was now outlawed throughout the nation. Although it was written six months before Congress passed the Thirteenth Amendment, the Nevada Constitution outlawed slavery explicitly, as mandated in the act that Congress approved to permit Nevada to seek statehood. Also, Nevada denied the right to vote to any “person who, after arriving at the age of eighteen years, shall have voluntarily borne arms against the United States, or held civil or military office under the so-called Confederate States.”
The Fourteenth Amendment extended this incursion of federal powers into those of the states. We have seen that in proposing a successor to the Articles of Confederation, the framers of the U.S. Constitution gave considerably more powers to the federal government. During the ratification process, they had to acknowledge the limitation of those powers in ten amendments later known as the Bill of Rights. However, those limitations applied only at the federal level—that is, in relation to the central government in Washington—and not to the states. The Fourteenth Amendment changed that by guaranteeing these rights against the state governments, some specifically and some through the process of selective incorporation (by which judicial decisions applied the federal protections in the Bill of Rights to the state level). The Nevada Constitution reflected this change.
The Nevada Constitution’s Declaration of Rights was an additional bulwark for the protection of individual freedoms and reflects the evolution of federalism. The Declaration of Rights (Article I) is much more explicit and detailed than the federal Bill of Rights, requiring twice as many sections. This is partly because it includes not only the rights listed in the federal Bill of Rights but also some, such as the privilege of a writ of habeas corpus and the prohibition of bills of attainder and ex post facto laws, that are listed in the main body of the U.S. Constitution. Some of these rights are given more specificity than they have in the U.S. Bill of Rights. For example, Nevada more specifically limits freedom of religion or conscience, so that it “shall not be so construed, as to excuse acts of licentiousness or justify practices inconsistent with the peace, or safety of this State.” Many consider this an implied criticism of plural marriage, which the Mormon Church then permitted. Section 11 of Article I reflects and refines the Second Amendment of the U.S. Constitution by saying, “Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.” This formulation is more detailed than the federal amendment and its reference to a militia, and allows the state to define just what “security” and “defense” mean. Some of these rights now seem redundant, but they reflect concerns regarding protection of freedoms extending far back into American history.
However, it is significant that the last section of the Nevada Declaration of Rights repeats the Ninth Amendment of the U.S. Bill of Rights. There is an equivalent of the Tenth Amendment, which reserved powers for the states. With the original Bill of Rights the protection of individual liberty and the limitation of federal power were congruent. Jacksonian Democrats were partially successful in extending both of these elements. Conversely, Civil War era Rebublicans believed that the extension of individual liberties, especially to non-whites, necessitated the increase in federal power. This latter formulation is reflected in the Nevada Constitution.
The Nevada Constitution: A Living Document
Like the U.S. Constitution’s framers, delegates to the Nevada constitutional convention made it possible, but not easy, to amend their work. Befitting the greater emphasis that the Nevada Constitution places on democracy, it allowed voters to decide on amendments after—and only if—the legislature had approved amendments at consecutive sessions. Amendments were rare in the nineteenth century: in 1869, the legislature approved women’s suffrage, and if the 1871 legislature had done the same and the voters had approved the measure, Nevada would have been the first state to enfranchise women. But the 1871 legislature defeated the amendment, and Nevada instead became one of the last states to approve votes for women, in 1914.
That decision reflected the era that led to the greatest changes in the Nevada Constitution: the Progressive Era. From about 1900 to 1920, several countries throughout the world engaged in liberal reform, with varying results: Great Britain reduced the power of the House of Lords and approved women’s suffrage after lengthy battles; Russia created representative government after 1905 but a democratic government collapsed in 1917 and gave way to communist rule. In the U.S., Progressives pursued a variety of policies intended to manage government, the economy, and individual lives more efficiently, for good and ill. They also believed in more democracy.
Nevada was very much part of this movement. With the state dominated by mining and railroad interests, its reforms had limits—but national Progressives similarly varied in just how reform-minded they were, and reacted in part to more radical demands for change from Socialists and Communists. Not only did Nevada approve women’s suffrage by ratifying the Nineteenth Amendment to the U.S. Constitution, but it also added the referendum in 1904 and the initiative in 1912, which allow voters to legislate and amend the constitution on their own (bypassing legislators). In 1912, Nevadans approved another progressive idea, the recall, which enables voters to remove elected officials: If one-quarter of those who voted in the last election of a state or local politician (members of Congress, who are U.S. officials, cannot be recalled) sign a petition seeking his or her removal, an election must be held in thirty days, and the recalled candidate may appear on the ballot and stay in office if successful.
