(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "The Foundations of American Constitutional Government"

J . 



^^ 



Ihe W^ 
Foundations 1 
of L 




American » 


ill 


Constitutional Mj 


^^^R^ 


Government j^ 


ISpi 







^"'/.ir<''; 






'^p3 



SE PFOHIBE 

iverlo '. 'Sr 
.^XLlTRIPl/Zr^SU VALOR 






The Foundations of 

American Constitutional 

Government 



Compiled by Robert D, Gorgoglione 




The Foundation for Economic Education, Inc. 
Irvington-on-Hudson, New York 



The Foundations of American Constitutional Government 

Copyright © 1996 by the Foimdation for Economic Education, Inc. 

All rights reserved. No part of this book may be reproduced or trans- 
mitted in any form or by any means, electronic or mechanical, including 
photocopying, recording or by any information storage and retrieval 
systems without permission in writing from the publisher, except by 
a reviewer, who may quote brief passages in a review. 

The Foundation for Economic Education, Inc. 
30 South Broadway 
Irvington-on-Hudson, NY 10533 
(914)591-7230 048885^ 

Publishers Cataloging in Publication 

(Prepared by Quality Books Inc.) 

The Foundations of American constitutional government / compiled 
by Robert D. Gorgoglione. — Irvington, N.Y.: Foundation for 
Economic Education, 1995. 
p. cm. 
Includes index. 
ISBN: 1-57246-018-0 

1. United States — Politics and government — 1783-1789. 
2. United States — Constitutional history. I. Gorgoglione, Robert D., 
comp. 

E303.F68 1995 973.318 

QB195-20333 

Library of Congress Catalog Card Number: 95-61369 

First edition, October 1995 

Cover design by Beth Bowlby 

Manufactured in the United States of America 



315. 3 IB 
F77I 



I 






Uj 
Uj 

U 

J" 



V 



Table of Contents 



Acknowledgments 

Introduction by Clarence B. Carson 1 

I. PROLOGUE 

A New Message on the Constitution 7 

Jackson Pemberton 

II. THE BLESSINGS OF LIBERTY 

The Essence of Americanism 19 

Leonard E. Read 

Natural Rights 33 

Ronald Cooney 

Natural Law and the American Tradition 37 

Davis E. Keeler 

The Spirit of Freedom 40 

Robert Bearce 

Individual Rights: The Crumbling Foundation 
of American Goverment 49 

Robert Higgs 



A Tale of Two Revolutions 63 

Robert A. Peterson 

S^ A Law for Governments 75 

\^ Clarence B. Carson 

^ The Fruits of Independence 84 

^ Clarence B. Carson 



III. IN DEFENSE OF LIBERTY 

Against All Enemies 101 

Robert Bearce 



iv / Contents 

IV. "BY THE CHAINS OF THE CONSTITUTION" 

The Political Economy of the U.S. Constitution 127 

Dwight R. Lee 

Constitutional Restraints on Power 145 

Edmund A. Opitz 

Not in the Constitution 153 

George W. Nilsson 

The Constitution and Paper Money 166 

Clarence B. Carson 

Judicial Monopoly over the Constitution: Jefferson's View 176 
Clarence B. Carson 

The General Welfare 188 

Clarence B. Carson 

V. THE FOLLIES OF DEMOCRACY 

Not So Democratic: The Caution of the Framers 199 

M. E. Bradford 

The Meaning of Federalism 207 

Clarence B. Carson 

Freedom and Democracy 219 

John Hospers 

Reasserting the Spirit of 76 233 

W. H. HiUendahl 

V. EPILOGUE 

On the Destiny of Liberty 251 

Jackson Pemberton 

APPENDIX 

Virginia Declaration of Rights 259 

Declaration of Independence 262 

The Constitution of the United States of America 266 

Bill of Rights 278 

Washington's Farewell Address 280 

Index 295 



Acknowledgments 



The Foundation for Economic Education owes special thanks to 
Robert D. Gorgoglione of Willimantic, Connecticut, for urging us to 
print an anthology of essays on the principles of the U.S. Constitution. 
Mr. Gorgoglione's compilation of Freeman articles and historical docu- 
ments forms the basis of this present collection. We appreciate his care 
and diligence in organizing The Foundations of American Constitutional 
Government. 



Introduction 



The Constitution of 1787— otherwise known as the United States 
Constitution— was, and is, a remarkable document. It became even 
more so when the first ten amendments— the Bill of Rights— was 
added to it in 1791. Viewed in the context of the 1770s and 1780s, 
however, the Constitution of 1787 may retain its rank as a notable 
achievement but it was hardly a singular event. Americans had just 
been going through a season of constitution making. After the Declara- 
tion of Independence, most of the former colonies were without consti- 
tutions of their own. Most of them were royal colonies and traced their 
authority from the king of England. All the states, except Rhode Island 
and Connecticut, which had been charter colonies, drew up new con- 
stitutions soon after independence had been declared. And there was 
considerable tinkering with these in the ensuing years. Moreover, the 
first United States constitution, the Articles of Confederation, went 
into effect in 1781. So, Americans had considerable experience at con- 
stitution making before they produced the Constitution of 1787. 

These earlier ventures, however, were but preludes to the docu- 
ment which was known ever afterward as the Constitution of the 
United States. The Articles of Confederation receded into the back- 
ground of the docToment which replaced it. Over the years, state consti- 
tutions came more and more to resemble that of the United States. In 
the course of the nineteenth century, more and more peoples around 
the world came to admire and to imitate features of our Constitution. 
Above all, for Americans it had become the Constitution, its provisions 
hallowed, and its language revered. 

What was so distinctive about this docimient? What made it stand 
out above the numerous constitutions of the nineteenth and twentieth 
centuries? As a document, there are some rather obvious things to be 
said about the Constitution. It is brief, concise, felicitously worded, yet 
surprisingly comprehensive in its description of and provisions for a 
government. Amendments were rare in the nineteenth century; there 
were only three between 1804 and 1913. Thus, it provided an example 
of stability as counterpoint to the argimient that republics were unsta- 
ble. 

But, above all, the United States Constitution is informed by a few 
guiding principles. It established a republican form of government, 
which means ihat those who govern represent the electorate and are 



2 / Clarence B. Carson 

chosen directly or indirectly by them. The people do not govern di- 
rectly but rather indirectly by those chosen to represent them or ap- 
pointed by those so elected. Thus, while the majority rule holds sway, 
its impact is limited by a filtering process in a republic. 

Second, the Constitution brought into being a federal system of 
government for the United States. What this means, essentially, is that 
the powers of government are divided between the general govern- 
ment, on the one hand, and the states on the other. Each has a jurisdic- 
tion over the people within its bounds; each can act directly upon 
those in its jurisdiction, though what matters fall within the jurisdic- 
tion of the United States and of the states are usually different. This 
kind of federal structure was an American invention, invented in the 
course of the making of the Constitution. 

There are other principles informing the Constitution, for ex- 
ample, the separation of powers, but there is one overarching principle 
which guides, makes necessary, and gives cogency to all the rest. That 
principle is limited government. Americans generally, and the Foun- 
ders particularly, believed that if men are to be tolerably free govern- 
ments must be limited. Now it was undoubtedly the case that the 
Constitutional Convention which met in 1787 assembled to provide 
for a more effective general government, one that would at legist be 
adequate "to the exigencies of the Union," eis was said. If they were 
bent on empowering and strengthening the general government, how 
did this square with the principle of limited government? The most 
direct answer is that those who wanted a stronger and more effective 
government came to see that any plan to achieve that would only 
meet with general acceptance if it were more rigorously limited than 
those that preceded it. 

To put it another way, Americans held counterbcdancing views 
about government. In the first place, most men of the time who wrote 
or spoke on the matter professed a love and devotion to liberty. 
George Washington may have described the matter best in his Fare- 
well Address. He wrote, "Interwoven as is the love of liberty with 
every ligament of your hearts, no recommendation of mine is neces- 
sary to fortify or confirm the attachment." They also believed that 
government is necessary, as Thomas Jefferson put it in the Declaration 
of Independence, to secure the rights to "Life, Liberty and the pursuit 
of Happiness." But governments are a great danger to life and liberty, 
as well as to property. This was especially the case, many of them 
thought, where the government is remote from the people governed, 
as they understood any government of the United States would be. 
Government must be limited to forstall tyranny. It must be limited so 



Introduction / 3 

that it not trample on the rights of the people and usurp the powers 
of the states. The limitation of government was the counterbalance to 
the dangers of necessary government. 

The idea of using a constitution to limit the powers of rulers was 
not new in 1787, nor did it originate in America. It went back at least 
to 1215 and the issuance of Magna Carta in England. The germ of the 
idea at least is hoary with age. No more was the idea of written 
constitutions new to America. Aristotle compiled a large number of 
them from countries and city-states on or around the Mediterranean. 
But constitutions have usually been much more adept at empowering 
governments than limiting them. The famed British constitution never 
did get around to limiting the House of Commons. Despite Magna 
Carta, and its reissuances, it took the British more than half a millen- 
nium to effectively limit the monarch. 

The distinctive thing about the United States Constitution is that 
it did about as thorough a job as could be done in limiting those who 
governed. The powers to be exercised were enumerated in the Consti- 
tution, and who was to exercise them listed. Not only are the branches 
of government separate from each other but they are independent of 
one another in their powers to negate government acts. For example, 
either house of the Congress can negate a bill and thus deny its pas- 
sage. The President can independently veto a bill and prevent it be- 
coming a law, though it can be passed into law by unusual majorities 
in both houses. The courts can refuse to apply a law to particular cases 
and it may become a nullity. Congress may pass a law and the courts 
may apply it, but in criminal cases, the President may nullify it by 
pardoning those convicted and sentenced under it. On the other hand, 
most positive action requires the cooperation of two or more branches, 
thus limiting what government can do to agreement by more than one 
branch about what is to be done. 

The Constitution contains lists of specific limitations on both the 
general government and upon the states. For example. Congress is 
prohibited to pass a ''Bill of Attainder or ex post facto Law," ''No Tax 
or Duty shall be laid on Articles exported from any State," "No Money 
shall be drawn from the Treasury, but in Consequences of Appropria- 
tions made by Law " And so on and on the limitations go. The first 

ten amendments are all precise limitations on government. The crown- 
ing one is the tenth which makes about as clear as can be that the 
United States government has only such powers as have been granted 
to it in the Constitution. It says, "The powers not delegated to the 
United States by the Constitution, nor prohibited by it to the States, 
are reserved to the States respectively, or the people." There is a list 



4 / Clarence B. Carson 

of things which the states are prohibited to do in Article 1, Section 10 
of the Constitution, such as, "coin Money, emit Bills of Credit, make 
any Thing but gold and silver Coin a Tender in Payment of Debts," 
and the like. 

In sum, the great and overarching principle informing the Consti- 
tution is that of limited government. These limitations are there not 
only in specific restrictions but also in the separation and indepen- 
dence of the branches. The assumption is that they will be jealous of 
their powers and guard against the encroachment of others upon 
them, thus limiting government. The same was supposed to be the 
case for the basically independent state governments. They had come 
into the union by their own decision, had formed their own govern- 
ments, had their own constitutions and were expected to restrain the 
general government by the jealous assertion of their own powers. 
Politically, the people were linnited by the Constitution, which was 
difficult to amend, and those who governed were not only limited by 
the Constitution but also by the electorate who could deny them 
reelection. 

However well the Constitution might be drawn and however care- 
fully the government might be limited, the Founders doubted that 
liberty could prevail if the generality of govemers and electorate be- 
came corrupt. And today, we must regretfully note that our Constitu- 
tion no longer works as it was intended to do. It has been bent out of 
shape, particularly in the twentieth century, by those who would con- 
centrate all power in the general government and use that power to 
seduce and subdue the populace. Even so, the great principles are still 
there in the written Constitution, awaiting a sustained effort to limit 
government and free the people. 

—Clarence B. Carson 



I. PROLOGUE 



A New Message on the Constitution 
by Jackson Pemberton 



There are those among you who heap fault upon your heads, and 
declare you derelict for your shaUow knowledge of the basis and 
workings of your government. While it is true that you evidence a 
dangerous lack of understanding of those most significant principles 
of your own prosperity and political security, yet I shall not judge 
you, for I know not but that I myself might have had the same fault 
had I been bom in your day. Had we enjoyed the peace and wealth 
you have now even in all your troubles, we may have slumbered as 
well as you. Then too, our condition was such that our choices were 
painfully clear; when we received the report that King George had 
said, ''The die is cast, the colonies must submit or triumph," we recog- 
nized that as a clear declaration of war. 

In your day, those who would draw honor and power to them- 
selves have confused your minds with conflicting reports, inconsistent 
principles, and deliberate deception; all of which imbues you with a 
feeling of hopelessness and indifference. Nay, while I must admit your 
apathy, yet tiiere is cause for it; which makes a declaration of guilt an 
uncertain pronouncement. 

One matter is clear however: should you remain in your present 
condition; filled with discontent and disdain for your government, yet 
surrounded by the information and facilities needed to reform and 
restore it; and then go on about your lives with a halfhearted hope 
that things will somehow improve; then another time will reveal your 
guilt, and it will be said that you, with a little work could have discov- 
ered the technique of restoring a good, old government to its former 
brilliance, but you were too lazy to have the honor. 

You have much reason to be discouraged, even frightened; but 
you have more to be confident. You are surrounded by troubles and 
problems, but your most crucial illness is the easiest to cure, and while 
it is virtually hidden from you, I see it before I recognize any other. 
You are ignorant! 

In this essay the author draws upon the extensive collection of the thoughts of the 
Founding Fathers and lets them speak to us relative to the problems we face in the 
United States today. "On the Constitution," originally published in the July 1976 Free- 
man, was part of a Bicentennial Freeman series by Mr. Pemberton. 



8 / Jackson Pemberton 

You know neither the source nor the substance of your rights, but 
you know they are being violated. You do not know the proper 
bounds of your government's operation, but you know it has gone 
beyond them. You do not know the foundation of a stable currency, 
but you know yours is floating out of your hands. You do not know 
the rules of free enterprise, but you know your businesses are being 
crippled. You do not know the correct principles of foreign trade and 
alliances, but you know you have been made the fool in your foreign 
affairs. You do not know the Constitution, but you know that when it 
was followed diligently, it rewarded you abundantly with peace and 
prosperity. 

Yes, you are ignorant, and while it is understandable, yet the day 
of reasonable excuse is gone, for you are aware of your danger. It is 
the nature and extent of your trouble and the way out of it that still 
escapes you; but you will find to your delight, that only a little effort 
is required to rid yourselves of the ill effects of that deficiency which 
now dampens your spirits and clouds your minds. Only a little effort 
for such wonderful rewards! How a tiny lamp dispels a great dark- 
ness! 

There is a feeling generally among you that the workings of gov- 
ernment are extremely complicated and the guidance of it must be left 
to those who would like you to worship their political wisdom, for 
they love to impress you with their vast intelligence, yet if they were 
but half so wise as they pretend, you would have no need to hear from 
me. The full truth of the matter is that the basic principles of liberty 
and free enterprise are simple; but these political pretenders have 
manipulated them so much, that they, more than anything else, have 
confused the issues, bewildered themselves, and entangled all of you 
in their shortsighted expediency programs. 

We knew, even as you do today, what it was that we did not want 
in our government. We had had our fill and more of oppression on the 
one hand and anarchy on the other. The Almighty had thus trained 
us in the evils of both extremes through our experience with the tyr- 
anny of the Crown and the turmoil of the Articles of Confederation. 

Oh, those were dark days! The colonies had struggled as partners 
and a real sense of unity had emerged from our common effort to 
secure our liberty, but in a few short years we were writing to one 
another in the discouraged tones of forlorn patriots who had discov- 
ered to their dismay and alarm that the nation was not at all prepared 
for its new freedom and that too little government was as despairing 
an evil as too much. 

In those dismal days between the routing of the British and the 



On the Constitution / 9 

launching of the Constitution, amidst a disastrous inflation and fright- 
ening civil turmoil, some of us assembled in Philadelphia in conven- 
tion. As we were only getting under way, one of the delegates said 
that measures to aUeviate existing conditions and repairs to current 
laws would be more acceptable to the people than any thoroughgoing 
actions. At that, the President of the Convention, Mr. Washington, 
arose and declared earnestly, "If, to please the people, we offer what 
we ourselves disapprove, how can we afterward defend our work? 
Let us raise a standard to which the wise and the honest can repair; 
the event is in the hand of God.'' Thus he crystallized our desire to 
build a new government upon liberty and strength, and sent us on the 
long, toilsome task of creating a new national charter. 

We determined to form a government which would at once be 
able to discharge its necessary functions, but which, even imder the 
hands of ambitious and self-seeking men, would be virtually unable 
to encroach upon the native rights of the citizens. That we were suc- 
cessful is evidenced by the fact that it has required nearly a century 
for men of precisely that stamp to twist and violate that Constitution 
to bring you to your present condition of rising alarm. But I find still 
deeper satisfaction in the knowledge that in spite of the awesome 
control now wielded by your government, yet you have in the Consti- 
tution all the tools you require to bring it carefully down to its proper 
size and function, for that was one of our goals. We sought for a 
golden mean between anarchy and oppression, for contrivances which 
would give government its requisite authority, yet place fixed and 
enduring bounds upon the activities that men would seek to have it 
perform for their own selfish benefit. 

It was toward that objective we strove in the miserable heat of the 
summer of 1787. For more than a month we expounded upon one 
principle after another with some contention and seeming little pro- 
gress. Then, near the end of June, in the midst of a hotly contended 
issue, our eldest statesman made a speech which both shamed and 
inspired us. 

Mr. Franklin said, ''The small progress we have made after four 
or five weeks is, methinks a melancholy proof of the imperfections of 
Human understanding. We indeed seem to feel our own want of po- 
litical wisdom, since we have been running about in search of it in this 
situation, groping as it were in the dark to find political truth. How 
has it happened sir, that we have not hitherto once thought of humbly 
applying to the Father of Light to illuminate our understanding? I 
have lived, sir, a long time and the longer I live, the more convincing 
proofs I see of this truth, that God governs in the affairs of men. And 



10 / Jackson Pemberton 

if a sparrow cannot fall to the ground without His notice, is it probable 
that an empire can rise without His aid?" 

Mr. Franklin proposed that a clergyman be retained as chaplain 
for the Convention, but his motion could not pass as we had no funds. 
Nevertheless, the occasion served to bring us up short, and to cause 
us to recognize and to remember our dependence upon the Almighty. 
Had He not guided and inspired our generals? Was it not He who 
answered our prayers with the hurricane which demolished the British 
fleet in Boston harbor before the war had even begun? Had not every 
step by which we had advanced been distinguished by some token of 
providential agency? How soon we forget! 

From the day of Mr. Franklin's observation forward, we were led 
to an understanding of the mechanisms necessary to the preservation 
of liberty under the effective but limited federal plan. In order to 
thwart the designs of self-seeking men, we set up three branches of 
government, each equal in power but separate in authority and func- 
tion, and each with certain limited but effective sanctions upon the 
other two. 

We reserved most of the powers of government to the states, thus 
dividing those powers and placing them as close as possible to the 
inspection and control of the people, for history had abundantly 
shown that centralization of power and tyranny were but different 
titles of the same monster. There was no question but that the plan 
was somewhat inefficient. We desired that, for we were well aware 
that the most efficient government is despotism. The deficiencies of 
decentralized government (which are not so extensive as your Tories 
would have you believe) is but a small price for the people to pay for 
control of their government. 

It has been reported among you that we founded your govern- 
ment upon the emergencies of our day, and that our work was the 
conclusion of manifold compromises. While it is true that each of us 
brought our personal objectives and opinions to the Convention, we 
found that we agreed that most of those goals were not only worthy 
but necessary to the security of the nation. 

There was great unity in our purpose; our compromise was be- 
tween too much and too little government. The lengthy deliberations 
were not the result of disunity, but a meticulous searching for correct 
principles among governments from the most ancient to our own time. 
When we had finished our work a wonderful feeling of harmony and 
peace came over us; we knew we had been instruments in bringing a 
miracle into being. 

The story that "the Constitution was designed for an eighteenth- 



On the Constitution / 11 

century agrarian society/' also deserves attention. That is a myth I now 
take pleasure to debunk! 

The Constitution is based on three timeless truths. First, it is 
founded on the fact that it is necessary in a society, that the citizen 
must either control himself by his own moral self-discipline, or he 
must be restrained so that he cannot abuse his liberty. Second, it is the 
nature of man to seek recognition, then influence, and then power in 
his relationships to his fellows. Third, it is the nahire of man to work 
untiringly for himself when he is confident in the usefulness of his 
effort. Those are the footings of the Constitution and there is nothing 
there that is either eighteenth century or agrarian! To say that we 
designed the national charter for an agricultural economy is to display 
a palpable desire to deceive (or a profound ignorance, for you will 
notice that those who promulgate that fable would replace constitu- 
tional principles with laws which would give them great authority 
over you. Thus do their words reveal their motives. 

Nay, we founded the Constitution upon an exquisite recognition 
of one great decisive reality; human nature: a recognition of the dual 
disposition of man: his propensity for good and his capacity of evil. 
Our first and foremost consideration was to place the forces of human 
nature in a framework which would cause those forces to lift man, to 
protect and release his conscience, his will, his talents, and his noble 
desires, and at the same time would discourage and punish him in his 
vices. That this mechanism was successful is written in the glories of 
your history. I do not claim perfection for it, but I will justly assert 
that it is the most nearly perfect system for the elevation of man that 
has ever existed among governments. ^ 

But let me explain those three footings of the Constitution a little 
more, for we are at the very basis of a good government. 

First, it was abundantly clear to us that if the time should come 
when the citizens would turn from morality and good religion, they 
would also turn from liberty; for if man is to be free, he must control 
himself lest his society circumscribe his liberty to protect itself from 
his abuse. It was therefore our desire that religion should be thor- 
oughly protected and even encouraged. That does not mean that we 
wanted any particular religious philosophy to have the advantage 
over another, but that the citizens' rights to complete liberty of private 
and public belief and practice should in no way be infringed; for if 
those rights be trammeled by government then it establishes the state 
philosophy of irreligion, which must signal the beginning of the de- 
moralization of the people and the accompanying loss of liberty. I shall 
discuss this matter in greater detail when we examine the Bill of 



12 / Jackson Pemberton 

Rights. It will suffice to say here that we intended, through careful 
protection of religion, to secure the only enduring basis for liberty: 
individual morality and self-control. Secondly, we set up the plan of 
government so that its powers were restricted, separated, and dis- 
persed throughout the states in order to defeat the tendency of men 
to consolidate power and ordain themselves rulers over the people. 
Then we applied the checks and balances to set each branch of govern- 
ment as a watchman over the other two, and gave each certain pre- 
rogatives so as to place the ambition of self-aggrandizing men in oppo- 
sition to the ambition of other similar men. Thus we placed himian 
nature in control of human nature, and gave the states and the people 
the final determination, by ballot, of which men would be allowed to 
bring their natures into the government. 

Finally, we recognized that man is most inclined to produce an 
abundance when his property rights are held inviolate. Man, by na- 
ture, will strive with great energy and innovation to improve himself, 
his circumstances, and his relationship to his neighbors, so long as he 
has confidence that he will be allowed to enjoy the fruits of his labors. 
But as soon as he loses that assurance, so soon will he begin to do as 
little as may scarcely suffice him. Our study of history testified that 
excessive taxation and regulation, an infringement of property rights, 
was ever the cause of slackening productivity, while the freest econo- 
mies were the greatest source of plenty. 

There you have founding principles of the most successful govern- 
ment on the records of civilizations, and they, in turn, are based upon 
that most crucial reality: human nature. That is the groundwork of the 
Republic; but in spite of all our careful effort, we knew that it was not 
sufficient to merely launch the ship of state correctly, it needed to be 
tended by an alert, informed, and jealous citizenry. But history, like 
nature, travels in cycles; both liberty and oppression contain the seeds 
of their own destruction. Our success has brought the security which 
put you to sleep. 

Now, basking in the dimming brilliance of the lights of liberty, you 
have been neither vigilant nor informed, and only recently have you 
begim to realize the correctness of your rising jealousy for your rights. 
Let those feelings of jealousy well up within you and cause you to alert 
yourselves to your true condition. 

Your executives have taken upon themselves to form foreign alli- 
ances and make domestic regulations without proper authority. They 
have violated your most fundamental law. Your judiciary has ignored 
the amending process and altered the meaning and intent of the Con- 
stitution they were sworn to defend. They have betrayed your most 



On the Constitution / 13 

fundamental law. Your congress has been watchful, yet not of the 
encroachments of the other two branches, but for opportunity to gain 
influence by purchasing your favor with your own money. They have 
ignored your most fundamental law. And you— you— seek for a rem- 
edy while it stares you in the face! You have lost the vision of your 
most fundamental law. Let me show you. You call the national charter 
"the Constitution of the United States/' and that simple phrase con- 
tains both the totality of your plight and the seeds of your salvation; 
for in those six words you reveal your feeling that both you and your 
law are subject to your government. You are not the slave of govern- 
ment at all, but because you think so, you may as well be! Nay! The 
Constitution is your servant and the master of your government. It is 
not the Constitution of the United States, it is the Constitution of the 
people, and for the United States! It is not only the law by which you 
are governed, it is the law by which you may govern your govern- 
ment! It is not the law by which high-handed politicians may impose 
their collective will upon you, it is for you to impose it upon them! It 
does not belong to the government, it belongs to you! It is yours! It is 
yours to enforce upon your government! It is yours to read to those 
self-wise do-gooders; and if you will hold it high in your hand, they 
will quail and flee before it like the cowardly knaves they are, while 
those who are your true friends will rejoice in your new commitment. 
And so may you divide the government goats from the statesmen 
sheep; but beware of the curming deceit of those who pretend to serve 
you while they betray your trust. Civil government has always suf- 
fered the intrusions of self-seeking men, and while they may not al- 
ways be detected, they may at least be controlled. And that is part of 
the miracle of the Constitution. Yes, you bear a multiplicity of prob- 
lems: usurpations, alterations, violations, centralizations, plundering 
of the rich, corruption of the poor, inequities in the courts, irresponsi- 
ble economic policies, disastrous foreign stratagems, and on and on. 
It is overwhelming, bewildering, and discouraging; a disease seeming 
beyond remedy. It is clear that the individual citizen has no hope of 
discovering all the errors, to say nothing of forming and applying 
corrections. What can one man do? Ah! There are miracles in the 
Constitution! There is wisdom in the Republic! It is not necessary that 
you understand all the intricacies of your regulatory agencies, your 
welfare bureaucracies, and all the legal vagaries. Only four things are 
required of you, and although each of them demands deliberate effort, 
they are easily within your reach and crucial to your political salva- 
tion: 

1. See that you are a blessing to your society; furnish your own 



14 / Jackson Pemberton 

livelihood; associate only with that which is noble and uplifting; obey 
the law; give your government no excuse to make new laws or to 
infringe your rights. 

2. Study the Constitution until you know its fundamentals in the 
spirit we intended; we were careful to an extreme, you will not be 
disappointed. 

