The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

Conclusion

At the close of the twentieth century, American society is very different from what it was at the close of the eighteenth century. Yet the Constitution ratified in 1788 still functions vigorously enough in a nation vastly increased in territory and population, vastly altered in its economy and technology. It seems worthwhile to take inventory of the Constitution’s enduring advantages.

(1) The Federal Union, held together by the Constitution, makes the United States the greatest power in the world, well prepared for national defense, able to muster immense resources in time of need, virtually invulnerable to attack until the development of long-distance nuclear weapons.

(2) The huge internal free-trade area of the United States, and the constitutional protections afforded to private property, commerce, and industry, have produced remarkable and enduring material prosperity—all directly related to the organic law of the United States, the Constitution.

(3) The division of political powers and functions between Federal and State governments gives the country energetic national policy, and yet leaves many important concerns in the hands of States and localities.

(4) An elaborate system of courts of law, both Federal and State, keeps the peace for Americans and maintains the rule of law far better than in most of the rest of the world.

(5) Civil rights for all citizens are jealously guarded by the Constitution, and effective measures are taken to make sure that no one will suffer solely because of his race, sex, or religion. In no country does there exist a higher degree of personal freedom.

(6) Participation in public affairs and decision-making is open to everyone interested, through the constitutional institutions of representative government. From local school boards and township offices to the Congress and the presidency, it is possible for an American to make his opinions known and his vote sought.

(7) No person, however rich or well known, exerts arbitrary power in America. Checks upon power, and balances of power, still function in the national and the State governments. Nor does any class or social group enjoy special privileges at law.

(8) Individual freedom of choice in many things, personal privacy, and opportunity for success in many walks of life are made possible by a political system that takes heed of the dignity of the human person and looks upon the state as designed for the advancement and protection of that person.

(9) Freedom of religious belief and practice is secure in the United States, and fanatic ideologies have not thrust aside the American habit of thinking for one’s self.

(10) Freedom of speech and of the press and other media of communication are virtually unlimited; opportunities for education, training, and self-improvement are greater than in any other country.

All these ten large advantages, and a good many more, are bound up with our constitutional system and the customs and traditions that have been nurtured by the Constitution. But also the Constitution of the United States encounters real difficulties nowadays. Can it endure for another two centuries? Listed below are some of the problems that must be confronted by Americans who know that liberty, order, and justice do not endure if they are left unattended.

(1) Any political order, including that of the United States, rests upon a moral order—a body of common convictions about good and evil, about duties and rights. The Constitution was drawn up by men who shared certain realistic and healthy assumptions about human nature and society. But nowadays in this country, as generally in the modern world, signs of widespread moral decay are obvious enough. Good laws are not upheld by corrupt men and women. The Framers of the Constitution spoke often of virtue, meaning by that word both personal courage and integrity, and a general willingness to sacrifice one’s own interests, if need be, for the common good. Are the American people, most of them, still aware of moral obligations and prepared to uphold the Constitution in an hour of need?

(2) The Congress and the State legislatures often seem to be lacking in able leadership, frequently timid, and too easily influenced by pressure groups and special interests. Too few Senators and Representatives take long views. Too many look upon politics merely as a means to personal advancement. The American democracy cannot endure a great while without a leadership that retains some aristocratic qualities—particularly a sense of honor, of duty, and of country.

(3) More and more power is concentrated in the legislative and executive branches of the Federal government. Congress, with an immense new bureaucracy of its own, continues to create new executive departments and regulatory agencies and appropriate increasingly huge amounts of money for thousands of Federal programs. Matters previously subject to the jurisdiction of the States, in ever increasing degrees, are pulled into the orbit of Congressional supremacy, often by an unrestricted use of the commerce power, the welfare and spending power, and the enforcement powers of the Fourteenth and Fifteenth amendments. The administrative details, requiring the constant exercise of discretion and broad decision-making authority, are then turned over to a massive Federal bureaucracy. Congress has so many programs, infinitely complex, varied, and demanding, that the members are no longer able to debate the measures they propose in an intelligent and thorough manner.