These changes continue to affect Nevadans’ lives. Nevada’s voters initiated a change to the constitution in 2002 to prohibit same sex marriage (the provision was held to be unconstitutional in federal court in 2014). During the 1990s, initiatives led to amendments requiring a two-thirds vote of the legislature to increase taxes and limiting lawmakers to no more than twelve years in the assembly or the state senate. This is a sign that Nevadans remain doubtful about how active and large their government should be, as both significantly affect what the legislature does and how it does it. While Nevadans have recalled few officeholders, they have removed city council members.
The general beliefs of the Progressives animated such liberal reforms as Franklin Roosevelt’s New Deal of the 1930s and, in the 1950s and 1960s, the civil rights movement and the War on Poverty. National reform efforts, such as these, have helped shape the modern Nevada Constitution. Amendments to the U.S. Constitution have enfranchised African Americans, women, and people over the age of 18; an amendment has also eliminated a poll tax that forced citizens to pay for the privilege of exercising their right to vote.
One of the key changes in Nevada’s political and governmental system resulted from the rulings of the U.S. Supreme Court under Chief Justice Earl Warren in the 1960s. The U.S. Constitution requires all states to have a “republican form of government.” In Reynolds v. Sims (1964), the U.S. Supreme Court ruled that states were violating that provision of the Constitution by not having fair representation. At the time, Nevada based its representation on the “little federal plan.” The assembly, loosely based on population, resembled the House of Representatives. Emulating the U.S. Senate’s two members per state, Nevada’s State Senate had one senator per county, but this meant that the larger counties, Clark (Las Vegas) and Washoe (Reno), had the same number of senators as the smallest counties. Due to Reynolds and a lower federal court decision in Dungan v. Sawyer, Nevada was compelled to reapportion its legislature to reflect its population. As a result, since Clark County has nearly three-fourths of Nevada’s population, it has a corresponding number of legislators—15 of 21 in the state senate, 31 of 42 in the assembly (in 2015).
The Nevada Constitution: What It Does and Means
The most current text of the Nevada Constitution, including amendments and references to relevant laws, is at https://www.leg.state.nv.us/const/nvconst.html. Like the U.S. Constitution, it provides an extensive outline for our government system. Its nineteen sections address the three branches of government, the tax system, the educational system, finance, and state debt. The amount of guidance it gives varies: while the Nevada Constitution is more detailed than the U.S. Constitution, both leave room for interpretation and additional lawmaking. The Nevada Revised Statutes and various city and county ordinances are the laws that govern us, and they must be in accord with both the U.S. and Nevada Constitutions.
In many ways, the Nevada Constitution is like other state constitutions. But it also has allowed Nevadans to create the government that they want, and to change it when they see fit. Nevadans long have believed in a more limited, smaller state government. Thus, theirs is one of the few states where the legislature still meets every other year, instead of annually. They have joined other states in restricting the ability of legislators to raise taxes, and in enabling the public to legislate through the initiative and referendum, thus bypassing the legislature.
But the Nevada Constitution also raises questions for the state today. With Nevada’s twenty-first century population ninety times what it was in 1864, do the Nevada Constitution and the state government it designed properly serve Nevadans today? Does the state government’s expansion meet the requirements of this greater population, especially when Nevada is becoming a majority-minority state in which more of its people are Hispanic than Caucasian? Since the original Nevada Constitution did not contemplate this growth, is it right that the governor can make appointments without legislative confirmation? Should Nevada’s legislature meet more often? Is it possible for Clark County, with its percentage of the population, to have too much power, or should it exercise more power?
Early in the twenty-first century, Nevada ranked poorly in many categories that measure social progress, including the number of suicides, the percentage of high school graduates going to college, high school dropouts, pregnant teens, unimmunized children, killings related to domestic violence, health care, and smoking. The Tenth Amendment of the U.S. Constitution left powers to the states, and Nevada has taken advantage of that right, for good and for ill, to legalize gambling and to facilitate divorce, among other actions. The Nevada Constitution, in turn, means Nevadans have the freedom to make these decisions—and, once they make them, to change their mind
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