3. Seek out and elect wise, successful, honest, and most of all, 
humble men for officers; your system fails you because your politi- 
cians seek office, but the offices are yours to fill; therefore, you must 
seek out the men you desire to serve you. 

4. Watch your public servants, encourage them, counsel them, see 
that they understand the Constitution and keep the oath of their of- 
fices; when they show themselves approved, honor and trust them; 
above all, be charitable with them especially now while their burden 
is heavy. Only a part of them deserve your disdain. 

You have every reason to take heart. The basics of good govern- 
ment are not difficult at all. We managed to acquire them in our day, 
and although we were the most educated men of our time, our knowl- 
edge was vastly inferior to yours (we only looked on the moon). Once 
you have gotten a comprehension of the fundamentals of free govern- 
ment, you will have a standard to which you may hold any of the 
proposals of your day and ascertain whether you ought to support or 
oppose them. 

So simple it is! Have faith; act; and you will soon behold the 
miracle! Can you see that the Constitution we formed by the light of 
the divine lamps of liberty can save both you and itself? Is that not a 
miracle? It is a magnificent thing, our ship of state; but you must tend 
the rudder and mend the sails. 

There are voices in the land even now which expand upon the 
vices of your government in order to defame the Constitution. The 
words go forth from those who fancy themselves worthy to rule you 
that you must drastically change it or even replace it if you are to 
survive the crises of your time. With what will you replace it? Our 
nation is still far and away the freest under heaven. Have you forgot- 
ten the source of so great a liberty? To whom will you turn for an 
improvement upon the inspiration of Almighty God? Do you know 
your own history? 

When the government was held within its proper bounds by the 
chains of the Constitution our nation was the fulfillment of the vision 
of liberty that dwelt in the hearts of freedom-loving people in every 
quarter of the globe. Will you now continue your course from such 
freedom back to oppression? Will you cast aside that instrument which 



On the Constitution / 15 

has given greater liberty to the hearts and hands of more of the chU- 
dren of God than any combination of times and governments you may 
please to conceive? A supreme act of folly at best; and a faU into the 
pits of despotism at worst! Nay! Away with that! The nation has 
already come from under the hands of a tyrarmical aristocracy into the 
light of liberty, and now drifts again into the clouds of oppression. 
Then listen together! Let the cry go up! Restore the Constitution! Re- 
store the free exercise of the rights of the people! Reverse the drift! Put 
down again the anchor of liberty and fasten to it the ship of state by 
the chains of the Constitution! Let every man learn his duty and per- 
form it with diligence! 

Is there a cause more just, a goal more worthy, a need more dear, 
or a pastime more sweet than this; to bind up the wounds of the 
national charter, to reassert the natural rights of man, and to secure 
the blessings of liberty to yourselves and your posterity? You — my 
Sons of Liberty; ponder it in your hearts, speak of it in your gatherings, 
and pray for it in your secret chambers! Let the cry go forth through- 
out the land and echo across a world groaning and starving under the 
crush of tyrants: restore the rights of man! 

Oh hear the voice of your Father! Rise up my people and lift up 
your heads! Come out of darkness into the rightful day of your glory. 
Secure and cherish the liberty wherewith we made you free! You are 
free; for we declared you free and bought your liberty with our blood! 

1. This medianism is rather hke a ratchet and pawl wherein upward movement is 
completely free and downward movement is stopped by the pawl. The Constitution has 
thus resulted in the citizens lifting their society to unprecedented heights. Your upward 
progress has lately been seriously impeded, however, by the stifling effects of too much 
government (which discourages personal initiative in the citizens), and by the "libera- 
tion" of the baseness of man which even now is disengaging the pawl and allowing 
your civilization to slide, nearly unhindered, back down to the meanness of anarchy 
which resembles the uncultured, uneducated, and undisciplined tribes of primitive so- 
cieties. 



11. THE BLESSINGS OF LIBERTY 



The Essence of Americanism 
by Leonard Read 



Someone once said: It isn't that Christianity has been tried and 
found wanting; it has been tried and found difficult— and abandoned. 
Perhaps the same thing might be said about freedom. The American 
people are becoming more and more afraid of, and are running away 
from, their own revolution. I think that statement takes a bit of docu- 
mentation. 

I would like to go back, a little over three centuries in our history, 
to the year 1620, which was the occasion of the landing of our Pilgrim 
Fathers at Plymouth Rock. That little colony began its career in a 
condition of pure and unadulterated communism. For it made no 
difference how much or how little any member of that colony pro- 
duced; all the produce went into a warehouse under authority, and 
the proceeds of the warehouse were doled out in accordance with the 
authority's idea of need. In short, the Pilgrims began the practice of a 
principle held up by Karl Marx two centuries later as the ideal of the 
Communist Party: From each according to ability, to each according 
to need — and by force! 

Now, there was a good reason why these communalistic or com- 
munistic practices were discontinued. It was because the members of 
the Pilgrim colony were starving and dying. As a rule, that type of 
experience causes people to stop and think about it! 

Anyway, they did stop and think about it. During the third winter 
Governor Bradford got together with the remaining members of the 
colony and said to them, in effect: ''This coming spring we are going 
to try a new idea. We are going to drop the practice of 'from each 
according to ability, to each according to need.' We are going to try 
the idea of 'to each according to merit.'" And when Governor 
Bradford said that, he enimciated the private property principle as 
clearly and succinctly as any economist ever had. That principle is 
nothing more nor less than each individual having a right to the fruits 
of his own labor. Next spring came, and it was observed that not only 

Leonard Read (1898-1983) was the founder of The Foundation for Economic Edu- 
cation and the author of many books and articles. This article was delivered as a speech 
in December 1961 and was subsequently published in the November 1983 issue of The 
Freeman. 



19 



20 / Leonard E. Read 

was father in the field but mother and the children were there, also. 
Governor Bradford records that "Any generall wante or famine hath 
not been amongst them since to this day." 

It was by reason of the practice of this private property principle 
that there began in this country an era of growth and development 
which sooner or later had to lead to revolutionary political ideas. And 
it did lead to what I refer to as the real American revolution. 

Now, I do not think of the real American revolution as the armed 
conflict we had with King George m. That was a reasonably minor 
fracas as such fracases go! The real American revolution was a novel 
concept or idea which broke with the whole political history of the 
world. 

Up until 1776 men had been contesting with each other, killing 
each other by the millions, over the age-old question of which of the 
numerous forms of authoritarianism — that is, man-made authority — 
should preside as sovereign over man. And then, in 1776, in the frac- 
tion of one sentence written into the Declaration of Independence was 
stated the real American Revolution, the new idea, and it was this: 
"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 was it. This is the essence of Ameri- 
canism. This is the rock upon which the whole "American miracle" 
was founded. 

This revolutionary concept was at once a spiritual, a political, eind 
an economic concept. It was spiritual in that the writers of the Declara- 
tion recognized and publicly proclaimed that the Creator was the 
endower of man's rights, and thus the Creator is sovereign. 

It was political in implicitly denying that the state is the endower 
of man's rights, thus declaring that the state is not sovereign. It was 
economic in the sense that if an individual has a right to his life, it 
follows that he has a right to sustain his life — the sustenance of life 
being nothing more nor less than the fruits of one's own labor. 

It is one thing to state such a revolutionary concept as this; it's 
quite another thing to implement it— to put it into practice. To accom- 
plish this, our Founding Fathers added two political instruments— the 
Constitution and the Bill of Rights. These two instruments were essen- 
tially a set of prohibitions; prohibitions not against the people but 
against the thing the people, from their Old World experience, had 
learned to fear, namely, over-extended government. 



The Essence of Americanism / 21 
Benefits of Limited Government 

The Constitution and the Bill of Rights more severely limited govern- 
ment than government had ever before been limited in the history of 
the world. And there were benefits that flowed from this severe limita- 
tion of the state. 

Number One, there wasn't a single person who turned to the 
government for security, welfare, or prosperity because government 
was so limited that it had nothing on hand to dispense, nor did it then 
have the power to take from some that it might give to others. To 
what or to whom do people turn if they cannot turn to government 
for security, welfare, or prosperity? They turn where they should 
turn — to themselves. 

As a result of this discipline founded on the concept that the 
Creator, not the state, is the endower of man's rights, we developed 
in this country on an imprecedented scale a quality of character that 
Emerson referred to as ''self-reliance" All over the world the American 
people gained the reputation of being self-reliant. 

There was another benefit that flowed from this severe limitation 
of government. When government is limited to the inhibition of the 
destructive actions of men — that is when it is limited to inhibiting 
fraud and depredation, violence and misrepresentation, when it is 
limited to invoking a common justice — then there is no organized 
force standing against the productive or creative actions of citizens. 
As a consequence of this limitation on government there occurred a 
freeing, a releasing, of creative human energy, on an imprecedented 
scale. 

This was the combination mainly responsible for the "American 
miracle," founded on the belief that the Creator, not the state, is the 
endower of man's rights.This manifested itself among the people as 
individual freedom of choice. People had freedom of choice as to how 
they employed themselves. They had freedom of choice as to what 
they did with the fruits of their own labor. 

But something happened to this remarkable idea of ours, this revo- 
lutionary concept. It seems that the people we placed in government 
office as our agents made a discovery. Having acquisitive instincts for 
influence and power over others — as indeed some of us do — they 
discovered that the force which inheres in government, which the 
people had delegated to them in order to inhibit the destructive ac- 
tions of man, this monopoly of force could be used to invade the 



22 / Leonard E. Read 

productive and creative areas in society— one of v^hich is the business 
sector. And they also found that if they incurred any deficits by their 
interventions, the same government force could be used to collect the 
wherewithal to pay the bills. I would like to suggest to you that the 
extent to which government in America has departed from the original 
design of inhibiting the destructive actions of man and invoking a 
common justice; the extent to which government has invaded the pro- 
ductive and creative areas; the extent to which the government in this 
country has assumed the responsibility for Hxe security, welfare, and 
prosperity of our people is a measure of the extent to which socialism 
and commimism have developed here in this land of ours. 

The Lengthening Shadow 

Now then, can we measure this development? Not precisely, but 
we can get a fair idea of it by referring to something I said a moment 
ago about one of our early characteristics as a nation — individual free- 
dom of choice as to the use of the fruits of one's own labor. If you will 
measure the loss in freedom of choice in this matter, you will get an 
idea of what is going on. 

There was a time, about 120 years ago, when the average citizen 
had somewhere between 95 and 98 percent freedom of choice with 
each of his income dollars. That was because the tax take of the gov- 
ernment — federal, state, and local — was between 2 and 5 percent of 
the earned income of the people. But, as the emphasis shifted from 
this earlier design, as government began to move in to invade the 
productive and creative areas and to assume the responsibility for the 
security, welfare, and prosperity of the people, the percentage of the 
take of the people's earned income increased. The percentage of the 
take kept going up and up and up until today it's not 2 to 5 percent. 
It is now over 35 percent. 

Many of my friends say to me, "Oh, Read, why get so excited 
about that? We still have, on the average, 65 percent freedom of choice 
with our income dollars." 

I would like to interpolate here a moment and say that we ought 
to be careful how we use that term, "on the average." Take a person 
who works 40 hours a week, who goes to work at 8:00 o'clock in the 
morning, takes an hour off for lunch, works Monday through Friday. 
That's 40 hours. The average person in this country has to work all 
Monday and until 2:15 on Tuesday for the government before he can 
start earning for himself! 

But, if the individual has been extraordinarily successful, he finds 



The Essence of Americanism / 23 

that he has to work aU day Monday, Tuesday, Wednesday, Thursday, 
and untU noon on Friday for the government before he can start earn- 
ing for himself. 

Nonetheless, on the average, we do have 65 percent freedom of 
choice with our earned income. But, please take no solace from this 
fact for It has been discovered, as research work has been done on the 
fiscal behavior of nations covering a period of many centuries— this 
is a very important point— that whenever the take of the people's 
earned income by government reaches a certain level— 20 or 25 per- 
cent—it is no longer poUticaUy expedient to pay for the costs of gov- 
ernment by direct tax levies. Governments then resort to inflation as 
a means of financing their ventures. This is happening to us now! By 
"inflation" I mean increasing the volume of money by the national 
government's fiscal policy. Governments resort to inflation with popu- 
lar support because the people apparently are naive enough to believe 
that they can have their cake and eat it, too. Many people do not 
realize that they caimot continue to enjoy so-called "benefits" from 
government without having to pay for them. They do not appreciate 
the fact that inflation is probably the most unjust and cruelest tax of all. 

Methods of Inflation 

There are numerous ways governments have inflated. You may 
recall reading in your history books about coin clipping. That was 
where the sovereign called in the coin of the realm and clipped off the 
edges. He kept the edges and returned the smaller pieces to the own- 
ers. That was a good stunt until the pieces got too small to be returned. 

During the French revolutionary period, the government got itself 
into dire financial straits and began to issue an irredeemable paper 
money known as "assignats" secured not by gold but by confiscated 
church properties. Well, of course, France went bankrupt under that. 

In Argentina, a situation with which I am reasonably familiar, the 
policy of the national goverrunent has been to spend about 100 billion 
pesos a year. But all they can collect by direct tax levies are 50 billion 
pesos a year. How do they handle that? Very simple. They just print 
50 billion pesos a year. You don't have to be a great economist to 
realize that when you increase the volume of money, everything else 
being equal, the value of money goes down. And when the value of 
money goes down, all things being equal, prices tend to rise. 

You can imagine what has happened to bank accounts, insurance, 
social security, and to all forms of fixed income in Argentina. They are 
practically worthless. 



24 / Leonard E. Read 

Now in this country, we have a method of inflation which has one 
distinguishing merit. It is so complicated that hardly anyone can un- 
derstand it. 

What we do here is monetize debt. The more we go in debt the 
more money we have. Since we started our program of monetizing 
debt and deficit financing, we have enormously increased the quantity 
of our money. You have observed that our dollar isn't worth quite as 
much as it used to be. Perhaps you have also observed that prices are 
tending to increase. 

The Russians, in my judgment, have the most honest system of 
dishonesty. There the government compels the people to buy govern- 
ment bonds. And then, after the people have bought the government 
bonds, the government cancels them. There are quite a number of 
Russians who are aware that some sort of chicanery is going on. 

Frankly, I wish we were using this system, because then more 
people would understand the significance of inflation. If we were in- 
flating this crudely, our people wouldn't be fooled as they are now. 

What I am trying to say is this: Inflation is the fiscal concomitant 
of socialism or the welfare state or state interventionism — caD it what 
you will. Inflation is a political weapon. There are no other means of 
financing the welfare state except by inflation. 

So, if you don't like inflation, there is only one thing you can do: 
assist in returning our government to its original principles. 

One of my hobbies is cooking and, therefore, I eim familiar with 
the gadgets around the kitchen. One of the things with which I am 
familiar is a sponge. A sponge in some respects resembles a good 
economy. A sponge will sop up an awful lot of mess; but when the 
sponge is saturated, the sponge itself is a mess, and the only way you 
can make it useful again is to wring the mess out of it. I hope my 
analogy is clear. 

I want to say a few more things about inflation because it is par- 
ticularly relevant to this country. To do this I want to take a look at 
somebody else because it's always difficult to look at ourselves. Let's 
take a look at France, which in numerous respects has resembled the 
United States economically. 

French Experience 

France began this thing I am talking about— that is, government 
invasion of productive and creative areas, government assuming the 
responsibility for the security, welfare, and prosperity of the French 
people— just 47 years ago, in 1914. 



The Essence of Americanism / 25 

If my previous contentions are correct, the French franc should 
have lost some of its purchasing power in these 47 years for, I have 
argued, state intervention can be financed only by increasing the vol- 
ume of the money and such increases result in a decline of the circulat- 
ing medium's value. Thus, the franc should have declined in value. 
How much? 

The French franc has less than one-half of one percent of the pur- 
chasing value it had 47 years ago, or to put it another way, the franc 
has lost more than 9972 percent of its value in these few years, and by 
reason of inflation brought about by government intervention. 

In Paris, during World War I, I bought a dinner for 5 francs, then 
the equivalent of the 1918 dollar. I didn't get to Paris again until 1947. 
I took a friend to lunch, admittedly at a better restaurant than the one 
I went to as a soldier boy. But I didn't pay 20 or 30 or 50 francs for the 
two luncheons. I paid 3,400 francs! I was there two years later with 
Mrs. Read, same restaurant, same food, because I wished to compare 
prices. It wasn't 3,400 but 4,100! Recently, when I was in Paris, the 
price for the same two luncheons was about 6,000 francs. 

Visualize with me, if you can, a Frenchman back in the year 1914. 
Let's say he was in his late teens. A forethoughtful lad, he was looking 
forward to the year of 1961 when he would reach the age of retirement. 
So, at that time he bought a paid-up annuity, one which would return 
him 1,000 francs a month beginning January 1961. Well, back then he 
could have eaten as well on 1,000 francs as Grace Kelly's husband. But 
my doctor friends are of the opinion that no one can exist on only one 
meal every 30 days. That is all 1,000 francs will buy today, and that 
would be a meal about one-third the quality that any of us would buy 
were we in France at this time. 

"Creeping" or "Galloping"? 

Inflation, in popular terms, is divided into two types. There is 
what is called "creeping inflation," and what is called "galloping infla- 
tion." "Creeping inflation" is supposed to be the type that we are now 
experiencing. 

I don't think the term is quite lusty enough to describe a dollar 
that has lost somewhere between 53 and 62 per cent of its value since 
1939. 

"Galloping inflation" is the type that went on in Germany during 
the years after World War I, in France after the revolutionary period, 
in China recently, and in the Latin American countries today. Here is 
an example of what I mean. 



^roDledad de la Bibllotecoi 



26 / Leonard E. Read 

I hold in my hand the ciirrenq^ of Bolivia. This little piece is 10,000 
Bolivianos. In 1935 this piece of paper was worth 4,600 present-day 
dollars. Do you know what it's worth now? Eighty cents! That's what 
you call "galloping inflation." It was all brought about — ^they didn't 
have any wars — ^by government interventionism. 

Now then, what I want to suggest is that inflation in this country 
has ever so many more catastrophic potentials than has ever been the 
case in any other country in history. We here are the most advanced 
division-of-labor society that has ever existed. That is, we are more 
specialized than any other people has ever been; we are further re- 
moved from self-subsistence. 

Indeed, we are so specialized today that every one of us — every- 
body in this room, in the nation, even the farmer — is absolutely depen- 
dent upon a free, iminhibited exchange of our numerous specialties. 
That is a self-evident fact. 

Destroying the Circulatory System 

In any highly specialized economy you do not effect specialized 
exchanges by barter. You never observe a man going into a gasoline 
station saying, "Here is a goose; give me a gallon of gas." That's not 
the way to do it in a specialized economy. You use an economic 
circulatory system, which is money, the medium of exchange. 

This economic circulatory system, in some respects, can be likened 
to the circulatory system of the body, which is the blood stream. 

The circulatory system of the body picks up oxygen in the lungs 
and ingested food in the mid-section and distributes these specialties 
to the 30 trillion cells of the body. At those points it picks up carbon 
dioxide and waste matter and carries them off. I could put a hypoder- 
mic needle into one of your veins and thin your blood stream to the 
point where it would no longer make these exchanges, and when I 
reached that point, we could refer to you quite accurately in the past 
tense. 

By the same token, you can thin your economic circulatory system, 
your medium of exchange, to the point where it will no longer circu- 
larize the products and services of economic specialization. When this 
happens, the economy of our nation will be "discombobulated." 

Let me show you how it works. Right after the Armistice my 
squadron was sent to Coblenz with the Army of Occupation. The 
German inflation was underway. I didn't know any more then about 
inflation than most Americans do now. I liked what I experienced — as 
do most Americans now — ^because I got more marks every payday 



The Essence of Americanism / 27 

than the previous payday— and not because of a raise in pay I had 
secunty. The government was giving me food, shelter, clothing, and 
so forth. I used the marks to shoot craps and play poker, and the more 
marks, the more fun. 

German iiiflation continued with mounting intensity and by 1923 
it got to the point where 30 miUion marks would not buy a single loaf 
of bread. 

About the time I arrived, an old man died and left his fortune to 
his two sons, 500,000 marks each. One boy was a frugal lad who never 
spent a pfennig of it. The other one was a playboy and spent it all on 
champagne parties. When the day came in 1923 that 30 million marks 
wouldn't buy a loaf of bread, the boy who had saved everything had 
nothing, but the one who spent his inheritance on champagne parties 
was able to exchange the empty bottles for a dinner. The economy had 
reverted to barter. 

Those of you who are interested in doing something about this, 
have a right to ask yourselves a perfectly logical question: Has there 
ever been an instance, historically, when a country has been on this 
toboggan and succeeded in reversing itself? There have been some 
minor instances. I will not attempt to enumerate them. The only sig- 
nificant one took place in England after the Napoleoruc Wars. 

How England Did It 

England's debt, in relation to her resources, was larger than ours 
is now; her taxahon was confiscatory; restrictions on the exchanges of 
goods and services were numerous, and there were strong controls 
on production and prices. Had it not been for the smugglers, many 
people would have starved! 

Now, something happened in that situation, and we ought to take 
cognizance of it. What happened there might be emulated here even 
though our problem is on a much larger scale There were in England 
such men as John Bright and Richard Cobden, men who understood 
the principle of freedom of exchange. Over in France, there was a 
politician by the name of Chevalier, and an economist named Frederic 
Bastiat. 

Incidentally, if any of you have not read the little book by Bastiat 
entitled The Law, I commend it as the finest thing that I have ever read 
on the principles one ought to keep in mind when trying to judge for 
oneself what the scope of government should be. 

Bastiat was feeding his brilliant ideas to Cobden and Bright, and 
these men were preaching the merits of freedom of exchange. Mem- 



28 / Leonard E. Read 

bers of Parliament listened and, as a consequence, there began the 
greatest reform movement in British history. 

Parliament repealed the Com Laws, which here would be like 
repealing subsidies to farmers. They repealed the Poor Laws, which 
here would be like repealing Social Security. And fortunately for them 
they had a monarch — ^her name was Victoria — ^who relaxed the 
authority that the English people themselves believed to be implicit 
in her office. She gave them freedom in the sense that a prisoner on 
parole has freedom, a permissive kind of freedom but with lots of 
latitude. Englishmen, as a result, roamed all over the world achieving 
unparalleled prosperity and building an enlightened empire. 

This development continued until just before World War L Then 
the same old political disease set in again. What precisely is this dis- 
ease that causes inflation and all these other troubles? It has many 
jpopular names, some of which I have mentioned, such as socialism, 
communism, state interventionism, and welfare statism. It has other 
names such as fascism and Nazism. It has some local names like New 
Deal, Fair Deal, New Republicanism, New Frontier, and the like. 

A Dwindling Faith in Freedom 

But, if you will take a careful look at these so-called "progressive 
ideologies," you will discover that each of them has a characteristic 
common to all the rest. This common characteristic is a cell in the body 
politic which has a cancer-like capacity for inordinate growth. This 
characteristic takes the form of a belief. It is a rapidly growing belief 
in the use of organized force — government — not to carry out its origi- 
nal function of inhibiting the destructive actions of men and invoking 
a common justice, but to control the productive and creative activity 
of citizens in society. That is all it is. Check any one of these ideologies 
and see if this is not its essential characteristic. 

Here is an example of what I mean: I can remember the time when, 
if we wanted a house or housing, we relied on private enterprise. First, 
we reUed on the person who wanted a house. Second, we relied on the 
persons who wanted to compete in the building. And third, we relied 
on those who thought they saw some advantage to themselves in 
loamng the money for the tools, material, and labor. Under that system 
of free enterprise, Americans buUt more square feet of housing per 
person than any other country on the face of the earth. Despite that 
remarkable accomplishment, more and more people are coming to 
believe that the only way we can have adequate housing is to use 
government to take the earnings from some and give these earnings. 



I 



The Essence of Americanism / 29 

in the form of housing, to others. In other words, we are right back 
where the Pilgrim Fathers were in 1620-23 and Karl Marx was in 
1847— from each according to abUity, to each according to need, and 
by the use of force. 

As this beUef in the use of force as a means of creative accomplish- 
ment increases, the beUef in free men—that is, man acting freely, com- 
petitively, cooperatively, voluntarily— <:orrespondingly diminishes. In- 
crease compulsion and freedom declines. Therefore, the solution to 
this problem, if there be one, must take a positive form, namely, the 
restoration of a faith in what free men can accomplish. 

Let me give you an example of how faith in free men is lost. If I 
were to go out today and ask the people I meet, ''Should government 
deliver mail?" almost everybody would say, "Yes." Why would they 
say yes? One reason is that the goveniment has preempted that activ- 
ity, has had a monopoly for so many decades that entrepreneurs today 
would not know how to go about delivering mail if it were a private 
enterprise opportunity. You know, you businessmen have a very odd 
characteristic. You don't spend any time working on something you 
will never get a chance to try out! 

Anyway, I did a little research job a while ago and found that we 
deliver more pounds of milk in this country than we do pounds of 
mail. I next made a more startling discovery. Milk is more perishable 
than a love-letter, a catalogue, or things of that sort. And third, I found 
out that we deliver milk more efficiently and more cheaply. I asked 
myself what appeared to be a logical question: Why should not private 
enterprise deliver mail? We deliver freight, and that's heavier. But 
many people have lost faith in themselves to deliver as simple a thing 
as a letter! 

Who are these people who have lost faith in themselves to deliver 
a letter? I am going to stick just to the subject of delivery and to recent 
times. 

Less than a hundred years ago the human voice could be delivered 
the distance that one champion hog-caller could effectively commimi- 
cate with another champion hog-caller, which I have estimated at 
about 44 yards. Since that time man, acting freely, privately, competi- 
tively, voluntarily, has discovered how to deliver the human voice 
around the earth in 1/7 of a second — one million times as far in about 
the same time that the voice of one hog-caller reached the ear of the 
other. When men were free to try, they found out how to deliver an 
event like the Rose Bowl game in motion and in color into your living 
room while it is going on. When men were free to try, they foimd out 
how to deliver 115 individuals from Los Angeles to Baltimore in three 



30 / Leonard E. Read 

hours and nineteen minutes. When men are free to try, they deliver 
gas from a hole in the ground in Texas to my range at Irvington, New 
York, without subsidy and at low prices. Men who are free to try have 
discovered how to deliver 64 ounces of oil from the Persian Gulf to 
our eastern seaboard, more than half the way aroimd the world for 
less money than government will deliver a one-ounce letter across the 
street in your home town. And the people who accomplish these mir- 
acles have lost faith in their capacity to deliver a letter, which is a Boy 
Scout job. You may get the idea that when it comes to productive and 
creative work, I have more faith in free men than in goverrunent. 

Now then, why is this happening to us? I don't know all the 
reasons. I am not sure that anyone does. If pressed, however, for the 
best reason I could give, the most profound one, it would be this: the 
American people, by and large, have lost track of the spiritual antece- 
dent of the American miracle. You are given a choice: either you accept 
the idea of the Creator as the endower of man's rights, or you submit 
to the idea that the state is the endower of man's rights. I double-dare 
any of you to offer a third alternative. We have forgotten the real 
source of our rights and are suffering the consequences. 

