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

The Lamp of Experience

The Articles of Confederation, America’s first national constitution, were hastily drafted in 1776 amidst the turmoil of the American Revolution. Because of disagreements among the States, ratification was slow in coming. In fact, the Articles did not actually go into effect until 1781. By 1787 there was widespread agreement throughout the country that the Articles had proved to be unsatisfactory and that it was therefore necessary to change them substantially, or possibly to abandon them altogether and write a new constitution. In the end, as we shall see, the latter view prevailed. The members of the Federal (or “Philadelphia”) Convention who met in Philadelphia in 1787 to “revise” the Articles soon came to the conclusion that the defects were so fundamental that a mere revision would not be practical.

One delegate to the Federal Convention who argued strenuously for a new constitution, and then later led the fight for ratification of the one that was finally drafted, was Alexander Hamilton of New York. After the Convention completed its work on September 17, 1787, Hamilton, joined by John Jay of New York and James Madison of Virginia, wrote a series of essays called The Federalist. Written for New York newspapers, and later distributed in other States, the essays in The Federalist urged the people to support the new Constitution and attempted to explain why it was preferable to the Articles of Confederation. Seeking to present themselves as neutral observers, the authors of The Federalist concealed their identity and wrote under the name of “Publius.” Most other writers, whether favoring or opposing the Constitution, did the same. In New York, for example, one of the most effective critics of the new Constitution was an anonymous writer named “Brutus.” From New Hampshire to Georgia a great “war of pamphlets” erupted in the struggle over ratification of the Constitution. Those favoring adoption called themselves “Federalists,” and those opposing ratification were dubbed “Anti-Federalists.” From their very inception, the 85 essays in The Federalist, or what are commonly known as The Federalist Papers, were immediately recognized as superior to other writings on the Constitution produced during the ratification struggle. Taken together, they constituted a brilliant exposition of the entire Constitution—profound, insightful, and instructive. To this day, The Federalist is universally acknowledged as an American classic, as an indispensable source for an understanding and appreciation of the original meaning and purpose of almost every provision of the Constitution. To his lasting fame and credit, it was Alexander Hamilton who organized the collective effort to publish The Federalist and wrote most of the essays.

Speaking for most of the delegates who attended the Philadelphia Convention, and certainly for many of his countrymen as well, Hamilton confronted the basic dilemma Americans faced in 1787. The Articles of Confederation, he wrote in Federalist No. 15, were an invitation to disaster. “We may indeed with propriety be said to have reached almost the last stage of national humiliation,” wrote Hamilton. Something must be done, he said, “to rescue us from impending anarchy.” The nation was steeped in debt to foreigners and its own citizens; valuable American territories were still in the possession of Great Britain; there were no troops or funds to repel invaders; access to the Mississippi River was impeded by Spain; commerce had declined to its lowest point. So great was “the imbecility of our government,” he complained, that foreign governments would not even deal with it. “The evils we experience,” Hamilton concluded, “do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric.”

It was on this basis that the Framers proceeded to construct a new framework of government, casting aside the Articles of Confederation and building a new edifice, from the ground up, on “first principles.” But they did not have to begin from scratch. Before we explore the meaning and substance of those “first principles,” and seek to discover how and why they were incorporated into the Constitution, it is essential that we first examine their origin and historical development. “Not to know what happened before one was born,” as we were reminded long ago by Cicero, the great Roman statesman, “is always to be a child.” American political leaders were hardly ignorant or contemptuous of the past. The Framers respected the wisdom of their ancestors, especially their religious learning. They had been reared on the King James version of the Bible, and at least half of them—being Episcopalians—were well acquainted with the Book of Common Prayer. They also respected the lessons of history and were strongly influenced by historical, legal, and constitutional precedents, both foreign and domestic. They had read a good deal of law and history. They knew something of political philosophy, that great body of learning that seeks to know and understand the first principles of government, and what it takes to establish good government and promote the common good or “general welfare.”

But they were not alienated closet-philosophers trying to found a perfect society or utopian paradise, for they were keenly aware of man’s imperfections as well as his strengths. Almost to a man, the Framers were aware of the intricate process by which human beings had learned to live together, at least in some places and at certain times, in freedom, order, and justice. Those who forget the mistakes of the past, it has been said, are bound to repeat them. The Framers knew of the many mistakes that had been made in the governing of great nations. Above all, they knew the benefits enjoyed in a society in which the claims of authority and the claims of freedom were maintained in a healthy balance. “Power corrupts,” said Lord Acton, the nineteenth-century British political thinker, “and absolute power corrupts absolutely.” The men who wrote the American Constitution would have agreed, but they would have also added: “Yes, but absolute liberty can also corrupt a nation. There is no freedom in anarchy.”

“I have but one lamp by which my feet are guided,” the fiery patriot leader Patrick Henry told his fellow planters of Virginia in 1775, “and that is the lamp of experience. I know of no way of judging the future but by the past.” The confidence and trust expressed by American political leaders in the political principles they applied in making the Constitution and evaluating its merits stemmed not from rootless theories and ideals divorced from experience and reality, but from the conviction that these principles were tried and true—the result of trial and error spanning centuries of political conflict. This was true of both Patrick Henry, the Anti-Federalist leader who opposed the Constitution, and Alexander Hamilton, the Federalist leader who favored it. What divided these gentlemen in 1787, as we shall later learn, was not so much a disagreement over first principles as a difference of opinion over whether those principles had been given proper weight and correctly adapted to the American situation.