The executive department also grows larger, and the powers of the President expand as new agencies and programs are added by Congress. Immense new responsibilities around the world greatly amplify the President’s diplomatic and military powers. Many major public decisions are actually made by the President’s army of advisors and personal staff—a body of persons whose names are virtually unknown outside of the White House. The people expect more and more of the President; but any man, however able, has but twenty-four hours in his day, and is not infallible.

(4) With each passing term, the Supreme Court and lower Federal courts handle more and more cases and resolve more and more disputes that were once considered to be within the exclusive domain of the State judiciaries. Both Federal and State courts are immensely overburdened by their case loads, principally because they have more laws to interpret. More judges are also willing to take cases that augment the judicial power. Months, often years, go by before cases are settled; and truly justice delayed is justice denied.

Americans, it is feared, have become a litigious people, always filing lawsuits—many of them seeking to extract material advantages from wealthy individuals and corporations. Judges are made arrogant by the power that they have themselves amassed or has been thrust into their hands by legislatures. Some, instead of exercising self-restraint and confining their duties to the interpretation of the law, stretch the meaning of words in order to reach desired results, becoming law- and policy-makers. And jurisprudence—the philosophy and history of law—is neglected in nearly all the law schools. When the legal system decays, however, the organic law called the Constitution becomes infected, threatening the life of the nation.

(5) The fifty States of the Union have given up to Washington many of their proper responsibilities, and frequently look to that national capital for direction. For many of their functions they have become dependent upon funds from the national treasury. If this decay of State and local energy and resources and imagination continues much longer, America will cease to have a federal system of government except in name, and instead will have stumbled into a centralized structure in which the States have been converted into obedient provinces. But the United States is too big in extent and too populous for a centralized political system to function tolerably well. The American democracy, too, has its roots in local and State government. Under large-scale centralization, real democracy would wither.

(6) America’s cities, nearly all of them, have decayed in all respects over the past half-century. Most Americans cannot remember a time when “inner cities” were good places to live. Jefferson feared that cities would be to the Republic what sores are to the body. We seem to be justifying his fears at the end of the twentieth century. The word civilization is derived from the Latin word for city; and a country in which cities become dreary and crime-ridden presently ceases to have a decent civilization. The most fundamental of civil rights is the right to walk the streets in safety. If the cities become places of ugliness, drug abuse, and terror, is not talk about extending the rights of the accused absurd?

(7) Over the past half-century there has grown in the United States, with alarming speed, that class of people the old Romans (and the modern Marxists) called a proletariat: that is, people who perform no duties, give nothing to the community but their children, and exist at public expense. America’s leading men of 1787 saw a good many people who were poor enough, but they did not have to deal with a true proletariat. Such a class, apathetic but potentially dangerous, has been produced, ironically enough, by America’s technological and economic triumph. The hope of the Framers of the Constitution was that a vigorous and conscientious American people would cherish and refresh that Constitution. A nation of proletarians would require a very different sort of constitution, far less free. Has America today sufficient imagination and intelligence to redeem “the lonely crowd” from proletarian life?

(8) The generation of Americans that framed the Constitution were humanely schooled in classical literature and English literature, history, the sciences of the time, political theory, and religion. It was understood in the early republic that a principal aim of formal education was the building of good character. But today’s public instruction neglects moral knowledge, actually forbids religious teaching, reduces historical studies to a minimum, discards great books in favor of “current awareness,” and shrinks from the task of forming a philosophical habit of mind. From kindergarten up through graduate school, American education nowadays is weighed in the balance and found wanting, by official commissions and foundations’ studies. Study of the Constitution, for one thing, has been shabbily neglected in the typical school, public or private. A people whose schooling has been reduced to a vague familiarity with current events or the mastering of money-making skills may not understand how to keep a good constitution, or even understand its benefits. Can our democratic republic survive if our educational system fails to encourage such values as an informed and virtuous citizenry and an understanding and appreciation of the American constitutional system?

(9) A grim destructive power in the modern world is ideology, or political fanaticism, bent upon the destruction of all existing political, social, and economic institutions and venerable traditions and beliefs. Whether Communist, or Nazi, or ferocious revolutionary of some other persuasion, the ideologue always has a master plan or utopian scheme, based on “scientific” reasoning, to remake the world. He detests constitutional order and aspires to erect a domination of his own party upon the ruins of “bourgeois culture” or “reactionary imperialist powers”—the United States in particular. Ideology is what Edmund Burke called “armed doctrine”—false ideas promoted by weapons.