Millions of people, aware that something is wrong, look around 
for someone to blame. They dislike socialism and communism and 
give lip service to their dislike. They sputter about the New Frontier 
and Modem Republicanism. But, among the millions who say they 
don't like these ideologies, you cannot find one in ten thousand whom 
you yourself will designate as a skilled, accomplished expositor of 
socialism's opposite — the free market, private prof>erty, limited gov- 
ernment philosophy with its moral and spiritual antecedents. How 
many people do you know who are knowledgeable in this matter? 
Very few, I dare say. 

Developing Leadership 

No wonder we are losing the battle! The problem then— the real 
problem— is developing a leadership for this philosophy, f>ersons 
from different walks of life who understand and can explain this phi- 
losophy. 

This leadership functions at three levels. The first level requires 
that an individual achieve that degree of understanding which makes 
it utterly impossible for him to have any hand in supporting or giving 
any encouragement to any socialistic activities. Leadership at this level 
doesn't demand any creative writing, thinking, and talking, but it 
does require an understanding of what things are really socialistic. 



The Essence of Americanism / 31 

however disguised. People reject sociaHsm in name, but once any so- 
cialistic activity has been Americanized, neariy everybody thinks it's 
all right. So you have to take the definition of socialism— state owner- 
ship and control of the means of production— and check our current 
practices against this definition. 

As a matter of fact, you should read the ten points of the Commu- 
nist Manifesto and see how close we have come to achieving them right 
here in America. It's amazing. 

The second level of leadership is reached when you achieve that 
degree of understanding and exposition which makes it possible to 
expose the fallacies of socialism and set forth some of the principles 
of freedom to those who come within your own personal orbit. Now, 
this takes a lot more doing. 

One of the things you have to do to achieve this second level of 
leadership is some studying. Most people have to, at any rate, and one 
of the reasons The Foundation for Economic Education exists is to help 
such people. At The Foundation we are trying to understand the free- 
dom philosophy better ourselves, and we seek ways of explaining it 
with greater clarity. The results appear in single page releases, in a 
monthly journal, in books and pamphlets, in lectures, seminars, and 
the like. Our journal, The Freeman, for instance, is available to schools 
and libraries on request. We impose no other condition. 

The third level of leadership is to achieve that excellence in under- 
standing and exposition which will cause other persons to seek you 
out as a tutor. That is the highest you can go, but there is no limit as 
to how far you can go in becoming a good tutor. 

When you operate at this highest level of leadership, you must 
rely only on the power of attraction. Let me explain what I mean by 
this. 

On April 22 we had St. Andrew's Day at my golf club. About 150 
of us were present, including yours truly. When I arrived at the club, 
the other 149 did not say, "Leonard, won't you please play with me? 
Won't you please show me the proper stance, the proper grip, the 
proper swing?" They didn't do it. You know why? Because by now 
those fellows are aware of my incompetence as a golfer. But if you 
were to wave a magic wand and make of me, all of a sudden, a Sam 
Snead, a Ben Hogan, an Arnold Palmer, or the like, watch the picture 
change! Every member of that club would sit at my feet hoping to 
learn from me how to improve his own game. This is the power of 
attraction. You cannot do well at any subject without an audience 
automatically forming around you. Trust me on that. 

If you want to be helpful to the cause of freedom in this country. 



32 / Uonard E. Read 

seek to become a skilled expositor. If you have worked at the philoso- 
phy of freedom and an audience isn't forming, don't write and ask 
what the matter is. Just go back and do more of your homework. 

Actually, when you get into this third level of leadership, you 
have to use methods that are consonant with your objective. Suppose, 
for instance, that my objective were your demise. I could use some 
fairly low-grade methods, couldn't I? But now, suppose my objective 
to be the making of a great poet out of you. What could I do about 
that? Not a thing — unless by some miracle I first learned to distinguish 
good poetry from bad, and then learned to impart this knowledge to 
you. 

The philosophy of freedom is at the very pinnacle of the hierarchy 
of values; and if you wish to further the cause of freedom, you must 
use methods that are consonant with your objective. This means rely- 
ing on the power of attraction. 

Let me conclude with a final thought. The business of freedom is 
an ore that lies much deeper than most of us realize. Too many of us 
are prospecting wastefully on the surface. Freedom isn't something to 
be bought cheaply. A great effort is required to dig up this ore that 
will save America. And where are we to find the miners? 

Well, I think maybe we will find them among those who are 
reasonably intelligent. I think we will find these miners of the free- 
dom-ore among those who love this country. I think we will probably 
find them in this room. And if you were to ask me who, in my opinion, 
has the greatest responsibility as a miner, I would suggest that it is the 
attractive individual occupying the seat you are sitting in. 



Natural Rights 
by Ronald Cooney 



The concept of natural rights no doubt has its origin in the Roman 
Stoic idea of a "law above the law/' of an unwritten law which pre- 
cedes and is superior to man made law. Christian philosophy, in the 
persons of St. Augustine and St. Thomas Aquinas, developed and 
refined the natural law idea, and it was a significant tenet of the 
eighteenth century Enlightenment. The doctrine has come down 
through the centuries as one of the major arguments against arbitrary 
and unrestrained governmental power. 

In much the same way is the belief in the natural rights of man a 
belief in "rights above rights." Likewise, natural rights have been used 
in the resistance to unjust authority. Natural rights were partial justifi- 
cation for the Glorious Revolution of 1688, for the American Revolu- 
tion (the Declaration of Independence cited man's "unalienable 
rights"), and for the French Revolution and the Declaration of the 
Rights of Man. All of the revolutions since the eighteenth century have 
drawn at least some of their power from appeals to natural rights. 

The connection between natural rights and natural law is instantly 
recognizable. Both exist prior to the State, and both transcend it. Natu- 
ral law, like the law of the State, provides protection for the individ- 
ual's rights from violation by another individual, or — and this the 
State does not do— by the State itself. Natural rights and natural law 
are the final arbiters of liberty. Finally, natural rights and natural law 
are both denied by those who exalt the State over the individual citi- 
zen, those who make the State all and the individual nothing. It is to 
this, as it is to all forms of Statism, that natural rights make a direct 
and implacable chaDenge. 

Dictatorial Delusion 

The common delusion of the defenders of unlimited governmental 
domiruon is that the State confers upon the individual whatever politi- 
cal and economic rights he may enjoy. This was certainly the view of 



Mr. Cooney, a free-lance writer, wrote this article for the October 1972 issue of The 
Freenutn. 



33 



34 / Ronald Cooney 

Thomas Hobbes, the defender of absolute monarchy and the author 
of the Leviathan. Hobbes, in 1651, argued for the complete sovereignty 
of the king as ruler and lawmaker. Hobbes sought to repudiate natural 
law by placing it on equal terms with the civil law. He states in the 
Leviathan, "The law of nature and the civil law contain each other, and 
are of equal extent." In other words, natural law (and by extension, 
natural rights) is as high as, but no higher than, civil law. The sovereign 
makes civil law, and in Hobbes' kingdom there can be no law higher 
than the decrees of the sovereign. He, in effect, is the law. 

Whatever the political repercussions of a system like that which 
Hobbes postulates, there are certain moral and ethical questions which 
it poses. Hobbes felt that morals and ethics had no place in determin- 
ing whether or not a system of government was good or evil. Such a 
judgment, according to Hobbes, could not be made, or if made, could 
not be proved. The correlation between Hobbes' disavowal of natural 
law /natural rights and objective morality is palpable and direct. Hob- 
bes realized that the acceptance of unalienable rights of life, liberty, 
and property would compel one to make a moral judgment of a politi- 
cal system which violated those rights. Having given the sovereign 
absolute authority to make laws, Hobbes goes on to say that no ethical 
determination can be made about the sovereign's action, about its 
goodness or evilness. Ethics, to Hobbes, are purely subjective and 
inapplicable in political affairs. The sovereign, it would seem, is above 
both law and morality; or, like Nietzsche's superman, "beyond good 
and evil." 

Hobbes wrote in defense of authoritarian rule by one man, the 
monarch. Monarchy was, in Hobbes' day, the most widespread form 
of government. With the gradual decay of the monarchical form, and 
the general democratization of governments, came the belief that it 
was not the leader of the nation who was sovereign, but the people 
themselves. The divine right of kings had become, as Herbert Spencer 
observed, the "divine right of majorities." But whether they repre- 
sented the interests of monarchy or democracy, the enemies of natural 
rights had the same intention— to deny the individual any rights but 
those granted by the State. 

Bentham's Faith in Democracy 

Of the type of thinker who spoke for democracy and agaii\st natu- 
ral rights was the great utilitarian Jeremy Bentham. No statist in eco- 
nomic concerns, Bentham was curiously inconsistent when it came to 
limiting, or not limiting, the State's sphere of influence. Government's 



Natural Rights / 35 

function, as Bentham saw it, was ''creating rights/' He considered 
natural law and nahiral rights "fictions," and in his first work, the 
Fragment on Government, he castigated Blackstone for a contrary belief. 
Bentham's antipathy to natural rights sprang from the conviction that 
natural rights were obstacles to reform, and he was against checks and 
balances and a system of separation of powers for the same reason. 

Bentham thought, with the faith of the statist in the ability of 
government to solve all human problems, that by making the act of 
legislating as easy as possible, the State could deal more readily with 
society's dilemmas. Bentham did not see what others, most notably 
the Framers of the Constitution, saw so penetratingly: that the power 
of the State to achieve good was equaled by its power to achieve 
enormous harm, that in seeking the former one necessarily braved the 
latter. Bentham did not perceive the difficulty inherent in placing all 
right-giving power in the State's hands. He failed to understand that 
the capacity for bestowing rights could become the capacity for with- 
drawing rights. Finally, Bentham, like Hobbes before him, was incor- 
rect in assuming that the State could create rights out of nothing. The 
State is a delegated authority, and what power it has derives from the 
individuals who comprise it. Such being the case, it is absurd to as- 
sume that the State can bestow rights on its own creators. The State 
may give order to rights, define them more clearly, and protect them 
with laws; but it can no more grant rights to the members of society 
than a child can grant rights to his parents. 

The Ethical Case 

The ethical arguments in favor of natural rights are perhaps even 
more telling. If it is true that men have only the rights the State has 
seen fit to give them, what is to stop the State, at any time and for any 
reason, from taking back those rights? Furthermore, how can we say 
that the State acts wrongly if it chooses to take that action? By the logic 
of the opponents of natural rights, the Nazi regime had a perfect 
justification for recalling the rights, including the right to life of 
6,000,000 human beings, and should not be condemned or thought of 
as evil for simply exercising the prerogative to which, as a state, it was 
clearly entitied. Thus, the denial of nahiral rights quickly resolves itself 
into a rejection of \he ethical differences between governments, mak- 
ing a slave-state the moral equal of a republic. 

We now arrive at the final question, "What are the natural rights?" 
Although it cannot be answered precisely, that does not mean it is 
unanswerable. As has been said before, natural rights precede the 



36 / Ronald Cooney 

State and hence are a priori in character. Natural rights are every man's 
at birth and are not State-granted. If each man has an equal claim to 
liberty, that is, the use of his rights, he can be limited in his freedom 
only by the claims of other men to an equal share of liberty. The circle 
of rights around every man extends as far as it may without intruding 
on the rights of other men. For this reason are the "rights" granted by 
the State bogus rights. A right to receive welfare, for example, is inva- 
lid since it requires the abridgment, however partial, of the rights of 
the citizen who is compelled to pay for the welfare benefits given to 
someone else. Natural rights, by contrast, require no abridgment of 
another individual's rights to exist, but are limited only by the same 
natural rights of another person. 



Natural Law and the American Tradition 
by Davis E. Keeler 



Legal and political philosophy came to America with the first New 
England colonists. These Puritans were not concerned with politics 
itself but treated upon it as it was involved with their religious prob- 
lems. Outside of New England, though the colonists were also taken 
up in the problems of establishing governments and framing laws, 
there was virtually no writing dealing with the philosophy of politics 
or laws. 

In those first years, the Puritan conception of law was quite clear: 
the only true law was that of God's making. It was only when the rules 
of man were based squarely on the revealed will of God that they 
attained the dignity of law. The concept of natural law was completely 
absorbed in divine law. An English lawyer in Boston wrote in 1642 
that the colonial tribunals ignored English Common law and sought 
to administer Mosaic law. 

Although the colonies did not produce legal philosophy, they av- 
idly consumed the two monimiental writers of English law: Coke and 
Blackstone. 

Lord Coke was a product of the seventeenth century, which saw 
not only the ascendcincy of the doctrine of natural law as a restriction 
on the sovereign's relations to his subjects, but in England saw it 
established that there were certain fundamental comnion law rights 
which the courts would enforce even against the king. To Lord Coke, 
the common law limitations on royal authority became natural limita- 
tions on all authority; the common law rights of Englishmen became 
the naturcd rights of man. 

Because of the inexact manner in which the common law was 
developed and handed down, in his expositions of the content of these 
natural rights of Englishmen Coke seldom rested solely upon the 
Magna Carta or other authority but would invariably invoke "com- 
mon right and reason" to justify his position. 

Yet however these rights might be discovered, it is clear that they 
transcended both parliament and king. In Bonham's Case (1610), Coke 
said: "And it appears in our books, that in many cases, the common 



Mr. Keeler wrote this article for the May 1981 issue of The Freeman. 

37 



38 / Davis E. Keeler 

law wiU control the acts of ParUament, and sometimes adjudge them 
utterly void; for when an act of ParUament is against common right 
and reason, or repugnant, or impossible to be performed, the common 
law will control it and adjudge such an action to be void." 

In 1765, William Blackstone published his Commentaries on the Law 
and within' a short time he became as well read in America as in 
England. These quotations are from an American edition published 
in Philadelphia in 1771: "When the Supreme Being formed the uru- 
verse and created matter out of nothing, he impressed certain prin- 
ciples upon that matter from which it can never depart and without 
which it would cease to be. . . . This then is the general sigiuficance of 
law. . . . But laws in their more confined sense, and in which it is our 
present business to consider them, denote rules not of action in gen- 
eral, but of himian action . . . that is the precepts by which man . . . 
endowed with both reason and free will, is commanded to make use 

of those faculties in the general regulation of his behavior So when 

He created man ... He laid down certain immutable laws of human 
nature . . . and gave him also the faculty of reason to discover the 
purport of those laws. The Creator . . . has been pleased so to contrive 
the constitution and form of humanity that we should want no other 
prompter to inquire after and pursue the rule of right but our own 
self-love, that imiversal principle of action — God has not j>erplexed 
the law of nature with a multitude of abstract principles . . . but has 
graciously reduced the rule of obedience to this one paternal precept 
that man shall pursue his own true and substantial happiness." 

Though Blackstone speaks of the natural liberties and absolute 
rights of man, he adds a reservation: 'T know it is more generadly laid 
down more largely, that acts of Parliament contrary to reason are void. 
But if parliament will positively enact a thing to be done which is 
unreasonable, I know of no power in the ordinary fonns of the Consti- 
tution that is vested with the authority to control it." 

In that he was right, for in England the Revolution of 1688 had 
established the supremacy of Parliament and in the Mother Country 
Lord Coke's fundamental rights of Englishmen could no longer pre- 
vail over the will of the legislature. 

Whatever reservations Blackstone may have had about the ulti- 
mate supremacy of natural rights, they were not shared by the colo- 
nists who eagerly consumed Blackstone on the rights of Englishmen 
and ignored Blackstone on the supremacy of Parliament. 

And this was what the Revolution was about. The Declaration of 
Independence was a statement of these principles. Far from being an 
extravagant rallying cry for a difficult cause, it was a simple statement 



Natural Law and the American Tradition / 39 

of the general political and legal consensus of the colonists. When the 
infuriated colonists denounced the Stamp Tax and demanded the 
rights of Englishmen, they were not demanding those rights which 
Parliciment had from time to time granted its subjects but rather those 
immemorial rights of Englishmen granted by God and manifest in 
nature which no pcirliament however representative may take away 
or alter. 



The Spirit of Freedom 
by Robert Bearce 



On July 3, 1776, the events of the previous day were fresh on John 
Adams' mind when he wrote to his wife Abigail: "The second day of 
July, 1776, will be the most memorable epocha in the history of Amer- 
ica. I am apt to believe that it will be celebrated by succeeding genera- 
tions as the great anniversary festival. It ought to be commemorated 
as the day of deliverance, by solemn acts of devotion to God Almighty. 
It ought to be solemnized with pomp and parade, with shows, games, 
sports, guns, bells, bonfires, and illuniinations, from one end of this 
continent to the other, from this time forward forevermore." 

John Adams was enthusiastic about the historic action taken by 
the Continental Congress on July 2. A resolution favoring indepen- 
dence from Great Britain had been carried by the affirmative vote of 
twelve Colonies. Not until the fourth of July, though, was the actual 
Declaration of Independence formally adopted. Although Adams 
missed foretelling the exact day of future celebrations, he accurately 
described the manner in which America's Independence Day would 
be remembered by later generations. 

Each Fourth of July, Americans commemorate the adoption of the 
Declaration of Independence. "Old Glory" comes out of the closet and 
appears on front porches across the nation. Bands play "The Stars and 
Stripes Forever." Thoughtful citizens give thanks for the blessings of 
liberty. 

Such patriotic enthusiasm appears as a yearly ritual across the 
United States. The outward display of loyalty is there, but does this 
allegiance reflect an in-depth understanding of the Declaration of In- 
dependence — a real commitment to personal freedom? 

Although John Adams wrote triumphantly to Abigail about the 
vote for independence, he added a critical observation: "You will think 
me transported with enthusiasm, but I am not. I am well aware of the 
toil and blood and treasure that it will cost us to maintain this Declara- 
tion and support and defend these states." 



Mr. Bearce is a free-lance writer living in Houston, Texas. This article originally 
appeared in the June 1985 issue of The Freeman. 



40 



The Spirit of Freedom / 41 
The Critical Challenge 

We are now facing that same critical chaUenge. The Declaration 
of Independence may be extoUed, but just praising it as a relevant, 
thoughtful document of freedom will not preserve it. Enshrining it 
will not strengthen freedom. Instead, we must re-examine and reassert 
the principles outlined in the Declaration of Independence. 

Consider the second inspiring sentence of the document: "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. . . ." The 
colonists had enjoyed these God-given rights and others since the first 
settling of America. With varying degrees of freedom, they could own 
property, bear firearms, and worship as they pleased. They had the 
right of trial by jury, and they practiced representative government. 
Most important, they had been free to live their own lives as they— not 
the government — best saw fit. 

When these freedoms were threatened by Parliament and King 
George III, the colonists became indignant. Receiving no just response 
to their grievances, they chose to separate themselves from the mother 
country. The Declaration of Independence was the formal statement 
of their decision to be totally independent and self-governing. 

The real importance of the Declaration, however, is its fundamen- 
tal assertion of individual freedom. Even if the demand for political 
independence had not been made, the document would still be a pro- 
found statement in defense of human dignity. When the Thirteen 
Colonies proclaimed their independence as the United States, they 
were reaffirming personal freedom and rejecting authoritarian rule 
by government over the individual. 

Several years after the United States had won independence from 
Great Britain, a veteran of the Lexington-Concord fight in 1775 was 
asked why he had fought against the British. "We had always gov- 
erned ourselves," replied the rugged old minuteman, "and we always 
meant to. They didn't mean we should." 

His forthright answer reveals the main issue of the American War 
of Independence— /reerfom. The minuteman understood that if he was 
to have freedom, he would have to enjoy the right of self-government. 
He reasoned that he could govern himself only to the extent that he 
exercised personal judgment and choice over his own affairs. For al- 
most 150 years, the colonists had done just that— accepted individual 
freedom, responsibility, and accountability for their own Uves. Gov- 
ernment regulations and controls threatened that freedom. 



42 / Robert Bearce 

Oppressive Government 

The Declaration of Independence clearly states the objection to 
oppressive governmental authority. The central portion of the docu- 
ment shows that the colonists were protesting abuse of power, usurpa- 
tion of their rights, obstruction of justice, and governmental interfer- 
ence. Speaking of the King of England, they pointed to this abuse of 
government authority: "He has erected a multitude of new offices, and 
sent hither swarms of officers to harass our people and eat out their 
substance." 

Although he was eventually characterized as such. King George 
in was not a tyrant. He and Parliament had shown a rather benevo- 
lent, paternalistic attitude toward the Thirteen Colonies — an attitude 
similar to the "compassion" and "concern for the disadvantaged" sup- 
posedly shown by our modem-day politicians. Like young immature 
children, the Colonies were to benefit from the fatherly hand of the 
British Crown. But they were not very impressed by this paternal hand 
of regulation, decrees, taxes, and other bureaucratic interventions. 

"Tyranny!" shouted the colonists. They saw unlimited govern- 
ment power for what it was — the seed of repression and subjugation. 
Patriots like Thomas Jefferson fought for the principles of limited gov- 
ernment and individual freedom. They knew that the main role of 
government was twofold: (1) apprehending and punishing domestic 
evildoers — those people who would violate other people's right to 
"life, liberty, and the pursuit of happiness" and (2) organizing the 
defense of law-abiding citizens against foreign aggression. Govern- 
ment was not to be the source of a people's material welfare. 

The Declaration of Independence speaks eloquentiy of "life, lib- 
erty, and the pursuit of happiness" for the individual. These rights 
could be secured only when government itself was held within strict 
boundaries of power and authority. The colonists realized they could 
improve their own personal lives if they were free of government 
interference. They did not want the government trying to do for them 
what they could and should do for themselves. TTiey asked only for 
the freedom to enjoy the just fruits of their daily labors. 

Even as the Crown continued to infringe upon their "unalienable 
rights," the colonists followed legal channels of protest, expressing 
loyalty to the King. There was the firm intention of retaining the 
traditional political relationship with England. The preservation of 
freedom— not revolution — was on the colonists' minds. 

Eventually, patience ran out, prompting Patrick Henry to declare: 
"We have done everything that could be done to avert the storm 



The Spirit of Freedom / 43 

which is now coming on. We have petitioned, we have remonstrated 
we have supphcated, we have prostrated ourselves before the throne' 
and have miplored its interposition to arrest the tyrannical hands of 
the mmistry and Parliament. Our petitions have been slighted- our 
remonstrances have produced additional violence and insult; our'sup- 
plications have been disregarded; and we have been spumed with 
contempt from the foot of the throne." 

Individual Dignity 

The American War of Independence was fought to preserve a 
truly "revolutionary" truth— each of us is a unique individual, able to 
accept self-responsibility and thus to enjoy personal dignity. For the 
most part, the governments, systems, revolutions, societies, and ide- 
ologies of the world have tried to suppress that truth. People have 
been enslaved, tortured, and killed by those who reject man's God- 
given right to "life, liberty, and the pursuit of happiness." 

The American colonists had seen the approach of slavery. In the 
Declaration of Independence, they accused King George III of seeking 
the "establishment of an absolute tyranny over these States." Similar 
language was used by the revolutionary Jacobins during the French 
Revolution when they assailed the monarchy under Louis XVI. The 
French radicals shouted lofty slogans about liberty, but their bloody 
revolution against the monarchy hardly parallels the spirit of the 
American Revolution — the true spirit of freedom. 

"Liberty! Equality! Fraternity!" clamored the revolutionaries of 
France. Louis XVI lost his head on the guillotine. So did thousands of 
other Frenchmen. 

The leaders of the French Revolution of 1789 had read the Declara- 
tion of Independence. They admired America's document of freedom. 
Unfortunately, they lauded it but rejected its principles. They failed 
to comprehend what Jefferson and Adams meant when they said "all 
men are created equal." Equality as it is outlined in the Declaration 
says that individuals are equal in their right to be free and indepen- 
dent — to be free and independent as long as they respect the rights of 
others to be free and independent, with everyone respecting property 
and other individual rights. 

Each person should have the right to rise to the height of self- 
realization consistent with that person's individual talents, ambition, 
and willingness to accept personal accountability. In seeking this self- 
fulfillment, each person must respect the equal rights of other indi- 
viduals. 



44 / Robert Bearce 

When a government respects true equality — the equal right to 
enjoy personal freedom— the result will be that many differences will 
exist among the citizenry. This natural condition of inequality is consis- 
tent with freedom, justice, and human nature. Individuals are unique. 
Each person has varying talents, aspirations, and weaknesses. If indi- 
viduals are free to arrange their own lives, they create a diverse society 
where men and women attain different social, intellectual, and eco- 
nomic status. 

Equal Treatment Results in Many Differences 

Individuals are equal in their right to "life, liberty, and the pursuit 
of happiness" — so long as they accept responsibility for their own lives 
and recognize their personal accoimtability for their failures, short- 
comings, and misdeeds. Regrettably for mankind, modem-day politi- 
cians and "social architects" like the French revolutionaries reject this 
truth. 

Robespierre, Danton, and other leaders of the French Revolution 
believed they could bring about the regeneration of humanity through 
the power of the State (government power and authority). Although 
they spoke much about freedom, they actually denied self-determina- 
tion and the free will of the individual. They insisted that man was the 
product of his environment. Crime, poverty, greed — these were sup- 
posedly inflicted upon humanity by corrupt political, social, and eco- 
nomic conditions /institutions. By the use of government authority 
and power, the revolutionaries believed they could erect a near perfect 
if not perfect society. 

The visionaries of Revolutionary France had a distorted view of 
human nature — a distorted view still held by many people today in 
the media, in politics, in our universities, and even in our religious 
institutions. The theory-minded leaders of the French Revolution be- 
lieved that the individual was inherently virtuous. If a person commit- 
ted murder, he should not be harshly condemned for a criminal act. 
Rather, he should be regarded as the victim of adverse social or eco- 
nomic conditions which drove him to the act of taking another individ- 
ual's life. 

Thus, the French revolutionaries focused their efforts to build the 
virtuous society by removing what they mistakenly thought caused 
people to act in "antisocial" ways. By reconstructing society through 
the power of the State, they were convinced that people would return 
to their basic goodness, virtue, and righteousness. 

The government leaders of the French Revolution said that they 



The Spirit of Freedom / 45 

loved humanity. They said that they were for the "poor and home- 
less/' "the helpless and abused/' and "the needy/' but in reality, they 
rejected the true meaning of human dignity contained in the Declara- 
tion of Independence. They placed society and the State above the 
individual and individual freedom, whereas the 56 signers of the Dec- 
laration of Independence in America placed the individual above the 
State. 

The patriots of the American Revolution had faith in individual 
freedom. Freedom — not government power — was the foimdation for 
true progress, self-improvement, and happiness. Absolute equality 
and perfection brought about by government authority were illusions. 
Only free individucds in a truly free nation could achieve material 
welfare, human dignity, and personal fulfillment. Only when the indi- 
vidual has both the freedom to make choices and the corresponding 
obligation to abide by the just consequences of those choices, can he 
achieve self-resf)ect. 

By adhering to the principles of the Declaration of Independence, 
Americans have attained material abundance and personal dignity. 
The blessings of liberty have been enjoyed because free individuals 
have been allowed in the past to labor freely in a free society. Yet, we 
have also been abandoning the bcisic truths upon which America was 
founded. 



"Omnipotent^ Government 

From the halls of Congress to the academic forum, we hear that 
government has the answer to all of our society's ills. We are assured 
5iat government can and should solve every problem from hunger to 
faulty automobile bumpers. Commissions . . . regulations . . . controls 
. . . rules . . . coercion . . . Congressional committees . . . subcommittees 
. . . regimentation . . . and more regimentation— all should remind us 
of the grievances listed in the Declaration of Independence. 

Coercion, paternalism, restrictive legislation, and unconstitutional 
government intervention will gain ground to the extent that we are 
different to the cause of true freedom. When we remain silent, we will 
be responsible for our own destruction— moral degeneracy, material/ 
economic stagnation, and eventual physical slavery. 

The principles of freedom will continue to be eroded as long as 
free individuals relax in their complacency. "Is this the part of wise 
men," asked Patrick Henry in March 1775, "engaged in a great and 
arduous struggle for Uberty? Are we disposed to be of the number of 



46 / Robert Bearce 

those who, having eyes, see not, and having ears, hear not, the things 
which so nearly concern their temporal salvation?" 

Freedom is threatened today just as it was threatened at the time 
of the Declaration of Independence. The colorusts wanted less govem- 
u^ent — not more of it in their daily lives. They wanted to be free to 
release their own creativity and energies. The "pursuit of happiness" 
was their own responsibility. They stated in the Declaration "that, to 
secure these rights, governments are instituted among men, deriving 
their just powers from the consent of the governed." The early patriots 
of America believed that government should protect their "unalien- 
able rights." It had no right to interfere with "life, liberty, and the 
pursuit of happiness" other than that of prosecuting law-breakers and 
maintaining self-defense from foreign aggression. The colonists were 
free people struggling to remain free. 

Living in freedom had strengthened the character of the colonists. 
They recognized the existence of moral absolutes. Right was right. 
Wrong was wrong. They were individuals who valued honesty, hard 
work, thrift, and an equal respect for the rights of others. They knew 
what they believed and why they believed it. They said what they 
meant and meant what they said. 



Humble Before God 

Although the colonists were self-reliant and independent, they 
were humble before God. True liberty was found in a genuine rever- 
ence for Almighty God and obedience to His commandments — ^not 
worship of government authority. Their spiritual faith gave them a 
clear understanding of their personal roles in life. They accepted the 
rugged challenges of life, knowing that in worldly affairs the Lord, 
indeed, helped those who helped themselves. 

The farmers and shopkeepers who took up arms against the Red- 
coats heeded Ben Franklin's admonition: "They that can give up essen- 
tial liberty to obtain a little temporary safety deserve neither liberty 
nor safety." 

The patriots of 1776 chose both liberty and the responsibility of 
defending that freedom. The Continental soldier fought at Trenton 
and Germantown . . . suffered at Valley Forge ... and finally won 
independence. The "Spirit of 76" is the faith and spirit of freedom. If 
Patrick Henry and other patriots were wUling to die for freedom, 
certainly we should live for freedom. We face the continued struggle 
for liberty. Battles lie ahead. We are in continual warfare. These are 



The Spirit of Freedom / 47 

facts that we must accept honestly as we consider Patrick Henry's 
words back in 1775: 

"The battle, sir, is not to the strong alone; it is to the vigilant, the 
active, the brave. Besides, sir, we have no election. If we were base 
enough to desire it, it is not too late to retire from the contest. There 
is no retreat but in submission and slavery!" 

A State of War 

Today, free people are in a state of warfare — a continued battle 
prompted by those who oppose freedom. We need to acknowledge 
our current challenge to keep alive the spirit of freedom and to 
strengthen freedom. 

First, we need an honest, sincere, and broad understanding of the 
basics of freedom. We cannot very well defend that which we cannot 
adequately explain and present to other people. We should ask our- 
selves how well we truly understand such principles of freedom as the 
free-market exchange of goods and services . . . personal freedom/ 
accountability ... no coercion against law-abiding citizens . . . volun- 
tary cooperation . . . limited, strictly defined government power. 

Do we understand these principles? Are we doing what we can 
to understand them better? 

Second, in order to rejuvenate the spirit of freedom, we must 
practice the freedom faith continually, consistently, and earnestly in 
our own personal lives. Some warriors for the cause of freedom know 
the ABCs on the subject, and they are on the battlefronts, such as 
actively campaigning for pro-freedom candidates for Congress. 

Such "activism" is to be cheered and encouraged, but woe! Some 
of those hcird-charging freedom warriors will (1) on Monday, demand 
the total elimination of the federally fimded Legal Services Corpora- 
tion, but (2) on Tuesday lobby the federal government for an increase 
in federal subsidies and low interest loans for farmers. The wayward, 
backsliding freedom troopers in this case are an association of farmers 
who are more interested in their "special interest" than in individual 
freedom and responsibility. 

No, we cannot have that type of inconsistency if the spirit of 
freedom is to be enhanced and strengthened. 

Third, we must diligentiy protect freedom. Patrick Henry advised 
that those who would defend Uberty must be strong, active, brave, and 
vigilant. "Vigilance is the price of liberty," and today we should be 
vigilant— seeing where and how freedom is being undermined. 

For example, we ought to see that many reporters, commentators. 



48 / Robert Bearce 

editors, publishers, and news anchosr are not the fair, objective, accu- 
rate, and honest people they would like us to believe. Instead, they are 
prejudiced against freedom. They show a clear bias in favor of more 
government — a support for more government intervention that daily 
translates into a corruption of the truth. 

A good portion of the major news media people have a personal 
belief that the government should be spending more — ^not less — for 
education, the arts, welfare, health, and the like. They personally be- 
lieve that government regulations and programs — ^not free people 
working freely in a free society — are the best way to make sure indi- 
viduals are sufficiently housed, clothed, fed, and given proper medical 
care. 

Even though we may have a very sound grasp of the basics of 
freedom, we must be vigilant to the distortions, half-truths, and 
slanted reporting we receive from media sources around us. 

Fourth, we should be earnest spokesmen for freedom, actively 
taking a part in the current battles affecting our daily lives. It isn't 
enough to appreciate the writings of Bastiat, Jefferson, Burke, 
Tocqueville, and Ludwig von Mises. Nor do we accomplish much by 
railing at the supper table about Congress's latest repudiation of the 
oath of office to defend the Constitution of the United States. Rather, 
we should practice what we preach by becoming intelligently, firmly, 
and consistently involved defending freedom, explaining it, <md 
strengthening it. 

Words of Wisdom 

Two men who signed the Declaration of Independence back in 
1776 still speak to us as we seek to learn more about freedom. "A wise 
and frugal government," advises Thomas Jefferson, "which shaU re- 
strain 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 " 

Dr. John Witherspoon, the only active clergyman to sign the Decla- 
ration, gives us a final insight into the spirit of freedom: 

"A good form of government may hold the rotten materials to- 
gether for some time, but beyond a certain pitch even the best constitu- 
tion will be ineffectual, and slavery will ensue. On the other hand, 
when the manners of a nation are pure, when true religion and inter- 
nal principles maintain their vigor, the attempts of the most powerful 
enemies to oppress them are commonly baffled and disappointed." 



Individual Rights: The Crumbling Foundation 
of American Government 

by Robert Higgs 

Almost everyone recognizes that government can perpetrate great 
evils. One has only to think of the regimes of Stalin, Hitler, and Pol 
Pot, three of the most hideous examples. But government is also 
widely regarded as a potential source of great good. Even Ludwig von 
Mises, an archenemy of statism, declared that government is "the 
most necessary and beneficial institution, as without it no lasting social 
cooperation and no civilization could be developed and preserved. "^ 
How can people enjoy the benefits of government while avoiding the 
dangers? Upon what principles must a tolerable government be built? 

The Nature of Government 

When we say the word "government," we may mean various 
things. Sometimes we refer to certain institutions, the established rules 
and proceedings by which the body politic is ordered and incorpo- 
rated into the making and maintaining of collective arrangements for 
social life. At other times we refer to the particular persons who wield 
established authority over the citizenry. The two meanings are con- 
nected. Government as rulers operates according to government as 
institutions, which people often call "the system." This connection 
holds whether the type of government be dictatorship, oligarchy, 
monarchy, or representative democracy. 

Governments have existed for thousands of years. Philosophers 
have argued that they are either natural — it would be inconceivable 
that humankind not have them — or that people without a government 
would be, in Thomas Hobbes' words, so "few, fierce, short-lived, poor, 
nasty, and deprived of all that pleasure and beauty of life, which peace 
and society are wont to bring with them," that no one would want to 
be without a government.^ In Hobbes' estimation, it would be a good 
bargain for individuals to surrender all their freedom of action to a 
ruler in exchange for a modicum of peace and social order. 

Dr. Higgs is Research Director for the Independent Institute. This article was first 
published in the October 1991 issue of The Freeman. 



49 



50 / Robert Higgs 

A government, by definition, claims a monopoly of legitimate co- 
ercion within its jurisdiction. Every government, ultimately if not im- 
mediately, relies on physical violence to enforce its rule. If it cannot 
do so effectively, it probably will be replaced by another government 
that can. Hence it is entirely natural that governments maintain police, 
prisons, and armed forces, whereas General Motors, Exxon, and IBM 
do not. People sometimes talk about ''economic power" as if it were 
comparable with governmental power. It isn't. 

Every government recognizes that people will obey orders more 
readily if they believe the orders are proper and, in some sense, in the 
best interests of the ruled as well as the rulers. Historically, a close 
linkage of the warrior class and the priesthood has characterized most 
societies. The blessing of religion has given many governments a more 
effective claim to obedience. Whether by appeal to religion or by ap- 
peal to secular principles of right or virtue, governments always try 
to legitimate their actions. This striving after legitimation is the princi- 
pal difference between governments and mere criminal gangs. 

Whether government reaUy is necessary (and a few of us still 
consider the question open to debate), once a society has a govern- 
ment, the potential exists for rulers to abuse their power by pursuing 
their own ends rather than those cherished by the people they rule. 
Unchecked government can give rise to tyranny. Accordingly, many 
lovers of liberty have called government a necessary evil: necessary 
because they see no alternative institution to maintain peace and do- 
mestic order, and evil because the rulers, by virtue of their exclusive 
control of legitimate coercion, may overextend their powers at the 
expense of the well-being and liberties of the ruled. 

Revolutionary Ideals 

The men who founded the United States were, in the eyes of the 
established British government, outlaws — traitors, thieves, eind mur- 
derers. Americans nowadays so venerate the memory of Jefferson, 
Madison, Washington, Hamilton, Adams, Franklin, and the other 
Foimding Fathers that we easily forget the raw reality of what they 
undertook to do between 1775 and 1783. They armed themselves, laid 
claim to authority denied them by established law, and set out to 
overthrow the established government by killing the men who de- 
fended it. 

They were not murderers by profession. Indeed, they probably 
were the most thoughtful, best educated, and most articulate band of 
outiaws in history. When they decided to take up arms to overthrow 



Individual Rights / 51 

the government, they debated their cause at length, and they wrote 
down in various places their reasons for resorting to killing other 
human beings, their justification for actions they ordinarily would 
have strongly condemned. How did they justify their actions? 

They claimed that they, in common with all men, had rights, and 
that in the existing circumstances they could effectively defend their 
rights only by violence. In 1774 the First Continental Congress made 
a declaration of what its members called ''their indubitable rights and 
liberties; which cannot be legally taken from them, altered or abridged 
by any power whatever, without their own consent. . . ." They claimed 
that they were "entitled to life, liberty, and property " 

Where did the asserted rights come from? They said that they held 
the rights "by the immutable laws of nature, the principles of the 
English constitution, <md the several charters or compacts" establish- 
ing the British colonies in North America.^ Again and again the rebels 
justified their cause by claiming a right to liberty. They insisted that 
the legitimacy of government required the consent of the governed. 

The Continental Congress's "Declaration of the Causes and Neces- 
sity of Taking Up Arms," issued July 6, 1775, declared that "a rever- 
ence for our great Creator, principles of humanity, and the dictates of 
common sense, must convince all those who reflect upon the subject, 
that government was instituted to promote the welfare of mankind, 
and ought to be administered for the attainment of that end — 
Honour, justice, and humanity, forbid us tamely to surrender that 
freedom which we received from our gallant ancestors — The arms 
we have been compelled by our enemies to assume, we will . . . employ 
for the preservation of our liberties; being with one mind resolved to 
die freemen rather than to live slaves. [And finally] in defence of the 
freedom that is our birth-right, and ... for the protection of our prop- 
erty, ... we have taken up arms. "^ 

Then, in 1776, the Continental Congress issued a Declaration of 
Independence. Here is the justification the rebels gave for their actions: 

We hold these truths to be self-evident, that all men are cre- 
ated equal, that they are endowed by their Creator with cer- 
tain unalienable Rights, that among these are Life, Liberty and 
the pursuit of Happiness. That to secure these rights. Govern- 
ments 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 aboUsh it, and to institute new 
Government, laying its foundation on such principles and or- 



52 / Robert Higgs 

ganizing its powers in such form, as to them shall seem most 
likely to effect their Safety and Happiness. 

The Declaration continued by explaining that the rebels had not rashly 
taken up arms against the established government: 

Governments long established should not be changed for light 
and transient causes; and accordingly all experience hath 
shown 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 Ob- 
ject evinces a design to reduce them under absolute Despo- 
tism, it is their right, it is their duty, to throw off such Govern- 
ment, and to provide new Guards for their future security. 

The Declaration went on to present a lengthy list of grievances against 
the King, including the complaint that he had ''erected a multitude of 
New Offices, and sent hither swarms of Officers to harass our People, 
and eat out their substance." 

During the Revolutionary era, individual states enacted bills of 
rights. The Virginia Bill (1776), almost entirely drafted by George Ma- 
son, began, "all men are by nature equcilly free and independent, and 
have certain ii\herent rights ^ 

The Massachusetts Bill (1778), written almost entirely by John 
Adams, began, "all men are bom free and equal, and have certain 
natural, essential, and unalienable rights; among which may he reck- 
oned the right of enjoying and defending their lives and liberties; that 
of acquiring, possessing, and protecting property; in fine, that of seek- 
ing and obtaining their safety and happiness." Article seven of the 
Massachusetts Bill of Rights declared: "Government is instituted for 
the common good . . . and not for the profit, honor or private interest 

of any one man, family, or class of men " And Article 10 read: "Each 

individual of the society has a right to be protected by it in the enjoy- 
ment of his life, liberty, and property No part of the property of 

any individual can, with justice, be taken from him, or applied to 
public uses, without his own consent, or that of the representative 
body of the people — And whenever the public exigencies require 
that the property of any individual should be appropriated to public 
uses, he shall receive a reasonable compensation therefor."^ 

Later, in the national Bill of Rights, the ten amendments to the 
United States Constitution ratified in 1791, many of the rights pro- 



Individual Rights / 53 

claimed by the individual states in the 1770s became part of the entire 
country s supreme law. Later stiU, in the 14th Amendment, added to 
the Constitution in 1868, each state was forbidden to "deprive anv 
person of life, Uberty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal protection of the 
laws. 

Qearly, government in the United States was founded on an ex- 
pUcit recognition of rights— nahiral, inalienable rights of each individ- 
ual—and governments were understood to be legitimate only insofar 
as they acted to protect those rights. Individuals and their rights were 
regarded as morally prior to government and its mandates; govern- 
ments were to serve the people, not the people the government. Gov- 
ernment was justifiable only as an instrument of the governed. When 
governments proved abusive of their powers, when they destroyed 
rather than protected the natural rights of individuals, the people had 
a right to defend their rights and to overturn the government that 
threatened them. 

Current Suppression of Rights 

Comparing the ideology of the Founders with the currently domi- 
nant ideology, we encounter a stark contrast: on the one hand, the 
deep reg2u*d that the Revolutionary ideals expressed for individual 
rights; on the other hand, the rampant disregard for individual rights 
with which the present governments of the United States — federal, 
state, and local — conduct themselves and justify their actions. To make 
matters worse, not only do most Americans not recognize that their 
governments massively invade rather than protect their rights; most 
Americans actucdly talk as if they live in a free society. 

Many people remain unaware of the extent to which government 
controls a vast range of human conduct in our society because they 
are not themselves on the receiving end of many of the particular 
forms of control. If you are not an automobile designer, you may not 
be aware that the government prescribes many requirements that all 
automobiles must meet. If you are not a real estate developer, you 
may not be aware of the multitude of government permits that must 
be acquired before you may commence building, and of the plethora 
of regulations that constrain how you may build. If you are not a 
pharmaceutical manufacturer, you may not be aware of the long pro- 
cess of testing and certification that must be endured before the gov- 
ernment will permit you to sell your product. If you are not an im- 
porter or exporter, you may not be aware of the many controls and 



54 / Robert Higgs 

paperwork requirements that impede your business. If you are not a 
personnel or payroll officer, you may not be aware of the huge number 
of requirements you must meet with respect to collecting taxes and 
providing benefits to employees, and with respect to the makeup of 
your work force as regards race, sex, and other criteria. If you are not 
a dealer in stocks and bonds, you may not be aware that acting on the 
basis of certain information, which the government considers "inside 
information," may land you in jail. If you do not have complicated 
business or financial dealings, you may not be aware of how exten- 
sively you must give an account of your affairs to the tax authorities. 
If you are not a business person, you may not be aware that any 
number of seemingly proper and mutually beneficial business ar- 
rangements may cause you to be charged with violating the antitrust 
laws. And so on and so on, endlessly. 



Everyday Controls 

But even an ordinary person unavoidably runs up against govern- 
ment controls every day. Perhaps you wake up when your clock radio 
comes on, bringing you signals transmitted by a radio station permit- 
ted to operate only after being granted a license by the Federal Com- 
mimications Commission. You get dressed, putting on clothing and 
shoes that cost you more than they would have if the United States 
government had not restricted the importation of clothing, textiles, 
and footwear. You drive to work in a car constructed in accordance 
with a variety of government regulations; or you ride the bus, paying 
a fare established by a government regulatory commission. You work 
or go to school with people who have been selected in part on the basis 
of govemmentally prescribed rules and quotas regarding race, sex, 
ethnicity, handicap, or veteran status. You eat lunch at a cafe that is 
allowed to operate only after acquiring various permits. You make 
telephone calls and pay for them at a rate set by a public utility com- 
mission. You go home to sit down to an entree of meat sold only after 
mandatory inspection by the Department of Agriculture. What you 
paid for the food reflects the price supports on farm products and the 
restrictions on the importation of farm products into the United States. 
In the evening you turn on the television, watching a program broad- 
cast by a station licensed by the Federal Communications Commis- 
sion. Just before turning in for the night, you may take some medicine 
that you could legally purchase only by prescription and which can 
be sold to you only because it has been approved by the Food and 



Individual Rights / 55 

Drug Administration. Yours has been an uneventful day, yet you have 
moved at every moment within a web woven by government. 

How the United States evolved from a nation that held individual 
rights m high esteem (at least as ideals, if never consistently in prac- 
tice) mto a coUectivist regime in which individual rights are subju- 
gated m counUess distinct ways every hour of every day is a long and 
compUcated story— in many respects, it is the whole story of American 
society during the past 200 years. Not that Uberty diminished at every 
place and time. The emancipation of the slaves, for example, was a 
triumph of liberty against which anything else in our history pales. 
But that was an anomaly, just as the existence of slavery had been an 
anomaly in the early days of the Republic. In most respects the trend, 
sometimes quicker, sometimes slower, was relentlessly toward a less 
and less free society. The pace of the movement accelerated during the 
past 75 years; it shows no sign of slowing now. Each day Americans 
become a little less free. 

The tragedy is that most neither know nor care. Like George Or- 
well's character in 1984, who inhabited a world in which the official 
language held that war was peace and slavery was freedom, most 
Americans have actually learned to love Big Brother. Indeed, they 
spend much of their time actively seeking, or supporting the efforts 
of those who seek, to extend the grip of government over the whole 
of human affairs. Nothing is too intimate or too personal or too impor- 
tant to be left for free individuals to decide: not the education of young 
people, not the care of children or the sick, not even vital decisions 
involving life and death — ^nothing escapes the tentacles of govern- 
ment. 

Lovers of liberty watch in horror as their fellow citizens stitch new 
and unnatural organs onto the Frankenstein monster. One marvels 
that they can take these actions in the name of ''doing good," "being 
fair/' "promoting prosperity," "maintaining national security," and a 
variety of other noble-sounding purposes. Perhaps in some cases they 
know what they cire doing and have simply decided that the loss of 
liberty entailed by the new government power they support is an 
acceptable price to pay for the prospective benefit they anticipate — 
especially when they expect only other people's liberty to be dimin- 
ished. In many cases, though, they surely act with no awareness that 
the new government program entails a further throttling of human 
liberty, an overriding of individual rights. 

In 1991, according to official sources, federal bureaus alone— not 
to mention the 50 states, more than 3,000 counties, and scores of thou- 
sands of cities, townships, and other government units, all imposing 



56 / Robert Higgs 

restraints on individual action — will propose or make final the issu- 
ance of 4,675 new rules. Those are new rules/ When added to all the 
existing rules, laws, ordinances, regulations, decrees, injunctions, or- 
ders, requirements, prohibitions and other official directives, they 
make up a heap of coercive measures so enormous that not even an 
army of lawyers can hope to grasp them all, and tax accountants throw 
up ttieir hands in exasperation. 

Budgetary Tjnranny 

To carry out their thousands of projects, the governments of the 
United States take at gunpoint — remember, payment of taxes is not a 
voluntary contribution — a simi of money beyond human comprehen- 
sion, currently about $2 trillion. Question: How far would total gov- 
ernment revenues, put into the form of a string of two trillion dollar 
bills, reach? Answer: It would stretch from the earth to the sun and 
back, leaving enough of the string to wrap around the earth about 167 
times. And this illustrates just this year's government revenues. Watch 
out for next year! 

Remember the American colonists' complaints about taxation 
without representation? Well, they paid at most a few percent, prob- 
ably no more than 3 percent, of their annual incomes in taxes. Ameri- 
cans now pay about 36 percent of their vastly larger incomes to their 
governments. Much of this huge revenue amounts to taking from 
Peter to pay Paul, then taking from Paul to pay Peter — in order to be 
fair. Along the way, government officials and bureaucrats take a hefty 
broker's commission on each transaction. Fully one worker in seven 
is on the government payroll. Vast numbers of others, supposedly in 
the "private sector," also work for the government, because they do 
what they do only because of government spending, taxing, and, regu- 
lating. 

So utterly devoid of principle is the current activity of U.S. govern- 
ments that no project whatsoever is too silly to exclude from the 
trough. Recall the scandal involving the hundreds of thousands of 
dollars recently appropriated to fix up the boyhood home of Lawrence 
Welk somewhere in the lost reaches of the Dakotas. (The appropria- 
tion was repealed when the news media publicized it heavily, but 
rarely does anyone take much notice of the equally outrageous appro- 
priations that lard the budget.) You probably haven't heard of the 
$566 million appropriated to fly cows to Europe, supposedly to pro- 
mote exports. Or the $107,000 to study the mating habits of the Japa- 
nese quail. Remember, every dollar is taken from you or someone else 



Individual Rights / 57 

at gunpoint. Would you put a gun to someone's head to get money for 
studying the Japanese quail? ^ 

There's much more, including the $2.8 milUon for a fish farm in 
Stuttgart, Arkansas; the $1.3 milHon for repairs to a privately owned 
dam in South Carolina; the $500,000 for the 1992 American Flora Expo- 
sition; and the $49 million for a rock-and-roll museum. Consider next 
the $500,000 to revitalize downtown Ada, Oklahoma— not a place 
many Americans are likely to visit— and the $772,000 to construct a 
skeet shooting club at Tinker Air Force Base. After all, one never 
knows when the Russians will attack with clay pigeons. There is also 
$375,000 to renovate the House of Representatives beauty parlor; plus 
$98 million for Congressional mail no one wants to receive, hyping the 
virtues of your local member of Congress; and $1.5 million to spruce 
up a military golf course. (Is this what the framers of the Constitution 
had in mind by the phrase "provide for the common defense"?) 
There's $7 million to study air pollution— in Mexico City— and $1 
million for the bicycle transportation demonstration project in Ma- 
comb County, Michigan. And the list goes on and on and on.^ 

One could continue indefinitely just listing one-line descriptions 
of ludicrous government projects, which in many cases have no real 
value to anyone except those paid to carry them out. Rarely does the 
budget contain the only kind of projects contemplated by the founders 
of the nation, namely, those of common benefit (that is, of benefit to 
everyone) that are also within the powers enumerated in the Constitu- 
tion as allowable government actions. 

Needless to say, constitutional limits on government action fell 
by the wayside years ago. Where economic interventions are con- 
cerned, the federal government received the blessing of the Supreme 
Court, in a series of cases between 1937 and 1942, to do virtually 
anything authorized by Congress.^ Given that green light, members 
of Congress proved time and again that no scheme to buy votes was 
too outrageous to refuse. Anyone who thinks that taxes must be raised 
to cut the federal government's deficit, because spending already has 
been cut to the bone, should spend some time reading the budget 
documents. 

Democracy Versus Rights 

Of course, we've been told since childhood that all of this is just 
the workings of "democracy," as if taking a vote could decide the 
wisdom or morality of an action. The central purpose of the Constitu- 
tion in the first place was to put limits on the actions of poUtical 



58 / Robert Higgs 

representatives. A majority vote can do nothing to justify an action. 
The majority vote of the people or the Congress can no more justify a 
political action than the majority vote of a gang can justify an assault. 
Majority voting is simply a decision rule for selecting the actions 
that will be taken from the set of all permissible actions. Through the 
years the mantra of "democracy" has been chanted over the most 
morally offensive actions of American governments, as if majority 
voting can make everything okay. It cannot. When governments over- 
ride the rights of individuals, they violate their only raison d'etre. Un- 
der the banner of democracy, the United States has built an engine of 
oppression so vast that it is doubtful whether it can ever be substan- 
tially reduced, much less dismantled. 

Are Rights Justifiable? 

Is it possible that I am taking too seriously some 200-year-old 
rhetoric about human rights, and that I have compounded the blunder 
by supposing that property rights are among the most fundamentcd 
of all human rights? After all, didn't Jeremy Bentham tell us that the 
notion of rights is not only nonsense, it is "nonsense on stilts"? 

I admit that I am no philosopher and that, if called upon to supply 
a proof of the existence of human rights, I cannot provide one. Nor 
am I persuaded by the attempts I've seen of philosophers far better 
prepared than I to give the proof. But as an economist, I am trained 
to ask certain questions: First, what's the alternative? Second, after a 
choice is made, what happens next, and after that, and after that, as 
repercussions of the initial choice continue to have indirect effects? 

Suppose you tell me, there is no such thing as rights; and I reply, 
okay, let's agree that there are none. Later, when a mugger accosts you 
and demands that you surrender your wallet on pain of having your 
throat slashed, am I supposed to feel that you have been wronged? 
Of course, you won't like this event, but the mugger will; it's just your 
personal loss against the mugger's personal gain. 

Or suppose you wake up tomorrow morning and discover that a 
majority vote has been taken, and the majority or its chosen represen- 
tatives have decided that all people like you — in some respect, it 
doesn't matter which — are to report for transportation to concentra- 
tion camps. Well, that's democracy in action. Remember what haf>- 
pened to the Japanese- Americans in 1942. 