The Framers of the Constitution were no ideologues, but realistic men keenly aware of the lessons of the past and the limitations of human nature. The political structure they put together was quite free of ideological illusions. Have the Americans of our era enough sound sense to detect the fallacies in such an ideology as Marxism? Would they, like the Americans of 1776, venture their lives, their fortunes, and their sacred honor in defense of their inheritance of liberty, order, and justice? Hard choices lie ahead, even into the twenty-first century.

(10) To sustain a good constitutional order, it is necessary for many people in a society to participate intelligently and voluntarily, with real energy, often at expense to themselves, in public affairs at every level. The Framers took for granted this price that must be paid for the preservation of the commonwealth. What proportion of the American population today takes any active part in practical politics—counting as political activity any action beyond the mere act of voting? Making a small contribution to a campaign fund, attending a local political meeting, giving a friend a ride to an election booth—all of these acts count toward being politically active.

Well, what percentage of registered voters are politically active? In California, the state with the highest level of political activity, about five percent are politically active.

Americans generally have not been political fanatics, and one hopes that they may never be. But to preserve and renew America’s constitutional order, more than five percent of the American people must take some interest in the Constitution of the United States, and make at least some gesture toward active participation in public responsibilities.

The preceding ten problems of American society have been outlined succinctly not to dishearten young men and women, but to suggest the ways in which all of us can help to keep American life worth living. The recognition of difficulties ought not to make us despair.

For the American republic is only two centuries old—young for a nation. The old Roman civilization endured for a thousand years; the Byzantine civilization, centered at Constantinople, for another thousand. English civilization is nine centuries old, at least; Italian and French and Spanish and Germanic civilization, older still.

So there is good reason to expect that the American Republic will endure for many more centuries—supposing enough of us are willing to confront our national difficulties and work intelligently at renewal of our civilization. In Shakespeare’s line, we must “take arms against a sea of troubles, and by opposing end them.”

How do we commence this work of renewal and reinvigoration? One of the better ways is to light what Patrick Henry called “the lamp of experience,” to peer into the future by the light of the past. America’s political past is best apprehended by tracing the development of the Constitution of the United States, from its roots in the ancient world and British institutions, all the way to the constitutional controversies that are so lively today.

What we have offered you in this book is the basic structure of America’s constitutional order. It is up to you to preserve and improve that structure; and you have a lifetime in which to work at it.

SUGGESTED READING

• American Bar Association, Amendment of the Constitution by the Convention Method Under Article V (Chicago: ABA, 1974).
• Herman V. Ames, Proposed Amendments to the Constitution of the United States During the First Century of Its History (New York: Burt Franklin, 1970).
• Richard Bernstein, with Jerome Agel, Amending America (New York: Random House, 1993).
• Judith Best, The Case Against Direct Election of the President: A Defense of the Electoral College (Ithaca, N.Y.: Cornell University Press, 1971).
• Russell L. Caplan, Constitutional Brinkmanship: Amending the Constitution by National Convention (New York: Oxford University Press, 1988).
• Edward S. Corwin, The Constitution and What It Means Today (Princeton: Princeton University Press, 1978).
• Walter Fairleigh Dodd, The Revision and Amendment of State Constitutions (Baltimore: Johns Hopkins University Press, 1910).
• Orrin G. Hatch, The Equal Rights Amendment: Myth and Reality (Provo, Utah: Savant Press, 1983).
• Roger Sherman Hoar, Constitutional Conventions: Their Natural Powers and Limitations (Boston: Little, Brown, 1919).
• John A. Jamerson, A Treatise on Constitutional Conventions: Their History, Powers and Modes of Proceeding (New York: Da Capo Press, 1972).
• David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1997).
• Lester Bernhardt Orfield, The Amending of the Federal Constitution (Ann Arbor: University of Michigan Press, 1942).
• Paul J. Weber and Barbara A. Perry, Unfounded Fears: Myths and Realities of a Constitutional Convention (New York: Praeger, 1989).

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