If there are no rights, then we'll just have to get along without 
them. But chances are, with no conception of rights, social life wiU be 
pretty much as Hobbes thought: brutish and short, et cetera, or else 



Individual Rights / 59 

everyone wiU end up obeying the person who wields the most power 
at the moment. A society that doesn't take human rights seriously and 
protect them will turn out sooner rather than later to be hellish. Apart 
from whatever one may think about the philosophical stahis of rights 
a world without rights would not meet the aspirations of even the 
mc»t thoroughgoing utiUtarian. So, if one doesn't care whether people 
believe in rights, fine; but one must be prepared to suffer the conse- 
quences. 

We know from history what happens to societies without genuine 
individual rights. From sweeping powers of government, uncon- 
strained by silly notions that all individuals have rights to life, liberty, 
and property, come the Soviet Union and its empire, Nazi Germany, 
Fascist Italy, and Pol Pot's Cambodia as well as today's China, Viet- 
nam, Cuba, and a lot of other loathsome societies that merit the full 
measure of our contempt and sorrow. 

In due course we shall arrive at something similar in the United 
States, for this country is fast proceeding in the direction of subjugat- 
ing all human rights, especially human rights to property, without 
which the others eventually will prove more or less worthless. When 
the government controls everybody's access to newsprint and broad- 
casting channels, freedom of the press won't have any real sub- 
stance — just consider how shamelessly the news media performed 
during the recent war when the government controlled reporters' ac- 
cess to the theater of war. When the government controls the condi- 
tions on which people Ccin obtain or give employment, freedom of 
speech won't matter much — who will jeopardize his job by speaking 
out against the government? When the government controls the man- 
ner in which all goods and services must be produced and the terms 
on which they may be sold, freedom of association won't be worth 
much — what good will it do to have a meeting under those condi- 
tions? A nation without firm private property rights will eventually 
prove unable to defend any human rights whatever. Only citizens who 
have secure private property rights possess a protected, autonomous 
position from which they can challenge their rulers. Our forefathers 
understood this well, but most Americans have forgotten. 

Property Rights Are Human Rights 

Property rights have been slandered throughout most of the 20th 
century, especially by people who contrast property rights and human 
rights, and pose a choice between them. Now, faced with such a 
choice, who wouldn't opt for human rights— far better to worry about 



60 / Robert Higgs 

human beings than about sticks and stones. But this way of posing the 
question is misleading and utterly unacceptable. 

All rights are human rights. It is in the very nature of rights, which 
are morally justifiable claims on the conduct of other persons, that 
only human beings can possess them. Property rights don't belong to 
the factory in which a corporation manufactures its products; they 
belong to the corporation's shareholders, the individual human beings 
who have surrendered other property in voluntary transactions to 
acquire ownership claims on the factory. A related and equally foolish 
idea is that government can tax "business" rather than individuals. 
But bricks and mortar can't pay taxes; only persons can. "Taxing busi- 
ness" is just another term for taxing certain people differently from 
others. 

Property rights are the human rights to decide how property will 
be used, to appropriate the income or other benefits of the property, 
and to transfer the rights of ownership to others in voluntary transac- 
tions. Everyone realizes that some degree of property ownership is 
essential for sustaining human life in society. But many people sup- 
pose that once we go beyond personal property such as clothing, 
furniture, automobiles, perhaps houses, and arrive at "bigger" prop- 
erty such as land, factories, mines, and railroads, private ownership 
no longer is essential. The supposition is wrong. Suppression of pri- 
vate property rights at any level tends to have socially destructive 
consequences. 

Property rights must be lodged somewhere. Even societies that 
pretend to have no private rights in "bigger" property simply lodge 
the rights in the hands of politicians or bureaucrats. Someone, some 
human being, still decides how the property will be used and who 
will receive its benefits. 

But without private property rights, the link is severed between 
rational employment of the property and the rewards or punishments 
of the decision-maker. Irresponsible behavior no longer carries with it 
an automatic punishment. Politicians or bureaucrats are free to use 
resources destructively — as they have in socialist economies for de- 
cades and as they have in the socialized sectors of the United States 
such as public education or management of public forests or range- 
lands or national defense production — and still the decision-makers 
may thrive. 

Private property rights create an incentive to employ resources in 
their most highly valued uses as determined by consumers. Socialized 
property arrangements insulate the decision-makers from the prefer- 
ences of consumers, who invariably suffer, as they have throughout 



Individual Rights / 61 

the socialist world since 1917, and as the unfortunate people of those 
places, some of whom now are free to speak, readily attest. 

For Sale: A Precious Birthright 

As ever more rules and regulations curtail the decisions individu- 
als may make for themselves, as ever greater proportions of people's 
income are siphoned off to be used as our leaders decide, as every 
species of special interest pays tribute to predatory politicos who suck 
the marrow from the bones of civil society, individuals are reduced to 
ever more meaningless atoms in the social cosmos. All of life becomes 
politicized, which means corrupted by power. And as individual lib- 
erty and individual rights die, all that is decent in human society dies 
with them. 

Our Revolutionary forebears complained that King George had 
"erected a multitude of New Offices, and sent hither swarms of Offi- 
cers to harass our People, and eat out their substance." But Jefferson 
and Madison could not have dreamed, even in their most horrifying 
nightmares, of the swarms of bureaucrats upon us now, harassing us 
and eating our substance. The nation's founders could not have under- 
stood how cheaply a wealthy society of their descendants would sell 
its precious birthright of liberty and justice and respect for individual 
rights. 

No individual, of course, can do much about the state of the nation. 
But each of us has a mind, and with some effort one can use it to think. 
The next time you hear of a proposal to employ the government for 
still another noble purpose, think! Ask yourself: At what cost to indi- 
vidual liberty will this project operate? And how can we preserve our 
remaining liberties if we give our assent piecemeal to the thousands 
of new proposals for enlarging and strengthening government that 
pour forth each year? What will be the end result of these piranha 
attacks on human rights? And do you want to live in that kind of 
world? 



1. Ludwig von Mises, The Ultimate Foundation of Economic Science: An Essay on 
Method (Kansas City, Kan.: Sheed Andrews and McMeel 1978), p. 98. 

2. Thomas Hobbes, Philosophical Rudiments Concerning Government, as reprinted in 
Hobbes: Selection, edited by Frederick J. E. Woodbridge (New York: Charles Scribner's 
Sons, 1930), p. 267. 

3. "DeclaraHon and Resolves of the First Continental Congress," in Documents of 
American History, edited by Henry Steele Commager (New York: Appleton-Century- 
Crofts, 1948), pp. 83-4. 



62 / Robert Higgs 

4. "Declaration of the Causes and Necessity of Taking Up Arms/' in Documents, 
pp. 92-5. 

5. "The Virginia Bill of Rights/' in Documents, p. 103. 

6. "Massachusetts Bill of Rights/' in Documents, pp. 107-08. 

7. Unified agenda of Federal regulations, as cited in Robert Pear, "In Bush Presi- 
dency, the Regulators Ride Again," The New York Times, April 28, 1991. 

8. The preceding examples, and many more, appear in a series of stories on Con- 
gress in New Dimensions, March 1991, pp. 22-57. 

9. Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American 
Government (New York: Oxford University Press, 1987), pp. 180-94. 



A Tale of Two Revolutions 
by Robert A. Peterson 



The year 1989 marks the 200th anniversary of the French Revolu- 
tion. To celebrate, the French goverrunent is throwing its biggest party 
in at least 100 years, to last all year. In the United States, an American 
Committee on the French Revolution has been set up to coordinate 
programs on this side of the Atlantic, emphasizing the theme, 'Trance 
and America: Partners in Liberty." 

But were the French and American Revolutions really similar? 
On the surface, there were parallels. Yet over the past two centuries, 
many observers have likened the American Revolution to the blood- 
less Glorious Revolution of 1688, while the French Revolution has 
been considered the forerunner of the many modem violent revolu- 
tions that have ended in totalitarianism. As the Russian naturalist, 
author, and soldier Prince Piotr Kropotkin put it, ''What we learn from 
the study of the Great [French] Revolution is that it was the source of 
all the present communist, anarchist, and socialist conceptions/'^ 

It is because the French Revolution ended so violently that many 
Frenchmen are troubled about celebrating its 200th anniversary. 
French author Leon Daudet has written: "Commemorate the French 
Revolution? That's like celebrating the day you got scarlet fever." An 
anti-89 movement has even begun to sell mementos reminding today's 
Frenchmen of the excesses of the Revolution, including Royalist black 
armbands and calendars that mock the sacred dates of the French 
Revolution. 

The French should indeed be uneasy about their Revolution, for 
whereas the American Revolution brought forth a relatively free econ- 
omy and limited government, the French Revolution brought forth 
first anarchy, then dictatorship. 

Eighteenth-century France was the largest and most populous 
country in western Europe. Blessed with rich soil, natural resources, 
and a long and varied coastline, France was Europe's greatest power 
and the dominant culhire on the continent. Unfortunately, like all the 
other countries of eighteenth-century Europe, France was saddled 



Mr. Peterson is headmaster of The Pilgrim Academy in Egg Harbor City, New 
Jersey. This article was originally published in the August 1989 issue of The Freeman. 



63 



64 / Robert A. Peterson 

with the economic philosophy of mercantilism. By discouraging free 
trade with other countries, mercantilism kept the economies of the 
European nation-states in the doldrums, and their people in poverty. 

Nevertheless, in 1774, King Louis XVI made a decision that could 
have prevented the French Revolution by breathing new life into the 
French economy: he appointed Physiocrat Robert Turgot as Controller 
General of Finance. The Physiocrats were a small band of followers of 
the French physician Francois Quesnay, whose economic prescriptions 
included reduced taxes, less regulation, the elimination of govern- 
ment-granted monopolies and internal tolls and tariffs — ideas that 
found their rallying cry in the famous slogan, "laissez-faire, laissez- 
passer." 

The Physiocrats exerted a profound influence on Adam Smith, 
who had spent time in France in the 1760s and whose classic The 
Wealth of Nations embodied the Physiocratic attack on mercantilism 
and argued that nations get rich by practicing free trade.^ Of Turgot, 
and the Physiocrats, the great French statesman and author Frederic 
Bastiat (1801-1850) wrote: "The basis of their whole economic system 

may be truly said to lie in the principle of self-interest The only 

function of government according to this doctrine is to protect life, 
liberty, and property."^ 

Embracing the principle of free trade not just as a temporary expe- 
dient, but as a philosophy, Turgot got the king to sign an edict in 
January 1776 that abolished the monopolies and special privileges of 
the guilds, corporations, and trading companies. He also abolished the 
forced labor of the peasants on the roads, the hated corvee. He then 
dedicated himself to breaking down the internal tariffs within France. 
By limiting government expense, he was able to cut the budget by 60 
million livres and reduce the interest on the national debt from 8.7 
million livres to 3 million livres. 

Had Turgot been allowed to pursue his policies of free trade and 
less government intervention, France might very well have become 
Europe's first "common market" and avoided violent revolution. A 
rising tide would have lifted all ships. Unfortunately for France and 
the cause of freedom, resistance from the Court and sp>ecial interests 
proved too powerful, and Turgot was removed from office in 1776. 

"The dismissal of this great man," wrote Voltaire, "crushes me 

Since that fatal day, I have not followed anything . . . and am waiting 
patiently for someone to cut our throats."^ Turgot's successors, follow- 
ing a mercantilist policy of government intervention, only made the 
French economy worse. In a desperate move to find money in the face 
of an uproar across the country and to re-establish harmony, Louis 



A Tale of Two Revolutions / 65 

XVI agreed to convene the Estates-General for May 1789. Meanwhile, 
the king's new finance minister, Jacques Necker, a Swiss financial 
expert, delayed the effects of mercantilism by importing large amounts 
of grain. 

On May 5, the Estates-General convened at Versailles. By June 17, 
the Third Estate had proclaimed itself the National Assembly. Three 
days later, the delegates took the famous Tennis Court Oath, vowing 
not to disbcind until France had a new constitution. 

But the real French Revolution began not at Versailles but on the 
streets of Paris. On July 14, a Parisian mob attacked the old fortress 
known as the Bastille, liberating, as one pundit put it, ''two fools, four 
forgers and a debaucher." The Bastille was no longer being used as a 
political prison, and Louis XVI had even made plans to destroy it. 
That made little difference to the mob, who were actually looking for 
weapons. 

Promising the guards safe conduct if they surrendered, the leaders 
of the mob broke their word and hacked them to death. It would be 
the first of many broken promises. Soon the heads, torsos, and hands 
of the Bastille's former guardians were bobbing along the street on 
pikes. "In all," as historian Otto Scott put it, "a glorious victory of 
unarmed citizens over the forces of tyranny, or so the newspapers and 
history later said."^ The French Revolution had begim. 

Despite the bloodshed at the Bastille and the riots in Paris, there 
was some clear-headed thinking. Mirabeau wanted to keep the Crown 
but restrain it. "We need a government like England's," he said.^ But 
the French not only hated things English, they even began to despise 
their own cultural heritage — the good as well as the bad. On October 
5, the Assembly adopted the Declaration of the Rights of Man and the 
Citizen — a good document all right, but only if it were followed. 

Twenty-eight days later, the Assembly showed they had no inten- 
tion of doing so: cdl church property in France was confiscated by the 
government. It was the wrong way to go about creating a free society. 
CertairUy the Church was responsible for some abuses, but seeking to 
build a free society by undermining property rights is like cutting 
down trees to grow a forest. Such confiscation only sets a precedent 
for further violation of property rights, which in turn violates individ- 
ual rights— the very rights of man and the citizen the new government 
was so loudly proclaiming. By confiscating church property— no mat- 
ter how justified— France's Revolutionary leaders showed that they 
weren't interested in a true free society, only in one created in the 
image of tiieir own philosophers. As Bastiat later pointed out, they 
were among the modem world's first social engineers. 



66 / Robert A. Peterson 

Soon France began to descend into an abyss in which it would 
remain for the next 25 years. In towns where royalist mayors were still 
popular, bands of men invaded town halls and killed city magistrates. 
Thousands of people sold their homes and fled the country, taking 
with them precious skills and human capital. Francois Babeuf, the first 
modem commimist, created a Society of Equals dedicated to the aboli- 
tion of private property and the destruction of all those who held 
property. The king's guards were eventually captured and killed. The 
Marquis de Sade, from whom we get the term sadism, was released 
from prison. The Paris Commune took over control of Paris. 

Fiat Money Inflation 

The actions of the government were even more radical than those 
of the people at large. In order to meet the continuing economic crisis, 
the Assembly resorted to paper money — the infamous assignats, 
backed ostensibly by the confiscated church property. Although most 
of the delegates were aware of the dangers of paper money, it was 
thought that if the government issued only a small amount — and that 
backed up by the confiscated property — the assignats would not create 
the kind of economic disaster that had accompanied the use of paper 
money in the past. 

But as had happened again and again through history, the govern- 
ment proved unable to discipline itself. As Andrew Dickson White 
put it in his Fiat Money Inflation in France: "New issues of paper were 
then clamored for as more drams are demanded by a drunkard. New 
issues only increased the evil; capitalists were all the more reluctant 
to embark their money on such a sea of doubt. Workmen of all sorts 
were more and more thrown out of employment. Issue after issue of 
currency came; but no relief resulted save a momentary stimulus 
which aggravated the disease."^ 

Writing from England in 1790, long before the French inflation had 
done its worst, Edmund Burke saw the danger of fiat currency. Ac- 
cording to Burke, issuing assignats was the government's pat answer 
to any problem: "Is there a debt which presses them? Issue assignats. 
Are compensations to be made or a maintenance decreed to those 
whom they have robbed of their free-hold in their office, or expelled 
from their profession? Assignats. Is a fleet to be fitted out? Assig- 
nats — Are the old assignats depreciated at market? What is the rem- 
edy? Issue new assignats." The leaders of France, said Burke, were like 
quack doctors who urged the same remedy for every illness. 

Burke saw in the French Revolution not a decreaise in the power 



A Tale of Two Revolutions / 67 

of the state, but an increase in it: "The establishment of a system of 
liberty would of course be supposed to give it [France's currency] new 
strength; and so it would actually have done if a system of liberty had 
been established." As for the confiscation of property— first that of the 
Catholic Church then that of anyone accused of being an enemy of the 
Revolution — Burke said: "Never did a state, in any case, enrich itself 
by the confiscation of the citizens."^ 

But the issuing of assignats was only the begiiming. In the spring 
of 1792, the first Committee of Public Safety was established, charged 
with judging and purushing traitors. Soon the streets of Paris began 
to run with blood, as thousands of people were killed by the guillotine. 
The following fall, the French government announced that it was pre- 
pared to help subject peoples everywhere win their freedom. Thus, 
instead of peacefully exporting French products and French ideas on 
liberty, the French began exporting war and revolution . . . hence the 
saying, "When France sneezes, the whole world catches cold." 

As more soldiers were needed to "liberate" the rest of Europe, 
France instituted history's first universal levy — the ultimate in state 
control over the lives of its citizens. Meanwhile, for opposing the 
Revolution, most of the city of Lyons was destroyed. And Lafayette, 
who at first had embraced the Revolution, was arrested as a traitor. 

Stifling Controls 

Soon a progressive income tax was passed, prices on grain were 
fixed, and the death penalty was meted out to those who refused to 
sell at the government's prices. Every citizen was required to carry an 
identity card issued by his local commune, called, in an OrweUian 
twist of language. Certificates of Good Citizenship. Every house had 
to post an outside listing of its legal occupants; the Revolutionary 
Communes had committees that watched everyone in the neighbor- 
hood; and special passes were needed to travel from one city to an- 
other. The jails were soon filled with more people than they had been 
under Louis XVI. Eventually, there flooded forth such a torrent of 
laws that virhially every citizen was technically guilty of cnmes 
against the state. The desire for absolute equaUty resulted m every- 
one's being addressed as "citizen," much as the modem-day Commu- 
nist is referred to as "comrade." i j ^ ji^ o 

Education was centralized and bureaucratized. Tlie old traditaons 
dialects, and local allegiances that helped prevent ^f ^^r^^^^^^-^^^ 
thus tyranny-were swept away as the Assembly placed a mathemati- 
cal grid of departments, cantons, and municipaUties on an unsuspect- 



68 / Robert A. Peterson 

ing France. Each department was to be run exactly as its neighbor. 
Since "differences" were aristocratic, plans were made to erase indi- 
vidual cultures, dialects, and customs. In order to accomplish this, 
teachers — paid by the State — ^began to teach a uniform language. Cur- 
riculum was controlled totally by the central government. Summing 
up this program, Saint-Just said, "Children belong to the State," and 
advocated taking boys from their families at the age of five.^ 

So much of modem statism — with all of its horror and disregard 
for individualism — ^began with the French Revolution. The "purge," 
the "commune," the color red as a symbol of statism, even the political 
terms Left, Right, and Center came to us from this period. The only 
thing that ended the carnage — inside France, at least — ^was "a man on 
horseback," Napoleon Bonaparte. The French Revolution had brought 
forth first anarchy, then statism, and finally, dictatorship. Had it not 
been for the indomitable spirit of the average Frenchman and France's 
position as the largest country in Western Europe, France might never 
have recovered. 

Now contrast all of this with the American Revolution — more 
correctly called the War for Independence. The American Revolution 
was different because, as Irving Kristol has pointed out, it was "a mild 
and relatively bloodless revolution. A war was fought to be sure, and 
soldiers died in that war. But . . . there was none of the butchery which 
we have come to accept as a natural concomitant of revolutionary 
warfare — There was no 'revolutionary justice'; there was no reign 
of terror; there were no bloodthirsty proclamations by the Continental 
Congress."io 

A "Conservative Revolution" 

The American Revolution was essentially a "conservative" move- 
ment, fought to conserve the freedoms America had painstakingly 
developed since the 1620s during the period of British "salutary 
neglect" — in reality, a period of laissez-faire government as far as the 
colonies were concerned. Samuel Eliot Morison has pointed out: 
"[T]he American Revolution was not fought to obtain freedom, but to 
preserve the liberties that Americans already had as colonials. Indepen- 
dence was no conscious goal, secretly nurtured in cellcir or jungle by 
bearded conspirators, but a reluctant last resort, to preserve 'life, lib- 
erty, and the pursuit of happiness.' "^^ 

A sense of restraint pervaded this whole period. In the Boston Tea 
Party, no one was hurt and no property was damaged save for the 
tea. One patriot even returned the next day to replace a lock on a sea 



A Tale of Two Revolutions / 69 

chest that had been accidentaUy broken.12 This was not the work of 
anarchists who wanted to destroy everything in their way, but of 
Englishmen who simply wanted a redress of grievances. 

After the Boston Massacre, when the British soldiers who had 
fired upon the crowd were brought to trial, they were defended by 
American lawyers James Otis and John Adams. In any other "revolu- 
tion/' these men would have been calling for tlie deaths of the offend- 
ing soldiers. Instead, they were defending them in court. 

When the war finally began, it took over a year for the colonists 
to declare their independence. During that year, officers in the Conti- 
nental Army still drank to ''God save the King.'' When independence 
was finally declared, it was more out of desperation than careful plan- 
ning, as the colonists sought help from foreign nations, particularly 
the French. In the end, it was the French monarchy— not the Revolu- 
tionists, as they had not yet come to power — that helped America win 
its independence. 

Through the seven years of the American war, there were no mass 
executions, no "reigns of terror," no rivers of blood flowing in the 
streets of America's cities. When a Congressman suggested to George 
Washington that he raid the countryside around Valley Forge to feed 
his starving troops, he flatly refused, saying that such an action would 
put him on the same level as the invaders. 

Most revolutions consume those who start them; in France, Marat, 
Robespierre, and Danton all met violent deaths. But when Washington 
was offered a virtual dictatorship by some of his officers at Newburgh, 
New York, he resisted his natural impulse to take command and urged 
them to support the republican legislative process. Professor Andrew 
C. McLaughlin has pointed out: "To teach our youth and persuade 
ourselves that the heroes of the controversy were only those taking 
part in tea-parties and various acts of violence is to inculcate the belief 
that liberty and justice rest in the main upon lawless force. And yet 
as a matter of plain fact, the self-restraint of the colonists is the striking 
theme; and their success in actually establishing institutions under 
which we still live was a remarkable achievement. No one telling the 
truth about the Revolution will attempt to conceal the fact that there 
was disorder. . . . [Yet] we find it marked on the whole by constructive 
political capacity. "^^ 

No Assault on Freedom of Religion 

In America, unUke France, where reUgious dissenters were put to 
death, there was no wholesale assault on freedom of religion. At the 



70 / Robert A. Peterson 

Constitutional Convention in 1787, there were devout Congregational- 
ists. Episcopalians, Dutch Reformed, Lutherans, Quakers, Presbyteri- 
ans, Methodists, and Roman Catholics. Deist Ben Franklin asked for 
prayer during the Convention, while several months later George 
Washington spoke at a synagogue. Ehoring the Revolution, many 
members of the Continental Congress attended sermons preached by 
Presbyterian John Witherspoon, and while Thomas Jefferson worked 
to separate church and state in Virginia, he personally raised money 
to help pay the salaries of Anglican ministers who would lose their 
tax-supported paychecks. In matters of religion, the leaders of Amer- 
ica's Revolution agreed to disagree. 

Finally, unlike the French Revolution, the American Revolution 
brought forth what would become one of the world's freest societies. 
There were, of course, difficulties. EHiring the "critical period" of 
American history, from 1783 to 1787, the 13 states acted as 13 separate 
nations, each levying import duties as it pleased. As far as New York 
was concerned, tariffs could be placed on New Jersey cider, produced 
across the river, as easily as on West Indian rum. The war had been 
won, but daily battles in the marketplace were being lost. 

The U.S. Constitution changed all that by forbidding states to levy 
tariffs against one another. The result was, as John Chamberlain put 
it in his history of American business, "the greatest 'common market' 
in history. "^^ The Constitution also sought to protect property rights, 
including rights to ideas (patents and copyrights) and beliefs (the First 
Amendment). For Madison, this was indeed the sole purpose of civil 
government. In 1792 he wrote: "Government is instituted to protect 

property of every sort This being the end of government, that alone 

is a just government which impartially secures to every man whatever 
is his own."'^^ Alexander Hamilton, the first Secretary of the Treasury, 
helped restore faith in the public credit with his economic program. It 
was at his urging that the U.S. dollar was defined in terms of hard 
money — silver and gold. (At the Constitutional Convention, the dele- 
gates were so opposed to fiat paper money that Luther Martin of 
Maryland complained that they were "filled with paper money dread.") 

Hamilton's centralizing tendencies would have been inappropri- 
ate at any other time in American history; but in the 1790s, his pro- 
gram helped 13 nations combine to form one United States. Had suc- 
ceeding Treasury Secretaries continued Hamilton's course of strength- 
ening the federal government, at the expense of the states, America's 
economic expansion would have been stillborn. 

Fortimately, when Jefferson came to power, he brought with him 
the Swiss financier and economist Albert Gallatin, who served Jeffer- 



A Tale of Two Revolutions / 71 

son for two terms and Madison for one. Unlike his fellow countryman 
Necker, whose mercantilist policies only hastened the coming of the 
French Revolution, Gallatin was committed to linuted government 
and free market economic policies. Setting the tone for his Administra- 
tion, Jefferson said in his first inaugural address: ''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." 

For the next eight years, Jefferson and Gallatin worked to reduce 
the nation's debt cis well as its taxes. The national debt was cut from 
$83 million to $57 million, and the number of Federal employees was 
reduced. Despite the restrictions on trade caused by Napoleon's Berlin 
and N4ilan decrees, and the British blockade of Europe, American busi- 
nessmen continued to develop connections aroimd the world. By the 
end of Jefferson's first term, he was able to ask, "What farmer, what 
mechanic, what laborer ever sees a tax gatherer in the United 
States?"*^ By 1810, America was well on its way to becoming the 
world's greatest economic power. France, meanwhile, still languished 
under the heavy hand of Napoleon. 

In his Report to the House of Representatives that same year, 
Gallatin summed up the reasons for America's prosperity: "No cause 
... has perhaps more promoted in every respect the general prosperity 
of the United States than the absence of those systems of internal 
restrictions and monopoly which continue to disfigure the state of 
society in other countries. No law exists here directly or indirectly 
confining man to a particular occupation or place, or excluding any 
citizen from any branch he may at any time think proper to pursue. 
Industry is in every respect perfectly free and unfettered; every species 
of trade, commerce, art, profession, and manufachire being equally 
opened to all without requiring any previous regular apprenticeship, 
admission, or hcense."'' The American Revolution was foUowed by 
200 yeare of economic growth under the same government By con- 
trast, the French Revolution was foUowed by poUtical instabihty, m- 
cluding three revolutions, a directorate, a Reign of Terror, a dictator- 
ship, a restoration of the Bourbon Monarchy, another monarchy, and 
five repubUcs. Today, socialism has a greater hold in France Jan i^^ 
does iA America-although America is not far behind. Even ti^ough 
they wer^ close in time, it was the French ^-^^^^'^^^ ^^^"^ ^^^ 
pattern for the Russian Revolution and other modem revolutions, not 

the American. 



72 / Robert A. Peterson 

Bastiat's Opinion 

Frederic Bastiat clearly saw the difference between the two. The 
French Revolution, he argued, was based on the idea of Rousseau that 
society is contrary to nature, and therefore must be radically changed. 
Because, according to Rousseau, the "social contract" had been vio- 
lated early in man's history, it allowed all parties to that contract to 
return to a state of "natural liberty." In essence, what Rousseau was 
saying was, "Sweep aside all the restraints of property and society, 
destroy the existing system. Then you will be free, free to lose yourself 
in the collective good of mankind, under my care."^^ 

The social architects who emerged out of the chaos of the French 
Revolution included Robespierre and Napoleon. In his analysis of 
Robespierre, Bastiat said: "Note that when Robespierre demands a 
dictatorship, it is ... to make his own moral principles prevail by 
means of terror Oh, you wretches! . . . You want to reform every- 
thing! Reform yourselves first! This will be enough of a task for you."^^ 

In Bastiat's opinion, the French Revolution failed because it repu- 
diated the very principles upon which a free society is based: self- 
government, property rights, free markets, and limited civil govern- 
ment. The American Revolution, however, brought forth the world's 
freest society: "Look at the United States," wrote Bastiat. "There is no 
coimtry in the world where the law confines itself more rigorously to 
its proper role, which is to guarantee everyone's liberty and property. 
Accordingly, there is no country in which the social order seems to 
rest on a more stable foundation — This is how they understand 
freedom and democracy in the United States. There each citizen is 
vigilant with a jealous care to remain his own master. It is by virtue 
of such freedom that the poor hope to emerge from poverty, and that 
the rich hope to preserve their wealth. And, in fact, as we see, in a 
very short time this system has brought the Americans to a degree of 
enterprise, security, wealth, and equality of which the annals of the 

human race offer no other example [In America] each person can 

in full confidence dedicate his capital and his labor to production. He 
does not have to fear that his plar\s and calculations will be upset from 
one instant to another by the legislature. "^^ 

Bastiat did see two inconsistencies in the American Republic: slav- 
ery ("a violation of the rights of a person") and tariffs ("a violation of 
the right to property"). According to Bastiat, these were the two issues 
that would divide America if they were not dealt with speedily. 

What was the answer for America as well as France? "Be respon- 



A Tale of Two Revolutions / 73 

sible for ourselves," said Bastiat. ''Look to the State for nothing beyond 
law and order. Count on it for no wealth, no enlightenment. No more 
holding it responsible for our faults, our negligence, our improvi- 
dence. Count only on ourselves for our subsistence, our physical, intel- 
lectual, and morcd progress! "^i 

On the 200th anniversary of the French Revolution, Frenchmen 
and Americans can truly become partners in liberty by working to- 
ward the principles advocated by Bastiat, America's Founding Fa- 
thers, and others: limited government, private property, free markets, 
and free men. 



1. Piotr Kropotkin, The Great French Revolution (New York: Putnam's Sons, 1909), 
Introduction. 

2. So strong were the connections between the Physiocrats and Adam Smith that, 
according to the French economists Charles Gide and Charles Rist, "But for the death 
of Quesnay in 1774 — two years before the publication of The Wealth of Nations — ^Smith 
would have dedicated his masterpiece to him." Later Frederic Bastiat lumped Smith, 
Quesnay, and Turgot together as "my guides and masters." Dean Russell, Frederic Bas- 
tiat: Ideas and Influence (Irvington-on-Hudson. N.Y.: The Foundation for Economic Edu- 
cation, 1%9), pp. 58, 19. 

3. Russell, p. 20. 

4. Peter Gay and R. K. Webb, Modem Europe to 1815 (New York: Harper and Row, 
1973), p. 462. 

5. Otto J. Scott, Robespierre: The Voice of Virtue (New York: Mason and Lipscomb 
Publishers, 1974), pp. 59-61. 

6. Ibid., p. 54. 

7. Andrew Dickson White, Fiat Money Inflation in France (Irvington-on-Hudson, 
N.Y.: The Foundation for Economic Education, 1959), p. 107. 

8. Edmund Burke, Reflections on the Revolution in France (Indianapolis: The Bobbs- 
Merrill Co., 1955, originally published in 1790), pp. 275-276, 280. 

9. Scott, pp. 223-224. 

10. Benjamin Hart, Faith and Freedom (Dallas: Lewis and Stanley, 1988), p. 301. 

11. Samuel Eliot Morison, The Oxford History of the American People (New York: 
Oxford University Press, 1965), p. 182. ^ n u 

12. Gene Fisher and Glen Chambers, The Revolution Myth (Greenville, S.C.: Bob 
Jones University Press, 1981), p.18. 

13. Andrew C. McLaughlin, The Foundations of American Constitutionalism (New 

York: Fawcett, 1932, 1961), pp. 88-89. 

14. John Chamberlain, The Enterprising Americans: A Business History of the United 
States (New York: Harper and Row Publishers, 1974, 1981), p. 37. 

15. Letters and Other Writings of James Madison. Vol. IV (New York: R. Worthmgton, 

1 QPil\ r^ A7ft 

16.' James Richardson, ed., A Compilation of the Messages and Papers of the Presidents, 
Vol. 1 (New York: Bureau of National Literature, 1897) p. 367. ^ ,^ r^^^^p 

17. John M. Blum, et al. The National Experience, Part I (New York: Harcourt Brace 

Jovanovich, 1963, 1981), p. 213. ,, m v • Ar- 

18. George Charles Roche, Frederic Bastiat: A Man Alone (New Rochelle, N.Y.. Ar 

lington House, 1971), pp. 146-147. 



74 / Robert A, Peterson 

19. Ibid., p. 148. 

20. Ibid., pp. 205-206, 244. 

21. Ibid., p. 164. 



A Law for Governments 
by Clarence B. Carson 



According to the lore of our time, business monopolies are highly 
dangerous — so dangerous in their threat to the commonweal that they 
must either be prevented or regulated and controlled. For many years, 
attention has been focused on the supposed untoward character of 
business activities and of how the innocent may fall victim to them. 
This emphasis has drawn men's eyes and attention away from both 
the source of harmful business monopoly and the noncommercial mo- 
nopoly which poses the greatest threat of all to the peace and well- 
being of peoples. That is the monopoly which government has — the 
monopoly of the use of force in a given jurisdiction. All other monopolies 
pale before this one in the potentialities for destructiveness, and it is 
this power alone which can give to business activities potentialities for 
continued and concerted damage. 

Yet, government is not only a great potential danger but also a 
necessity. Unless somebody has a monopoly of the use of force in a 
given jurisdiction, there is likely to be more or less continuous warfare 
as groups contend for control. That there be a monopoly within a 
jurisdiction necessary for peace, and government is also charged with 
keeping the peace — with preventing aggression from abroad, with 
putting down domestic insurrection, with inhibiting assault, decep- 
tion, and with settling disputes which may arise. In short, government 
is not only potentially dangerous but also potentially highly beneficial. 
In any case, it is necessary. 

The dangers of government are manifold: that it will be despotic, 
arbitrary, tyrannical, confiscatory, dictatorial, weak and ineffective, 
strong and overbearing, aggressive, destructive of life and property, 
playing favorites, and so on. Nor is there an abuse of which those who 
govern are capable that has not many times been practiced. Rulers 
have from time immemorial perpetrated aggressive war, deceived 
their own and other peoples, raped and ravished, stolen and confis- 
cated, put the innocent to death, and aUowed the guilty to run loose 
and wreak havoc. To say that governments have also dispensed justice 

D^cTreon has written and taught extensively, specializing in American intellectual 
history. This article was first published in the January 1970 issue of The Freeman. 

75 



76 / Clarence B. Carson 

and maintained the peace is equally true, but it should not mislead as 
to the inherent dangers of such an instrument. 

The existence of government poses a grave and recurring danger. 
It poses a problem, too, which may be stated in various ways. How 
shall this force of government be contained and restrained? How shall 
those who govern— for after all, the danger that government poses 
arises from those who govern— be kept from acting arbitrarily and 
despotically? How shall those who make, administer, and interpret the 
laws themselves be brought imder the law? This last is, in essence, the 
question as it should ever be posed. It should be clear that there is no 
easy answer to it, nor is it likely that the problem will be finally solved. 
Government operates by the exercise of power. To do its job effec- 
tively, it must have a monopoly of the use of force in a jurisdiction. 
Yet such a monopoly makes it most difficult to bring government 
imder the law. There must first be a law for governments. Then, de- 
vices must be found for inducing those who govern to abide by the 
law. 

Natural Law and Constitutions 

In modem (post Renaissance) Western civilization two inter- 
twined devices have been employed to bring those who govern under 
the law — to establish a law for governments. The first — and most fun- 
damental — of these is the natural law theory. The second is the device 
of having a written constitution. 

These methods did not arise in a vacuum. Instead, there were 
compelling circumstances for coming up with some mecins of bringing 
rulers under the law. The major political trend in many European 
countries was toward absolute monarchy in the sixteenth and seven- 
teenth centuries. This meant, in theory, that all power issued from the 
monarch and might be claimed by him. Also, it tended to mean that 
there was nobody to hold the monarch in check, or make him subject 
to the law. The inevitable result was rule at the whim of the monarch — 
arbitrary and despotic government. Not everywhere and at all times 
was it equally the case, but it was certainly the dominant trend. 

The natural law theory provided the foundation, in these circum- 
stances, for bringing government under the rule of law, for delimiting 
the powers of the monarch most particularly. Here was a law above 
and beyond the power of monarchs to alter and to which they, like 
other men, were subject. Natural law theory was not, of course, new 
to the sixteenth and seventeenth centuries. It had been effectively for- 
mulated by the Roman Stoics, and following that formulation became 



A Law for Governments / 77 

a part of the heritage of Western civiHzation. It received new impetus 
not only from the need to find some means for circumscribing the 
powers of monarchs but also from Renaissance humanism and the 
scientific developments of the seventeenth century. 

Some of the early spokesmen for nahiral law theory on the conti- 
nent of Europe were Hugo Grotius (1583-1645), Samuel Pufendorf 
(1632-1694), and Jean Bodin (1530-1596); in England, Richard Hooker 
(1554-1600), James Harrington (1611-1677), and Algernon Sidney 
(1622-1683). From these, and others, it entered a general stream of 
thought to be espoused by such continental European, English, and 
American thinkers as Burlamaqui, Vattel, Beccarai, Locke, Blackstone, 
Montesquieu, John Wise, Jonathan Mayhew, and Thomas Jefferson,' 
until it was the dominant mode of thought in the eighteenth century. ' 

A Law Antecedent to Man 

Basically, the modem natural law theory held that there is a law 
antecedent to man, society, and government, that this law is from 
God, that it is a law which must be observed if each of these is to reach 
its true form and fulfillment. It is discovered by attending to the nature 
of things, and when one attends rightly to the nature of things, he is 
using right reason. When man's nature and the nature of the universe 
are viewed in this fashion, it is found that man has certain natural 
rights: namely, the right to life, to the use of one's faculties, and to the 
fruits of one's labors. Society is natural to man — ^man is a social be- 
ing — for within society he can make those exchanges which satisfy and 
complete him. In like manner, government is necessary for man, for it 
enables him to live in peace, to have fruitful relations with others, and 
keep what is his. 

The great thrust of modem natural law thought was to limit gov- 
ernment to its proper sphere. One historian of natural law says, "Now 
the primary practical object pursued by the theorists of Natural Law 
was the delimitation of an area within which objective Right should 
be withdrawn from the caprice of the legislator, and subjective Right 
should escape the attacks of the State's authority. ... It was thus with 
a new and unprecedented force that the theory of Natural Law was 
able to enter the domain of public law — ^ 

That the natural law set bounds to the actions of government was 
the import of what many of the theorists had to say. Hugo Grotius 
declared that "it is beyond controversy among all good men that if the 
persons in authority command anything contrary to Natural Law or 
the divine precepts, it is not to be done. . . . First, those rulers who are 



78 I Clarence B. Carson 

subject to the people . . . , if they transgress against the laws of the 

State, may not only be resisted, but put to death "^ Burlamaqui 

maintained that "if the abuse of the legislative power proceeds to 
excess, and to the subversion of the fimdamental principles of the laws 
of nature, and of the duties which it enjoins, it is certain that under 
such circimistances, the subjects are by the laws of God not only 
authorized, but even obliged to refuse obedience to all laws of this 
kind."^ John Locke particularized "the bounds which the trust that is 
put in them by the society, and the law of God and nature have set to 
the legislative power of every commonwealth, in all forms of govem- 
ment."^ 

Natural law theory would not, of itself, bring governments under 
the law. Natural law has presumably been in existence since the begin- 
ning of time. Nor have great thinkers from time to time been wanting 
in their imderstanding of its precepts. But as a theory, the natural law 
does not and has not prevented arbitrary and despotic government. 
The second step in bringing under the law those who govern was to 
specify the laws for those who rule in a particular state — to have a 
constitution. 

The British Model 

The British pointed the way to constitutional government. Indeed, 
the British had a long history of attempting to subject their govern- 
ment to the law. Most of this effort was devoted to making the king 
rule by and observe the law. The question was usually phrased in this 
way: Is the king above the law? Sir John Fortescue, the leading legal 
mind of fifteenth century England, maintained that the king was not 
above the law. But Fortescue was not taking a novel position in En- 
glish history, though he may have taken it more pointedly than had 
his predecessors. It had been made dramaticaDy clear at least two 
centuries before that the king should not be considered above the law. 
The main thrust of the Magna Carta which King John signed in 1215 
was his acknowledgment that he must observe the established legal 
procedures in his acts. 

The matter came to a head once more in the seventeenth century, 
and more famous documents were added to the English constitution. 
The Stuart kings claimed absolute powers, and their subjects took 
action to restrain them. Charles I subscribed to the Petition of Right 
which spelled out new limitations on his power. The Bill of Rights, 
proclaimed in the latter part of the seventeenth century, settled the 
matter definitively. The king was brought decisively under the law. 



A Law for Governments / 79 

It was never made so clear, by documents, however, that the other 
branches of government were under the law. The great model of a 
constitution which set forth a thoroughgoing law for government is 
the U. S. Constitution, supplemented by the constihitions of the states 
Here, for the first time effectively, a law for all branches of government 
was committed to paper. That the U. S. Constihition is a law for the 
government it authorizes must not be generally understood. Yet that 
is what it is. Every one of the original passages deals with the powers 
of govenmient, with the authority of those who govern, or with how 
they shall be chosen, for how long they shaU serve, what their qualifi- 
cations shall be, and how the Constitution shall be ratified and 
amended. The Constitution is not a law for the citizenry, except in 
respect to how they shall be governed and what political procedures 
shall be followed. It is a fundamental law for government. 

Limitations upon Government 

This character of the Constitution may be clearly shown by quot- 
ing a few passages from it. Article I, section 1, reads: ''All legislative 
Powers herein granted shall be vested in a Congress of the United 
States, which shall consist of a Senate and House of Representatives." 
The remainder of that portion deals with qualifications of legislators, 
the conduct of their business, and the extent of the legislative author- 
ity. Article II, section 1, reads: "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 — " There follows a 
description of the mode of election, the qualifications for the office, 
how the President may be replaced, and a listing of his powers and 
duties. Article III, section 1, begins: "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." 
This, too, is followed by an account of the authority and jurisdiction 
of the Federal courts. 

Article IV as well as parts of Article I deal with prescriptions for 
and limitations on state governments. For example. Article IV, section 
1, says: "Full Faith and Credit shall be given in each State to the pubUc 
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." Article I, section 10, contains such points as these: "No State 
shall enter into any Treaty . . . ; coin Money; emit BiUs of Credit; pass 



80 / Clarence B. Carson 

any . . . Law impairing the Obligation of Contracts " Article V sets 

forth procedures for amendment. 

Article VI proclaims all earlier debts of the United States valid, 
declares that all laws and treaties made under the authorization of the 
Constitution the supreme law of the land, and prescribes the oath 
binding upon all officers of the United States and of the several states. 
Article VII simply prescribes the method and how many states shall 
be necessary for ratification of the Constitution. 

It is the fact that the Constitution is a law for governments that 
makes it so important that its provisions be rigorously observed. It is 
important, of course, that private individuals abide by the law. It is 
even more important that those who govern abide by the law, for 
when they act lawlessly they do so with the full force of government. 

Separation of Powers 

Drawing up a law for governments was one thing; getting it ob- 
served was something else. The answer to monopolistic abuses in 
private industry is competition. If a company does not serve well or 
its products are exorbitantly priced, in a free market others may enter 
the field and subject that company to the discipline of the marketplace. 
There is not so ready a solution to the problem posed by a govern- 
ment's monopoly of the use of force. Direct competition among gov- 
ernments is a thing to be avoided rather than sought, for direct compe- 
tition in the use of force is warfare. 

Yet, it is possible to use the competition principle in a modified 
form without inviting perpetual warfare. One way that this has been 
done is by the separation of powers within the government so that 
those who govern may check and restrain one another. The famous 
formulation of this doctrine was made by Montesquieu in The Spirit 
of the Laws. He reasoned in this fashion: 

When the legislative and executive powers are united in the 
same person, or in the same body of magistrates, there can be 
no liberty; because apprehensions may arise lest the same 
monarch or senate should enact tyrannical laws, to execute 
them in a tyrannical manner. 

Again, there is no liberty if the power of judging be not 
separated from the legislative and executive powers. Were it 
joined with the legislative, the life and liberty of the subject 
would be exposed to arbitrary control; for the judge would 



A Law for Governments / 81 

then be the legislator. Were it joined to the executive power, 
the judge might behave with all the violence of an oppressor.^' 

Looking at it in another way, the separation of powers principle may 
be seen as a means of inhibiting tyrannical power by bringing those 
who govern under the law. Whereas, if the powers are joined in a 
single body, there would be nobody to see that it observed the law. 

American Federalism 

The British government was thought by Montesquieu to embody 
the separation-of-powers principle in the eighteenth century. So it did, 
for the monarch was reduced mainly to the execution of the laws. 
Parliament enacted the laws, and there was a more or less independent 
judiciary. Americans accepted Montesquieu's formulation as an article 
of belief and separated the powers of government both in the United 
States Constitution and in those of the states. 

Americans went further than this in retaining as much of the com- 
petitive principle as practicable in order to keep government imder the 
law. They set up a federal system of government, one in which the 
powers of government were dispersed among the general and the 
state governments. Each of these governments was to have a jurisdic- 
tion over the citizenry under it. This made it so that a grasp for power 
by those in one government would tend to endanger the powers of 
those in the other. They might be expected in their own interest to 
resist expansions of power and hence restrain each other. 

Checks and Balances 

An even more subtle form of competition is inherent in the repub- 
lican form of government established in the United States. Those who 
govern derive their tenure from the consent of the people, either di- 
rectly or indirectly. That government be under the law is a condition 
of the Uberty of the people. That is, an increase in the powers of 
government will be at the expense of the people, or some portion of 
them. Hence, the electorate may be jealous of their own prerogatives 
and resist the extension of government power. At the least, they may 
him out of power those poUticians who have displeased them when 
they come up for election. 

Under the influence of Britain and the United States other peoples 
turned with a wiU to the task of establishing a law for their govern- 



82 / Clarence B. Carson 

ments in the nineteenth century. Constitutions were drawn up, elec- 
tive legislatures set up or buttressed, powers balanced and checked, 
and arbitrariness restrained. Limited governments provided for more 
liberty than most peoples had ever known. In many ways, this move- 
ment toward constitutional government reached its peak — and its vir- 
tual culmination — in the wake of World War I when the old autocratic 
governments were overturned, the territories of empires carved up 
into nation-states, and constitutions adopted which were supposed to 
provide extensive liberties for the inhabitants. 

Twentieth-Century Reformers Revert Toward Tyranny 

But a counter tendency had already set in, one which would even- 
tuate in new tyrannies, arbitrary governments, dictatorships, and op- 
pression. The first peoples to fall under the new despotism were the 
Russians, with the establishment of the Soviet Union in the early 1920s. 
They were followed by the Italians, Germans, and many others in 
various degree. Behind much of this thrust was not only the age-old 
desire of those who govern to be unlimited in their exercise of power 
but also a rationale for the concentration and exercise of power. That 
rationale can be called, generically, socialism, though it is known also 
as communism, fascism, collectivism, syndicalism, and "liberalism." 
The animating idea behind it is the determination to use government 
power to make over man and society according to an ideological vi- 
sion of what they should be. The effort to accomplish this is made by 
massive applications of government power. This power is applied in 
order to attempt to manage and control the economy, redistribute the 
wealth of the land, provide favors for the indigent, empower certain 
groups, disable certain others, and bring the whole under the sway of 
government. In some lands, this has been done directly, brutally, and 
dictatorially. In others, such as the United States, the effort has been 
made much more subtly, with a minimum of the show of force, and 
in the framework of other forms of government. In all cases, however, 
the effort has been made by unloosing those who govern and restrict- 
ing and restraining the general populace. 

That tyrannies have made tiieir appearance in some places in our 
century is well known. That some peoples have fallen under the yoke 
of oppression is rather generally recognized. All too often, however, 
this has been attributed to certain evil men — as, for example, Adolf 
Hitler and Joseph Stalin — and not to the more basic development. 
When this latter character is recognized, it should be clear that the task 
is to bring governments under the law. It is, or should be, the pressing 



A Law for Governments / 83 

issue of our times. There has been muc±i talk in recent years in the 
United States of the need to restore law and order. Undoubtedly, there 
is such a need. It is important that citizens obey the law that order 
may prevail. But if it is only the inhabitants who obey the law, their 
obedience will quite often simply aid the establishment of tyranny. 
Those who govern must also obey the law, the law for governments. 
All governments are subject to law — the natural law. Beyond that, they 
may have their particular constitutions which establish the laws for 
those who govern. Rigorous adherence to these is necessary for gov- 
ernment to be limited so that the citizenry may be free. 

1. Otto Gierke, Natural Law and the Theory of Society, Ernest Barker, trans. (Boston: 
Beacon Press, 1957), p. 39. 

2. Wilson O. Clough, ed.. Intellectual Origins of American National Thought (New 
York: Corinth Books, 1%1), pp. 174-75. 

3. Ibid., p. 194. 

4. Ibid., p. 159. 

5. Ibid., p. 186. 



The Fruits of Independence 
by Clarence B. Carson 



The Constitution of 1787 was a culmination. It was the culmination 
of a decade of constitution making in the states and for the United 
States. It was the cubnination of several long traditions. For one, it 
was the culmination of a British tradition of having written acknowl- 
edgements and guarantees of rights and liberties. For another, it was 
the culmination of a colonial tradition of having governments based 
upon charters. And for yet another, it was the fruition of the Judeo- 
Christian and Protestant practice of appealing to the precise written 
word. The Constitution brought to fertile fruition, too, the natural law 
philosophy. The natural rights doctrine, which held a central place in 
the justification of revolt against British rule, now served as a basis for 
protecting rights and freeing people under independence. 

That is a way of saying that liberty was the great motivating theme 
of these years. The desire to preserve and extend their liberty moved 
the Patriots to break from England, to fight a War for Independence, 
and to establish their own governments. The constitution making of 
these years was animated by the determination to establish liberty 
more firmly upon these shores. Of course, those who participated in 
these activities were under the sway of a whole range of motives, 
ranging from the noble to ordinary to sometimes base ones, as people 
always are. But what distinguished them, surely, was the steadfast 
determination to establish liberty. 

Limited Government 

The Founders believed that for people to have liberty and enjoy 
their rights governments must be limited and restrained. They be- 
lieved that government is necessary, of course. It is necessary because 
men without government would do violence to one another; the 
strong would prey upon the weak; the clever would take unjust ad- 
vantage of others; disorder would prevail. Or, to put it another way, 
man is a fallen creature and must be restrained from harming others. 

This article is reprinted from Dr. Carson's book series, A Basic History of the United 
States, and appeared in the September 1984 issue of The Freeman. 



«4 



The Fruits of Independence / 85 

But governments are made up of men as well, and those who govern 
are given unusual power over others. It is especially important, then, 
that government be limited and restrained. If men were angels, Madi- 
son observed, they would have no need of government. And'if they 
had angels to govern them, there would be no need of limiting the 
government. But those are not the conditions that prevail: there are 
fallible men to be governed and fallible men to govern them. That 
being the case, they believed that government should be limited. 

Indeed, there probably have never been a people more jealous of 
their rights or more aware of the dangers of government to them than 
were Americans in the late eighteenth century. The documents of this 
period are replete with warnings about the dangers of extensive or 
unrestrained government power. John Dickinson stated that it was his 
conviction "that every free state should incessantly watch and in- 
stantly take alarm on any addition being made to the power exercised 
over them."^ Thomas Jefferson maintained that ''The natural progress 
of things is for liberty to yield and government to gain ground."^ John 
Adams wrote Thomas Jefferson in 1777 congratulating him on the fact 
that Virginia had been able to fill its quota for the Continental Army 
without resorting to the draft, for he said that a draft "is a dangerous 
Measure, and only to be adopted in great Extremities, even by popular 
Governments." He had observed, he said, that kings gathered armies 
in this fashion as a means of realizing their own ambitions.^ Power 
was the danger, not simply the form of government, according to 
Richard Henry Lee. He thought "that unbridled passions produce the 
same effect, whether in a king, nobility, or a mob. The experience of 
all mankind has proved the . . . disposition to use power wantonly. It 
is therefore as necessary to defend an individual against the majority 
in a republic as against the king in a monarchy."^ 

The dangers of government were fully rehearsed in the Constitu- 
tional Convention. For example, Rufus King of Massachusetts objected 
to setting a date for Congress to meet each year because he "could not 
think there would be a necessity for a meeting every year. A great vice 
in our system was that of legislating too much."^ Roger Sherman 
wanted to make the President absolutely dependent on Congress be- 
cause "An independence of the Executive ... was in his opinion the 
very essence of tyranny. . . ."^ Benjamin Franklin opposed salaries for 
those in the executive branch because, he said, "there are two passions 
which have a powerful influence on the affairs of men. These are 
ambition and avarice; the love of power, and the love of money. Sepa- 
rately, each of these has great force in prompting men to action; but 
when united ... in the same object, they have in many mmds the most 



86 / Clarence B. Carson 

violent effects. Place before the eyes of such men, a post of honour that 
shall be at the same time a place of profit, and they will move heaven 
and earth to obtain it."^ 

James Madison pointed out the dangers of unrestricted majority 
rule: "In all cases where a majority are united by a common interest 
or passion," he said, "the rights of the minority are in danger."^ 

This awareness of the dangers of governmental power, an aware- 
ness sharpened by the history of the abuse of those powers over the 
years, provided the framework for the American limitation of govern- 
ment. It was this that so moved them to separate the powers of gov- 
ernment into three branches — the legislative, executive and judicial — , 
to divide the legislature into two houses, to give the states a check on 
the government through the Senate, and to disperse power between 
the general government and the states. But the Founders went beyond 
separating and dispersing power; they made it necessary for bramches 
to act in concert to accomplish their ends and required a consensus for 
great and important changes. 

Legislation has to pass each of the houses separately and be ap- 
proved by the President to become law. In addition to that, any act is 
supposed to be in keeping with the powers granted under the Consti- 
tution, and the courts may refuse to enforce it. Thus, ultimately, all 
acts may require the approval of all three branches. That would be 
majority rule, however. But if the President vetoes a bill, it can only 
become a law by being passed in each house by at least two-thirds of 
those voting. That moves closer to the requirement of consensus for 
government action. For major changes in the government — constitu- 
tional changes — there is, in effect, a required consensus. The ordinary 
route of amendment is for each of the houses to approve a proposed 
amendment by two-thirds of those voting. Then, the amendment must 
be submitted to the states, and three-fourths of them must approve the 
change. All these are procedural requirements which limit the govern- 
ment. 

The United States government is limited in two other ways by the 
Constitution. First, it is a government of enumerated (named) powers. 
The government is not clothed with all powers but only such as are 
named in the Constitution or necessary to put into effect those that are 
named. James Madison described the situation this way: "The powers 
delegated by the proposed Constitution to the federal government are 
few and defined. Those . . . will be exercised principally on external 
[foreign] objects, as war, peace, negotiation, and foreign commerce; 
with which last the power of taxation will, for the most part, be con- 
nected."9 



The Fruits of Independence / 87 

All legislative powers in the United States government are vested 
by the Constitution in the Congress. Thus, the powers granted to the 
government are mostiy named in the grant of these powers. They are 
listed in Section 8 of Article I, and include the following: 

The Congress shall have Power to lay and collect Taxes. . . . 

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 a uniform Rule of Naturalization. 

The going assumption at the time of the drawing and ratification 
of the Constitution was that the general government had only such 
powers as were granted. But it was not left as an assumption; the 10th 
Amendment spells out the point. It reads, ''The powers not delegated 
to the United States by the Constitution, nor prohibited by it to the 
States, are reserved to the States respectively, or to the people." 

The second way the United States government is limited is by 
specific prohibitions. For excimple, taxation is limited in various ways 
in the Constitution. It required that all direct taxes be apportioned on 
the basis of population (altered later by the 16th Amendment). Other 
taxes must be levied uniformly throughout the United States. All taxa- 
tion must be for the common defense and /or general welfare of the 
United States, which was not a grant of power but a limitation upon 
it. Section 9, Article I contains these among other limitations: 

The Privilege of the Writ of Habeas Corpus shall not be sus- 
pended, unless when in Cases of Rebellion or Invasion the 
public Safety may require it. 

No Tax or Duty shall be laid on articles exported from any 

State. ... 

No Titie of NobiUty shaU be granted by the United States. 

In addition to such prohibitions as these the Bill of Rights or first 
ten amendments to the Constitution consists of limitations on the 
United States government. As already noted, the fear of government 
generaUy, and especially of a central government, resulted in the move 
for a biU of rights. Many were emphatic about the need for such a list 
to limit tiie new government. Thomas Jefferson declared that it was a 
matter of principle witii him "that a biU of rights is what the people 
are entitied to against every government . . . , and what no just govern- 
ment should refuse.-io Patrick Henry insisted that 'If you mtend to 



88 / Clarence B. Carson 

reserve your inalienable rights, you must have the most express stipu- 
lation . . ."11 

At any rate, the Bill of Rights specifically restricts and limits the 
United States government. The first Amendment begins in a way to 
make that crystal clear: ''Congress shall make no law respecting an estab- 
lishment of religion, or prohibiting the free exercise thereof; or abridg- 
ing the freedom of speech," etc. (Italics added.) The others do not point 
to a specific branch of government that may not act, but it is clear from 
the language that government is being restricted by them. For ex- 
ample, the fourth Amendment states that "The right of the people to 
be secure in their persons, houses, papers, and effects, against unrea- 
sonable searches and seizures, shall not be violated, and no Warrants 
shall issue, but upon probable cause — " Since governments are the 
only body that may legally do such things, the article clearly is limiting 
government. So it is with the other parts of the Bill of Rights. 

Not only is the United States government limited by the Constitu- 
tion, but the state governments are as well. They are limited, in the first 
place, by the grant of powers to the United States government, powers 
which, ordinarily, states may only exercise, if at all, with the approval 
of Congress. Second, some powers are absolutely denied to the states, 
e.g.. No State shall enter into any Treaty, Alliance, or Confederation; 
grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; 
make any Thing but gold and silver Coin a Tender in Payment of 
Debts; pass any . . . Law impairing the Obligation of Contracts, or 
grant any Title of Nobility." 

The central feature of the United States Constitution, then, is the 
limitation of government. 

Freeing the Individual 

A major fruit of independence was the freeing of the individual 
from a variety of government compulsions. Governments were re- 
strained that individuals might be free. That was the thrust of the 
making of constitutions during these years. The state constitutions 
were already limiting state governments before the U. S. Constitution 
was written. States frequently had their own bills of rights which had 
as their main purpose the protection of their inhabitants from govern- 
ment. Moreover, many of the restraints which had been imposed un- 
der British rule were removed as independence was achieved. Indeed, 
Americans used the occasion offered by the break from England to 
remove those restraints on the individual that did not accord with 
their outlook. 



The Fruits of Independence / 89 

One of those restraints on the individual was compulsory church 
attendance and the associated taxation and other restrictions support- 
ing an established church. In the main, these restrictions were re- 
moved by disestablishing churches. The establishment most readUy 
dispensed with was that of the Church of England. While that church 
was established in several colonies, it was not popular in most of them, 
many of its clergy remained loyal to England, and dissenters were 
numerous in most states. The movement to disestablish the Church 
of England was greatly aided, too, by the fact that it was a national 
church; membership in it was tied to loyalty to the king of England. 
Since Americans could not accept that any longer, the church was 
speedily disestablished. Several states had no established churches: 
namely. New Jersey, Rhode Island, Pennsylvarua, and Delaware. Even 
so, they used the opportunity afforded by independence to reduce 
religious restraints. 

The established Congregational church was maintained for several 
decades in Massachusetts, Connecticut, and New Hampshire. There 
was, however, some lightening of the load of religious restrictions in 
these states. The Massachusetts constitution of 1780 affirmed that 
every man had the right to worship in his own way, that all churches 
were equal before the law, and tax monies could be used to pay miius- 
ters of churches genercilly. However, attendance in some Christian 
church was still required, and people were still taxed to pay ministers. 
New Hampshire made much the same provisions as Massachusetts, 
but Connecticut clung to as much as the leaders dared of the estab- 
lished church. They did allow a dissenter from it to avoid payment of 
taxes if he could present a certificate from an officer of the church 
showing that he attended. But the days of formally established 
churches were ending in New England, too, though disestablishment 
in the last of these states was not completed until the 1830s. 

The constitutions of New Jersey, Georgia, North and South Caro- 
lina, Delaware, and Pennsylvania provided that none should be com- 
pelled to pay taxes to churches nor attend any service except such as 
they chose. Virginia, however, made the most thoroughgoing effort 
to establish freedom of conscience. This might have been a reaction to 
the fact that Virginia had the oldest estabUshed church in English 
America and the most rigorously estabUshed. Thomas Jefferson, James 
Madison, and George Mason were leading advocates of reUgious Ub- 
erty, but they did not succeed in getting their ideas into law until 1786^ 
This was done by the Virginia Statute of ReUgious Freedom, which 
proclaimed reUgious liberty a nahiral right. The legaUy effective por- 
tion of the statute reads this way: 



90 / Clarence B. Carson 

That no man shall be compelled to frequent or support any 
religious worship, place, or ministry whatsoever, nor shall be 
enforced, restrained, molested, or burdened 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 opinion in matters of religion, 
and that the same shall in no wise diminish, enlarge, or affect 
their civil capacities. ^^ 

In large, this was what Americans were coming to think of as religious 
liberty. 

llie Constitution of the United States left to the states the power 
to determine as they would whether they would have an established 
church or to what extent religious liberty would prevail. The first 
Amendment simply prohibited Congress to establish a religion or in- 
terfere with its free exercise. The states did, however, move to dises- 
tablish churches and to reduce religious restrictions, as already noted, 
thus freeing people in the matter of conscience. 

Many of the provisions in the state bills of rights, as well as the 
Bill of Rights for the United States, were guarantees of legal practices 
protecting the freedom of the individual that were a part of the British 
tradition. The Virginia Bill of Rights, adopted June 12, 1776, was both 
a model for such documents and illustrates the point. It guaranteed 
trial by jury in both criminal and civil cases, prohibited excessive bail 
and fines, declared general warrants to be oppressive, and acknowl- 
edged freedom of the press. The protections of persons accused of a 
crime were stated in detail: 

That in all capital or criminal prosecutions a man hath a right 
to demand the cause and nature of his accusation, to be con- 
fronted with the accusers and witnesses, to call for evidence 
in his favour, and to a speedy trial by an impartial jury of his 
vicinage [the vicinity of where he lives], without whose unani- 
mous consent he cannot be found guilty, nor can he be com- 
pelled to give evidence against himself; that no man may be 
deprived of his liberty, except by the law of the land or the 
judgment of his peers.^^ 

In addition to these protections, the Mcissachusetts Declaration of 
Rights of 1780 provided for the right to bear arms, the right of peaceful 
assembly, the prohibition of ex post facto laws and bills of attainder. 



The Fruits of Independence / 91 

among others. Most of the above provisions are also in the United 
States Constitution. 

Property Rights 

There were some major changes from British practice, however, 
particularly in the matter of ownership of real property. Several feudal 
restraints on property were removed. Primogeniture— the legal provi- 
sion requirement that if the owner died without a will the bulk of the 
estate went to the eldest son — was abolished generally. The most gen- 
eral encumbrance on property was the quitrent, an annual payment 
due to king or proprietors on land. Such claims as still existed at the 
time of independence were speedily extinguished, and land thereafter 
was generally owned in "fee simple." Entail— legal provisions that 
estates could not be broken up — , where it existed, was abolished. 
Such royal prerogatives as the right of the monarch to white pines (for 
shipbuilding) on private land were, of course, nullified. 

A part of the freeing of the individual, then, was making real 
property ownership free of government restraints and disposable at 
will by the individual. Indeed, property in general was carefully pro- 
tected both in state constitutions and in the U. S. Constitution. Some 
later commentators have claimed that the Founders distinguished be- 
tween what they call "human rights" and property rights and attached 
greater significance to the former. The evidence for that does not ap)- 
pear in the documents or pronouncements of the time. If anything, 
they placed more emphasis on property than on other rights of hu- 
mans, but they certainly did not declare one variety higher than the 
other. 

For example, the Massachusetts Declaration of Rights states: 

All men are bom free and equal, and have certain natural, 
essential, and unalienable rights; among which may be reck- 
oned the right of enjoying and defending their lives and liber- 
ties; that of acquiring, possessing, and protecting property; in 
fine, that of seeking and obtaining their safety and happi- 
ness.^* 

The Declaration went on to provide that "No part of the property of 
any individual can, with justice, be taken from him, or applied to 
pubhc uses, without his consent, or that of the representative body of 
the people. . . ."^^ With even greater clarity, the Virginia BiU of Rights 



92 / Clarence B. Carson 

says that people "cannot be taxed or deprived of their property for 
public uses, without their own consent or that of their representatives 
so elected. "^^ 

Slavery 

In any case, the tendency of the declarations and constitutions of 
these years was the freeing of individuals from governmental control 
of their affairs and protecting them in their rights. It has rightly been 
pointed out, of course, that where Negro slavery continued to exist it 
was a glaring exception to this tendency. Some have even gone so far 
as to accuse the Founders of hypocrisy in professing to believe in the 
equal rights of all men and acquiescing in the continuation of slavery. 
It strikes us as strange that Thomas Jefferson, who penned the stirring 
statement "that aU men are created equal," should have been himself 
a slaveholder. But even in the case of chattel slavery the trend of the 
1780s was toward the freeing of the individual, and if the trend and 
sentiment in the direction of ending slavery had continued apace the 
apparent contradiction would have been resolved. 

Some states began to act with the purpose of eventuaUy ending 
slavery almost as soon as independence from Britain was declared. In 
1776, Delaware prohibited the importation of slaves and removed aU 
restraints on their manumission (freeing by the owner). Virginia 
stopped slave imports in 1778; Maryland adopted a similar measure 
in 1783. Both states permitted manumission. In 1780, Pennsylvania not 
only prohibited further importation of slaves but also provided that 
after that date all children bom of slaves should be free. Similar enact- 
ments were made in the early 1780s in New Hampshire, Connecticut, 
and Rhode Island. In Massachusetts, the supreme court ruled that on 
the basis of that state's constitution of 1780 slavery was abolished 
there. Even North Carolina (the greatest resistance to freeing slaves 
was in the lower South) moved to discourage the slave trade in 1786 
by taxing heavily such slaves as were imported after that time. In 
order to protect free Negroes, Virginia made it a crime punishable by 
death for anyone found guilty of selling a freed Negro into slavery. 
As already noted, the Northwest Ordinance of 1787 prohibited slavery 
in the Northwest territory. 

Jefferson had written a warning about the continuation of slavery, 
which he abhorred, in his Notes on Virginia. It was a violation of their 
most basic rights to keep some people in perpetual bondage. "And can 
the liberties of a nation be thought secure when we have removed 
their only firm basis, a conviction in the minds of the people that these 



The Fruits of Independence / 93 

liberties are the gift of God? That they are not to be violated but with 
his wrath? Indeed I tremble for my country/' he said, ''when I reflect 
that God is just: that his justice cannot sleep forever "^^ 

Madison, writing in defense of the Constitution, said that it would 
no doubt have been better if the slave trade had been prohibited by 
the Constitution rather than delaying action until 1808, but he looked 
forward to the time when "a traffic which has so loudly upbraided the 
barbarism of modem policy . . . may terminate forever. . . ."^^ 

There is no reason to doubt the sincerity of many of the Foimders 
in wishing an end both to slavery and the slave trade. Moreover, at 
the earliest date that it could constitutionally Congress prohibited the 
importation of slaves. Although slaveholders in the lower South were 
still tenaciously attached to slavery, they were holding out against a 
tide running in the opposite direction in the 1780s. Even in the lower 
South, the crops which were so dependent on slave labor — rice and 
indigo — declined in importance once the break from England was 
made. Unfortunately, for the abolition of slavery, the cotton gin was 
invented in the 1790s; cotton became an important fiber; and slavery 
was revived by the expansion into the Old Southwest. 

Free Trade 

One of the fruits of independence was the freeing of trade both 
within the United States and with other peoples around the world. 
Independence from Britciin removed British imposed mercantile re- 
strictions in one swoop. That is not to say that Britain did not continue 
in various ways to limit American trade after the break. They did, 
well into the 1790s, at least. But British mercantilism was no longer 
legally binding on Americans; they could trade with whomever they 
could and would around the world. Initially, too, the states adopted 
various restrictions which limited trade within the United States. But 
the Constitution of 1787 put an end to that. 

American belief and sentiments were tending more and more to 
favor free trade. The freedom of people to trade with whomever they 
would on mutuaUy agreeable terms seemed to them to be of a piece 
with freedom for the individual in general. Benjamin Franklin said 
that "it seems contrary to the nature of Commerce, for Govenmient 
to interfere in the Prices of Commodities. Trade is a voluntary Thmg 
between Buyer and SeUer, in every article of which each exercises his 
own Judgment, and is to please himself.''^^ Pelatiah Webster, an 
American economic thinker of this period, declared: I propose ^^ to 
take off every restraint and limitation from our commerce. Let traae 



94 / Clarence B. Carson 

be as free as air. Let every man make the most of his goods in his own 
way and then he will be satisfied/'^^ Jefferson said that "the exercise 
of a free trade with all parts of the world" was "possessed by the 
American as of natural right — "^^ 

Actually, the freedom to trade is a corollary of private property. 
The right to dispose of property on whatever terms he will to whom- 
ever he will is necessarily a part of the full ownership of property. At 
its fully extended development, it involves for the seller the right to 
find anywhere in the world that buyer who will make the best offer 
for his goods, his time, or his services. For the buyer of these, it in- 
volves his right to locate the most attractive goods at prices he is 
willing to pay. 

Aside from the break from England, the greatest stride by Ameri- 
cans toward free trade was the ratification of the Constitution. The 
Constitution provided for a common market throughout the United 
States. The power to regulate commerce among the states was vested 
in the United States. Hiereafter, the states could not obstruct com- 
merce, and the whole country became in effect, a free trading area. 
Further, the Constitution provided that states may not tax in\ports or 
exports, except for carrying out inspection laws, without the consent 
of Congress. But to discourage any of that, all money collected had to 
be paid into the U.S. Treasury. 

A Common Currency 

The Constitution contains several other provisions promoting a 
common market throughout the country. Congress is empowered to 
pass uniform bankruptcy laws, set up standard weights and measures, 
and establish post offices and post roads. A common currency (or 
money) is also important for trade to take place easily. So far as the 
Constitution provides for a common currency, however, it does so by 
indirection. It authorizes the government to coin money and to regu- 
late its value. It does not authorize the passing of any tender laws 
(laws making any currency or money legal tender or forcing its accep- 
tance), and it prohibits states to make anything legcd tender except 
gold and silver coins. 

Paper money had a well deserved bad reputation at the time of 
the making of the Constitution. Not only did Americans generally 
have the recent unsettling experience with the Continental currency, 
which became worthless, but also several states had in the 1780s 
flooded the market with virtually worthless paper money. When the 
states, most notably Rhode Island, adopted laws to force the paper 



I 



The Fruits of Independence / 95 

money into circulation, it not only obstructed trade but also endan- 
gered property in debts. The subject of paper money came up twice 
for extended discussion in the Constitutional Convention. It arose 
once over a proposal to authorize Congress to emit bills of credit (issue 
paper money). The delegates were overwhelmingly opposed to the 
proposal The tenor of the opposition may be gathered from these 
delegate comments. Oliver Elsworth of Connecticut declared that he 
"thought this a favorable moment to shut and bar the door against 

paper money The power may do harm, never good."22 George 

Read of Delaware "thought the words [emit bills of credit], if not 
struck out, would be as alarming as the mark of the Beast in Revela- 
tions." John Langdon of New Hampshire "had rather reject the whole 
plan [the Constitution] than retain the . . . words. "^3 Voting by states, 
the delegates omitted the power by a vote of 9 to 2. 

Paper money camie up again in connection with a proposal to 
permit the states to emit bills of credit with the consent of Congress. 
That, too, was overwhelmingly rejected. The states are prohibited to 
issue paper money. Thus, the only provision for a common currency 
is in the power of the United States to coin money and the reserved 
power of the states to make those of gold and silver legal tender. 

While the Constitution does not specifically provide for free trade 
with the rest of the world, its provisions lean in that direction. It does 
provide that "No Tax or IXity shall be laid on Articles exported from 
any State." Thus, tariffs on exports are prohibited. Congress is author- 
ized to levy tariffs on imports. In any case, the widespread sentiment 
in favor of freeing trade set the stage for low tariffs in the early decades 
of the Republic, and many Americans had come to dislike British 
mercantilistic restraints too much to wish to impose them on their own 
trade. 

The Voluntary Way 

The story of America after 1789, until well into the twentieth cen- 
hiry, is not so much the story of the doings of government as of people 
generally. It is the story of freed individuals working, building, grow- 
ing crops, buUding factories, clearing the land for farms, organizing 
churches, providing for famiUes, and doing all those things that make 
up the warp and woof of life. They did this singly as individuals, as 
families, and in voluntary groups. This is always to some degree true, 
of course. The world's work is done by people generally and very Uttle 
by governments. But governments often play a dominant role m the 
economic, social, reUgious, educational, recreational, and commumty 



96 / Clarence B. Carson 

lives of a people. This had been so in the European countries from 
which American settlers came. It has become the rule once again in 
most places in the world in the twentieth century. 

The constitution-making cleared the ground for the triumph of the 
voluntary way in America in the late eighteenth century. Governments 
were restrained and individuals were freed to pursue their own de- 
vices alone or in voluntary cooperation with others. There is no need 
to exaggerate the extent of this change, however. The British colonists 
generally enjoyed considerable liberty, as a result of British tradition 
and law, of British neglect, and of the remoteness of many people from 
the oversight of government. The Americans continued much of what 
they considered to be the best of their British heritage under their new 
constitutions. Nor was everyone freed nor to the same degree under 
them. Slaves were still in bondage where slavery was continued and 
could hardly participate in the voluntary way. Children were, as they 
usually are, under the authority of their parents or other adults. 
Women generally were still under the protection and in some respects 
the authority of men — fathers, older brothers, and husbands — , part- 
ners, as adults, ordinarily to men, though in some ways subordinate 
ones. But these last were family matters, not things under the direction 
of government. 

In large, then, the voluntary way triumphed. Governments still 
issued charters for some undertakings, but these more often confirmed 
some voluntary undertaking than initiating it. Even the registry of 
births and deaths was much more apt to be done in the family Bible 
than in some government office. As churches were disestablished, 
religion became a voluntary affair. Attendance, participation, the pay- 
ment of the clergy, what structures would be built, what services 
would be held, were matters left to individual and family choice and 
voluntary cooperation. Education had never been firmly established 
by government in America. There had been some faltering attempts 
to do so in New England and New York, but not much came of them. 
The education of children was largely left to parents, and schools and 
colleges were set up, when they were, by churches or other voluntary 
associations or simply by some schoolmaster. So it was, too, in the 
matter of providing for those in temporary or some longer term need. 
Most often, extended families provided for orphans, for widows, for 
the sick, and for the disabled. Institutional charity, such as it was, was 
most apt to be provided by churches or private gifts. 

Under mercantilism, governments had attempted to direct eco- 
nomic activity for their own ends. The British had not only restricted 
and controlled economic activity but also granted monopolies to char- 



The Fruits of Independence / 97 

tered companies to engage in specified production or trade. American 
colonies had sometimes imitated some of these mercantilistic practices. 
There were still residues of mercantilism at the time of the founding 
of the United States, but in general Americans preferred voluntary 
economic activity to that which was government directed. Mostly men 
started and operated businesses without asking the leave or aid or 
charters from government. They built ships and plied the seas in trade 
as they could and would. In short, they tended to follow the voluntary 
in their economic life. 

How America flourished and grew by voluntary cooperation is a 
story to be told in detail elsewhere. Suffice it to say here that numerous 
voluntary societies came into being, that religious denominations mul- 
tiplied and congregations were organized in virtually every commu- 
nity, that schools and colleges became commonplace, and that there 
were no more enterprising people in the world than were Americans 
in the nineteenth century. 

1. John Dickinson, Letters from a Farmer in Pennsylvania in Empire and Interest, Forrest 
McDonald, inlro. Englewood Cliffs, N.J.: PrenHce-Hall, 1962), p. 73. 

2. Edward Dumbauld, ed., The Political Writings of Thomas lefferson (New York: 
UoeraX Arts Press, 1955), p. 138. 

3. Lester J. Cappon, ed.. The Adams-Iefferson Letters, vol. I (Chapel Hill: University 
of North Carolina Press, 1959), p. 5. 

4. Jack P. Greene, ed.. Colonies to Nation (New York: McGraw-Hill, 1967), p. 562. 

5. James Madison, Notes in the Debates in the Federal Constitutional Convention of 
1787, Adrienne Koch, intro. (Athens, Ohio: Ohio University Press, 1966), p. 398. 

6. Ibid., p. 48. 

7. Ibid., p. 53. 

8. Ibid., p. 76. 

9. Alexander Hamilton, et. al, The Federalist Papers (New Rochelle, N.Y.: Arlington 

House, n.d.), p. 292. 

10. Alfred Young, ed.. The Debate over the Constitution (Chicago: Rand McNally, 

1965), p. 49. 

11. Quoted in Moses C. Tyler, Patrick Henry (Boston: Houghton Mifflin, 1887), p. 

290. 

12. Green, op cit., p. 391. 

13. Henry S. Commager, ed.. Documents of American History, vol I (New York: 
Appleton-Century-Crofts, 1%2, 7th ed., 1962), p. 104. 

14. Ibid., p. 107. 

15. Ibid., p. 108. 

16. Ibid., p. 104. 

17. Greene, op cit., p. 391. 

18. Hamilton, op cit., p. 19. . , y, ^^. 

19. Quoted in Virgle G. Wilhite, Founders of American Economic Thought (New York. 

Bookman, 1958), p. 308. 

20. Ibid., p. 172. 



98 / Clarence B. Carson 

21. Dumbauld, op. cit, p. 19. 

22. Charles C. Tansill, ed.. Formation of the Union of American States (Washington: 
Govemment Printing Office, 1927), p. 557. 

23. md. 



Ill, IN DEFENSE OF LIBERTY 



I 



Against All Enemies 
by Robert Bearce 



Parti 

The elected and appointed officials of our federal government take 
an oath of office before undertaking their constitutional duties. Let's 
take a look at that oath, expressed as a question and answered bv "I 
do." ^ 

Do you solemnly swear that you will support and defend the Constitu- 
tion of the United States against all enemies, foreign and domestic; that you 
will bear true faith and allegiance to the same; that you take this obligation 
freely, without any mental reservation or purpose of evasion; and that you 
will xvell and faithfully discharge the duties of the office on which you are 
about to enter: So help you God? 

In response to their oath of office, our Congressmen and Senators 
answer "I do," but do they really mean it? 

Unfortunately for the cause of freedom, the oath of office has often 
become only a hollow formality. Too many members of the adminis- 
trative, legislative, and judicial branches of the federal government 
have failed to "support and defend the Constitution of the United 
States" and "bear true faith and allegiance to the same." 

The Constitution has been misinterpreted, abused, and subverted. 
As it continues to be violated, we should see how freedom is gradually 
being destroyed. 

The word "destroyed" might appear to be somewhat harsh, but it 
is appropriate. We ought to heed a warning made by Patrick Henry 
in 1775, not long before the opening shots of the War for Independence 
were fired at Lexington and Concord. Henry clearly understood how 
freedom was being threatened by oppressive government rule. He 
warned against indifference, complacency, and apathy. 

"It is natural to man to indulge in the illusions of hope. We are 
apt to shut our eyes against a painful truth, and listen to the song of 
that siren, till she transforms us into beasts. Is this the part of wise 
men, engaged in a great and arduous struggle for liberty? Are we 
disposed to be of the number of those who, having eyes, see not, and 



This article was originally published as a three-part series in the September, Octo- 
ber, and November 1980 issues of The Freeman. 



101 



102 / Robert Bearce 

having ears, hear not, the things which so nearly concern their tempo- 
ral salvation? For my part, whatever anguish of spirit it may cost, I 
am willing to know the whole truth; to know the worst and provide 
for it." 

By "temporal salvation," Patrick Henry meant the preservation of 
freedom — the freedom to work and provide for our personal lives as 
we best see fit. Henry and other patriots believed that freedom meant 
individuals had the ability and responsibility to plan their own lives 
without unnecessary government intervention. That freedom was be- 
ing threatened, and Henry was telling the colonists to wake up and 
confront the danger before them. His admonition applies to us today. 

If we truly want to strengthen freedom and regain what we have 
already lost, we will pledge ourselves to defending the Constitution. 
We cannot support our Constitution, however, unless we face the fact 
that it is being continually ignored and betrayed. It is time that we 
give some serious thought to the Constitution. 

Protection from Enemies — Foreign and Domestic 

The Founding Fathers who framed our Constitution in 1787 knew 
that individuals have certain unalienable rights — "life, liberty, and the 
pursuit of happiness," as earlier expressed in the Declaration of Inde- 
pendence. These rights were God-given rights. No government or 
constitution gave them to the individual. Rather, the purpose of gov- 
ernments and constitutions was to protect these basic, God-given 
rights. 

The Founding Fathers comprehended how and why people be- 
have the way they do. Men like James Madison and Alexander Hamil- 
ton understood human nature. They saw that some human beings 
would always resort to force, deceit, war, stealing, and killing to get 
what they wanted. Thus, there was an obvious need for government — 
legitimate, just government to carry out two main functions: 

1. protecting free people from foreign enemies and invaders; 

2. protecting honest, self-responsible, hard working citizens within 
the nation from domestic lawbreakers who would use coercion, fraud, 
or force to deprive others of "life, liberty, and the pursuit of happi- 
ness." 

Good government would do the above, and the Founding Fathers 
outlined that kind of government in our Constitution. Just as they 
gave the government certain authority, they also placed limitations 
on government power. The framers of the Constitution recdized that 
while government was needed to protect individual freedom, govern- 



Against All Enemies / 103 

ment itself had to be placed within limited, strictly defined boundaries. 
If government was not restrained, it would destroy individual Uberty 
and lead to tyranny. Government had to be controlled. James Madison 
explained the matter: 

It may be a reflection on human nature that such devices 
should be necessary to control the abuses of government. But 
what is government itself but the greatest of all reflections on 
human nature? If men were angels, no government would be 
necessary. If angels were to govern men, neither external nor 
internal controls on government would be necessary. In fram- 
ing a government which is to be administered by men over 
men, the great difficulty lies in this: you must first enable the 
government to control the governed, and in the next place 
oblige it to control itself. 

When Madison wrote that government should ''control the gov- 
erned," he was thinking about necessary government laws required 
to maintain imparticd law and order — law and order that protected 
individual liberty. This issue of defending individual rights and limit- 
ing the power of government is the central theme of the Constitution. 

Preserving Personal Liberty 

Four aspects of the Constitution show the Founding Fathers' con- 
cern for preserving personal liberty within the boundaries of limited 
government. 

First, we have a written constitution. Having the powers of govern- 
ment and the rights of the citizenry spelled out in print is no assurance 
that freedom will be observed, but a written constitution does act as a 
safeguard to liberty. When the Constitution is snubbed or disregarded, 
we can at least hold up a warning hand and say something to the 
effect: "Stop, government bureaucrats! The law you have just passed 
is unconstitutional. The Fifth Amendment says. . . ." 

Second, our Constitution provides for a republic. That is, we have 
a republican form of government based upon the citizenry electing 
representatives to carry out the functions of government. The Found- 
ing Fathers did not frame a constihition that would set up a democ- 
racy—a kind of government where political power lay directiy in the 
hands of the people. Under a pure democracy, the citizens of the state 
would exercise popular vote to decide what laws should be made. Tlie 
majority view would be registered and then carried out by the admm- 



104 / Robert Bearce 

istrative hand of the central government. There would be no represen- 
tation (legislative branc±i of government) between the citizenry and 
the administrative branch of government. 

A democracy might appear to be more "democratic" than a repub- 
lic, but the authors of the Constitution knew that a democracy would 
lead to a loss of individual freedom followed by anarchy or tyranny. 
While the Constitution was being considered for ratification by the 
Massachusetts Convention, Moses Ames observed: "It has been said 
that a pure democracy is the best government for a small people who 

assemble in person It may be of some use in this argument ... to 

consider, that it would be very burdensome, subject to faction and 
violence; decisions would often be made by surprise, in the precipi- 
tancy of passion, by men who either understand nothing or care noth- 
ing about the subject; or by interested men, or those who vote for their 
own indemnity. It would be a government not by laws, but by men." 

The Dangers of Democracy 

Seeing the dangers of a democracy, the Founding Fathers adopted 
a republican form of government. It is true that the history of our 
nation shows that a republic can suffer the very weaknesses of a de- 
mocracy that Ames described, but the fact remains that a republic 
comes nearer to preserving individual rights than does a democracy. 

Madison and others rejected popular vote cis the method of mak- 
ing laws. Instead, Article I of the Constitution provides for representa- 
tion through the election of Senators and Congressmen to the Senate 
and House of Representatives. These legislators would represent us 
and make laws — laws that should protect and promote individual 
freedom. The government was to be guided by clearly defined laws, 
not by direct majority rule, which would lead to oppression. 

Although Thomas Jefferson did not participate in the work on the 
Constitution, he understood why a republic was superior to a democ- 
racy. He also knew what the basic purpose of a republic was: "The 
true foundation of republican government is the equal right of every 
citizen, in his person and property, and in their management." 

A republic meant a government that allowed the people of the 
United States to work freely, associate freely, and otherwise plan their 
own lives in the way they pleased — equal rights shared by all citizens. 
Speaking of the national or central government of the United States, 
Article IV, Section 4 of the Constitution says: "The United States shall 
guarantee to every State in this Union a Republican Form of Government, 
and shall protect each of them against Invasion (emphasis added). 



Against All Enemies / 105 

A third principle of our Constitution that defends individual Ub- 
erty is federalism. When we speak today about the ''federal govern- 
ment/' we refer to the executive, legislative, and judicial branches of 
the central government located in Washington, D.C. In the minds of 
the Founding Fathers, though, federal government was an all-encom- 
passing term used to describe a nation made up of sovereign states a 

nation composed of a central or national government (the folks in 
Washington, D.C.) and state governments (Delaware, South Carolina, 
Connecticut, etc.). 

Notice that the Constitution recognizes that the United States are, 
not "is," a union of sovereign states. Article III, Section 3 reads: "Trea- 
son against the United States, shall consist only in levying War against 
them, or in adhering to their Enemies. . ."(emphasis added). Although 
the Founding Fathers considered themselves as Americans and citi- 
zens of a unified nation, they also considered themselves citizens of 
separate, self-governing states. The United States were considered in 
the plural, not the singular. Thus, treason against the United States 
was against them, not it. This fact stresses the federalist nature of the 
government established by the Constitution. 

The Separation of Powers to Protect the Citizenry 

The Constitution provides for federalism that grants some powers 
to the national government and other powers to the states. This federal 
separation of powers acts as a safeguard to personal freedom. Federal- 
ism places the burden of law-making and political decisions upon 
power units close to the supervision of the citizenry. The Founding 
Fathers did not want the national government in Washington, D.C, 
telling the people of Virginia or North Carolina what to do. 

Thus, political power was distaributed among the different state, 
county, and local governments, enabling the people to govern them- 
selves. This widespread distribution of authority makes it more diffi- 
cult for one power unit to infringe upon the constitutional rights of the 

citizens. 

The Founding Fathers provided for another form of separation of 
powers. This is the fourtii aspect of the Constitution's defense of mdi- 
vidual Uberty. The national government, or, as we say, the federal 
government, was spUt up into three separate branches with each 
branch having distinct, limited powers. 

Basically, the executive branch of government headed by the Presi- 
dent and his Cabinet carries out constitutional laws and duties ine 
legislative branch made up of the Senate and House of Representatives 



106 / Robert Bearce 

makes the laws, while the judicial branc±i (the Supreme Court and 
federal courts) decides whether or not laws have been violated in light 
of the Constitution. 

Three Branches of Government 

The authority and powers of the three branches of the federal 
government are balanced and checked by one another. For example, 
the President can veto laws passed by Congress. Congress, on the 
other hand, can withhold funds from executive agencies. Although 
Congress can pass legislation, the Supreme Court has the power to 
declare certain laws unconstitutional, making them null and void. The 
President appoints federal judges and various civil servants, but the 
Senate can refuse to ratify major appointments. The federal judiciary 
can find individuals guilty of crimes, but the President has power to 
grant pardons and reprieves. 

This separation of powers, like federalism, should act as a checks 
and balances system to keep government from going beyond the 
boundaries of its constitutional authority. No single branch of govern- 
ment should have the combined power to make, interpret, and enforce 
laws. 

The United States Constitution is really a remarkable document. 
It is a monument to personal freedom. The Founding Fathers dis- 
trusted government, and they attempted to shackle political power 
when they adopted the Constitution. It restricts government to the 
primary responsibilities of providing for the common defense, main- 
taining doniestic security and peace, and protecting individual rights. 

The Bill of Rights 

When we think of individual rights, we usually have in mind the 
first ten amendments to the Constitution, the Bill of Rights. Much has 
been written about the first eight amendments which include assur- 
ances of freedom of religion, speech, and press . . . the right to bear 
arms ... the right to trial by jury, etc. Not enough is said, though, 
about the Ninth and Tenth Amendments. 

The Ninth Amendment states that "The enumeration in the Con- 
stitution of certain rights, shall not be construed to deny or disparage 
others retained by the people." 

This amendment assures the individual that he has other rights 
besides those listed in the Constitution and previous eight amend- 
ments. These unnamed rights cannot be taken away just because they 



Against All Enemies / 107 

are not mentioned in the Constitution. We have such rights as "the 
pursuit of happiness/' not included in the Constitution but stated 
earlier in the Declaration of Independence. 

Now look at the Tenth Amendment: "The powers not delegated 
to the United States by the Constitution, nor prohibited by it to the 
States, are reserved to the States respectively, or to the people." 

This important amendment says that all powers not granted by 
the Constitution to the national government are retained either by the 
states or individual citizens. Likewise, all powers not prohibited by the 
Constitution to the states are left in the hands of the states or people 
themselves. 

Unfortunately, many of our government officials today act as if 
the Ninth and Tenth Amendments do not exist. They have twisted the 
meaning of the Constitution and the role of government. They look 
upon the Bill of Rights as rights granted to us by a supposedly benevo- 
lent government. In reality, the first ten amendments are a list of 
prohibitions against government interfering with those rights. Our leg- 
islators should listen to Daniel Webster. 

Webster was only a youngster when the Constitution was ratified 
in 1788, but in later years he earned the reputation of being "The 
Defender of the Constitution." EHiring a Senate speech in 1830, he 
declared: "The people, then. Sir, erected this government. They gave 
it a Constitution, and in that Constitution they have enumerated the 
powers which they bestow on it. They have made it a limited govern- 
ment. They have defined its authority. They have restrained it to the 
exercise of such powers as are granted; and all others, they declare, 
are reserved to the states or the people." 

A Framework for Freedom 

The Founding Fathers knew tiiat the basic responsibility of gov- 
ernment was to serve as a "watchdog'' to maintain a free society of 
free individuals working together freely. Improved working condi- 
tions . . . better education . . . good health care . . . material progress— 
all of these are goals thai people work toward. The purpose of govern- 
ment is to ensure tiie necessary freedom that will permit individuals 
to work for ti\ose goals through self-responsibility, individual initia- 
tive, the free market, and voluntary exchange. Government has the 
responsibiUty of providing a framework that will allow individuals to 
achieve prosperity and dignity on their own. 

The Founding Fatiiers were not men who felt that the purpose of 
government was to plan, formulate, and then implement specific ways 



108 / Robert Bearce 

to achieve the goals of a nation. Govemn\ent was not to be in the 
business of providing public housing or job training through its politi- 
cal, economic, or social legislation. Government was not to mold soci- 
ety but, instead, allow society to mold itself freely. 

Let's consider some advice from Jefferson: "... 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 " 

We need to see how far we have strayed away from the Constitu- 
tion. Not only is government poking its bureaucratic nose into where 
it should not be, it is not fulfilling one of its primary constitutional 
responsibilities — deterring crime. Government is supposed to prevent, 
prosecute, and puiush crime, but now government itself has become 
the lawbreaker of the Constitution. 

The Enemy Within 

Many of our public officials have broken their oath of office. They 
affirm or swear that they will support the Constitution and defend it 
"against all enenues, foreign and domestic." There is the foreign threat 
of Marxist subversion and aggression. More dangerous, however, are 
the domestic enemies — individuals whose actions and attitudes are 
corrupting the Constitution. Those individuals include some of the 
very government officials sworn to uphold the Constitution. 

Actions by the executive, legislative, and judicial branches of the 
federal government have proven that many officeholders apparently 
do not understand the Constitution. If they do know what the Consti- 
tution stands for, then we should hold them responsible for willfully 
repudiating their oath of office. 

Two tasks are before us. First, we must have a firm appreciation 
for the Constitution. Second, we must have a clear understanding how 
and why the Constitution is being defied. Until we face the truth, we 
will slide steadily towards the eventual destruction of freedom in the 
United States. 



Part II 

John Quincy Adams, sixth President of the United States, once 
observed: "Our Constitution professedly rests upon the good sense 



Against All Enemies / 109 

and attachment of the people. This basis, weak as it may appear, has 
not yet been found to fail." 

Up until President Adams' administration and for many years 
afterwards, our Constitution did indeed work in the manner it was 
meant to work. Times have changed, though. Although the principles 
of the Constitution of the United States remain as strong as ever, we 
have seriously neglected and forsaken them. The Constitution itself is 
a rugged, foresighted document, but, as President Adams said, its 
effectiveness lies in how well we observe its provisions. 

Tragically, too many Americai\s today have abandoned the faith 
of the Founding Fathers. Our Constitution has'^ been trampled upon 
by government officials, members of the mass media, educators, other 
public-opinion molders, as well as the average citizen. 

Consider for a moment how some Americans (particularly those 
serving in Congress) have manipulated the ''general welfare" clause 
of the Constitution. The "general welfare" is mentioned in the pream- 
ble and in Article I, Section 8. 

The preamble reads: "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." 

Article I, Section 8 of the Constitution mentions the "general wel- 
fare" in this way: "The Congress shall have the Power to lay and 
collect Taxes, Duties, Imposts and Excises, to pay the Debts and pro- 
vide for the common defense and general welfare of the United 
States. . . ." 

The preamble clearly defines the two major functions of govern- 
ment: (1) ensuring justice, personal freedom, and a free society where 
individuals are protected from domestic lawbreakers and criminals, 
(2) protecting the people of the United States from foreign aggressors. 

No Special Privileges 

When the Founding Fathers said that "WE THE PEOPLE" estab- 
lished the Constitution to "promote the general Welfare," they did not 
mean the federal government would have the power to aid education, 
build roads, and subsidize business. Likewise, Article I, Secfaon 8 did 
not give Congress the right to use tax money for whatever social and 
economic programs Congress might think would be good tor tne 
"general welfare." 



110 / Robert Bearce 

James Madison stated that the "general welfcire" clause was not a 
freeway for Congress "to exercise every power which may be alleged 
to be necessary for the common defense or general welfare." If by the 
"general welfare," the Founding Fathers had meant any and all social, 
economic, or educational programs Congress wanted to create, there 
would have been no reason to list specific powers of Congress such 
as establishing courts and maintaining the armed forces. Those powers 
would simply have been included in one all-encompassing phrase, to 
"promote liie general welfare." 

Writing about the "general welfare" clause in 1791, Thomas Jeffer- 
son saw the danger of misinterpreting the Constitution. The danger 
in the hands of Senators and Congressmen was "that of instituting a 
Congress with power to do whatever would be for the good of the 
United States; and, as they would be the sole judges of the good or 
evil, it would be also a power to do whatever evil they please." 

The Founding Fathers said in the preamble that one reason for 
establishing the Constitution was to "promote the general welfare." 
What they meant was that the Constitution and powers granted to the 
federal government were not to favor special interest groups or par- 
ticular classes of people. There were to be no privileged individuals 
or groups in society. Neither minorities nor the majority was to be 
favored. Rather, the Constitution would promote the "general wel- 
fare" by ensuring a free society where free, self-responsible individu- 
als — rich and poor, bankers and shopkeepers, employers and employ- 
ees, farmers and blacksmiths — would enjoy "life, liberty, and the pur- 
suit of happiness," rights expressed in the Declaration of Indepen- 
dence. 

Quoting the Tenth Amendment, Jefferson wrote: "I consider the 
foundation of the Constitution as laid on this ground: That 'all powers 
not delegated to the United States, by the Constitution, nor prohibited 
by it to tiie States, are reserved to the States or to the people.' To take 
a single step beyond the boundaries thus specially drawn around the 
powers of Congress is to take possession of a boundless field of power, 
no longer susceptible of any definition." 



A Monstrous Bureaucracy 

Jefferson was correct in fearing that Congress could "take posses- 
sion of a boundless field of power," but he was wrong in saying that 
such unlimited power could not be defined. It can indeed be defined 



Against All Enemies / 111 

by simply looking at the federal government of the United States 
today. There we see a '^boundless field of power'' in both little and big 
matters. 

Unlike public officials during Jefferson's time, our modem-day 
legislators have a very loose interpretation of the Constitution. The 
result is that government has snowballed into a monstrous bureau- 
cracy. Consider the power given to Congress by the Constitution in 
Article I, Section 8, clause 8: 'To promote the Progress of Science and 
useful Arts " 

Does that mean Congress has the right to use our tax dollars to 
finance agencies like the National Science Foundation and the Na- 
tional Foundation on the Arts and Humanities? 

Definitely not! The complete clause reads: "To promote the Pro- 
gress of Science and useful arts, by securing for limited Times to Authors 
and inxmitors the exclusive Right to their respective Writings and Discover- 
ies" (emphasis added). 

That's what the Founding Fathers meant by encouraging science 
and the arts. An appropriate Copyright Office was set up. Article I, 
Section 8, clause 8 is just one example of how the Constitution protects 
individual freedom and aissures the individual the right to enjoy the 
fruits of his own labor, energy, and abilities. 

Our present-day legislators, however, have ignored the Constitu- 
tion as they pass legislation to help science and the arts. We now have 
the federaUy funded National Science Foundation, National Endow- 
ment for the Arts, and National Endowment for the Humanities. How 
do these federal programs spend our tax monies? Well, it has been 
reported that $130,000 from the National Science Foundation was used 
to study the evolution of the cricket. Another $46,000 was evidently 
spent by the National Endowment for the Arts to finance a film docu- 
mentary on the history of the toilet. On the other hand, we are in- 
formed that for only $2,500 the National Endowment for the Humani- 
ties was able to finance a study on why tennis players are rude on 
termis courts. A reed bargain! 

Undoubtedly, federal programs like the National Science Founda- 
tion have had some wortiiy results, but the benefits received are not 
ti\e issue for discussion or debate. The problem is that such federal 
programs are unconstitutional. Rather than depending upon free mdi- 
viduals to encourage science and the arts through voluntary contnbu- 
tions to private foundations. Congress is taking money from some 
citizens and giving it to whomever it judges to be needy of federal 
handouts. 



112 / Robert Bearce 

Congress Assumes Powers Beyond Intent of Founders 

Congress is continually usurping its constitutional power, spend- 
ing more of our tax dollars, and otherwise assuming obligations the 
Founding Fathers never meant it to undertake. For example, our gen- 
erous government offers us such helpful publications as And Now a 
Word About Your Shampoo, Keeping Your Pet Healthy, and Imaginative 
Ways With Bathrooms. TThe really nice thing about these publications is 
that they are "free." 

Now, it might be heartening to some people to know that our 
government wishes to advise us on how to plan or remodel our bath- 
rooms, but are we to believe that federal funding for such publications 
is provided for in the Constitution? 

The Constitution is being twisted and manhandled as our legisla- 
tors toil in Congress to do what we can and should do for ourselves. 
One prominent Senator proudly lists in his legislative newsletter laws 
and proposals he has worked for in our behalf. These include a Na- 
tional Technology Act . . . federal subsidies for mass transit ... a child 
abuse act . . . aid for bilingual education ... a legal Services Corpora- 
tion ... an Arthritis Act ... a Drug Utilization Improvement Act . . . 
subsidies for solar energy . . . monies for public service jobs, and so 
forth and so on. 

The Senator's constituency, as well as all American citizens, 
should recall Jefferson's advice: "... Still one thing more, fellow citi- 
zens — 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." 

Yet, our federal government today rumbles on, disavowing the 
Constitution and taking from our "mouth of labor the bread it has 
earned" through taxation. Government grows bigger and more com- 
prehensive as federal funds are spent for cooperative farm extension 
work . . . urban mass transit . . . child-nutrition programs . . . public 
housing . . . elementary and secondary education ... air and water 
pollution control . . . rural-housing grants . . . minority business devel- 
opment . . . public broadcasting . . . adolescent health services and 
pregnancy prevention . . . boating safety assistance . . . new-community 
assistance grants . . . urban renewal, and so forth and so on. 



Against All Enemies / 113 
A Free Economy 

America's past progress in achieving material prosperity in a cli- 
mate of freedom and human dignity did not come as a result of gov- 
ernment intervention into social /economic matters. Our nation has 
prospered because we were true to the Constitution. The Founding 
Fathers believed that the role of government was to provide a political 
framework that would permit individuals to work together in volun- 
tary cooperation, pursuing their own destinies. Individual iiutiative 
and personal responsibility — not government social and economic in- 
tervention — were the basis for stability and growth. 

The critical question for us is how many of the federal govem- 
ment's dep«irtments, boards, projects, and agencies are constitutional. 
We should remember that elected and appointed public servants are 
sworn to support and defend the Constitution of the United States. 
Consider what the Constitution has to say about private property, and 
then think about how government has abused its authority. 

The Fourth Amendment states: "The right of the people to be 
secure in their persons, houses, papers, and effects, against unreason- 
able searches and seizures, shall not be violated — '' 

The Fifth Amendment assures us that we will not "be deprived of 
life, liberty, or property, without due process of law — " 

The 14th Amendment states that citizens will not be deprived of 
"life, liberty, or property, without due process of law — " 

Few government officials, if any, will deny that private property 
is a basic principle or right enjoyed by Americans. Yet, these same 
public officials support laws that have the effect of infringing upon 
our liberty and property. 

Without the right to dispose of our property as we best see fit, the 
right to private property is meaningless. Our property includes every- 
thing from our homes or the business we might own to our earnings 
at whatever job or profession we have. Our pay checks are just as 
much a matter of private property as are our homes, automobiles, and 
TV sets. Government deprives us of Hberty and property to the extent 
that it (1) tries to manage our economic lives for us; and (2) prevents 
us from reaping the rewards of hard work and enjoying the fruits of 
our own property. Through unnecessary government regulations as 
well as excessive taxation we are not in full control of our property. 



114 / Robert Bearce 

Private Property Protected 

James Madison, known as the Father of the Constitution, under- 
stood that government interference threatens freedom and private 
property: 

"That is not a just government, nor is property secure under it, 
where arbitrary restrictions, exemptions, and monopolies deny to part 
of its citizens that free use of their faculties, and free choice of their 
occupations, which not only constitute their property in the general 
sense of the word; but are the means of acquiring property so called." 

Madison, Roger Sherman, and other men who wrote our Constitu- 
tion achieved a wise, firm balance between personal liberty and gov- 
ernment power. The Constitution has proven itself to be a stable but 
flexible document. Our problem today is that we have allowed flexibil- 
ity to be interpreted as a blank check for goveininent to do whatever 
it wishes. This is seen in the misinterpretation of the "general welfare" 
clause and the so-called "elastic clause" of Article I, Section 8 which 
says Congress shall have the power: 

"To make all laws which shall be necessary and proper for carry- 
ing 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." 

Our government officials continually distort the meaning of the 
Constitution's "elastic clause." In doing so, they have stepped beyond 
the boundaries of linuted, constitutional government. If he were alive 
today, James Madison would tell us that many government laws and 
programs might be useful, but they are certainly not "necessary and 
proper" according to the Constitution. He would rennind us that no 
law is constitutional unless it is "necessary and proper" to carry out 
specifically enumerated powers given to the executive, legislative, or 
judicial branches of government by the Constitution. 

The duty of the federal judiciary — the Supreme Court and lower 
federal courts — is to determine whether laws are constitutional and 
whether they have been broken. Just as both the executive and legisla- 
tive branches of government have shown their contempt for the Con- 
stitution, so the judiciary has failed to carry out its legitimate responsi- 
bilities. Instead of rightfully interpreting the Constitution as a bulwark 
defending individual freedom against government oppression, many 
judges in our federal courts reject the Constitution and interpret it to 
agree with what they believe to be politically, economically, morally, 
or socially correct. 



Against All Enemies / 115 

Meanwhile, Congress flouts the Constihition by not only making 
laws but also interpreting them and enforcing them— responsibiUties 
of the judicial and executive arms of government. Countless agencies, 
commissions, departments, and boards set up by Congress issue bur- 
densome, unconstitutional guidelines, regulations, and laws. What 
would the Founding Fathers think of this federal bureaucracy? They 
would recall what the Declaration of Independence had to say about 
government and the King of England. "The history of the present King 
of Great Britain is a history of repeated injuries and usurpations, all 
having in direct object the establishment of an absolute Tyranny over 

these States He has erected a multitude of New Offices, and sent 

hither swarms of Officers to harass our people, and eat out their sub- 
stance." 

Freedom Threatened 

The patriots of the War for Independence fought to preserve free- 
dom against a "multitude of New Offices" and "swarms of Officers." 
Later, the people of the United States adopted a Constitution designed 
to limit government authority and protect individual liberty. That free- 
dom is threatened today, not so much from foreign aggression as from 
many of our own citizens who do not want to live by the principles 
of the Constitution. 

Senators, members of the House of Representatives, and other 
government officeholders have sworn that they will support and de- 
fend the Constitution "against all enemies, foreign and domestic." Our 
public officials have also sworn to "bear true faith and allegiance" to 
the Constitution. 

Are they living up to their oath of office? Are other citizens, "WE 
THE PEOPLE of the United States," bearing "true faith and aUegiance" 
to the Constitution? 



Part III 

Our Constitution and the principles of freedom are being steadily 
eroded today. Too many Americans evidently disagree with Thomas 
Jefferson's basic poUtical philosophy: "Every man wishes to pursue his 
occupation and to enjoy the fruits of his labors and the produce of his 
property in peace and safety and with the least possible expense. 
When these things are accomplished, all the objects for which govern- 
ment ought to be established are answered." 



116 / Robert Bearce 

According to Jefferson and other Americans who fought for free- 
dom, the purpose of government was to assure the God-given rights 
of individuals to work freely, create, build, invent, succeed, fail, and 
plan their own lives . . . without needless government interference. 
Government should intervene to prevent, prosecute, and punish 
crime. Government was also responsible for organizing the defense 
of the nation from foreign aggressors. The two major roles of govern- 
ment were designed to allow free individuals to rise to the heights of 
individual potential consistent with their own abilities, energy, will 
power, and personal accountability. 

The United States Constitution has worked very well in the past 
as a bulwark for personal liberty. Now, though, we are faced by a loss 
of individual rights and a growth of government power. Two views 
of the Constitution by two past Presidents illustrate a partial cause for 
our present difficulties. 

President William Taft wrote that: "... the President can exercise 
no power which cannot be reasonably and fairly traced to some spe- 
cific grant of power ... in the Constitution or in an act of Congress." 

Taft's strict interpretation of the Constitution contrasts with Presi- 
dent Theodore Roosevelt's liberal interpretation of the powers of the 
Presidency: "... My belief was that it was not only his (the President's) 
right but his duty to do anything that the needs of the nation de- 
manded imless such action was forbidden by the Constitution or by 
the laws." 

Over the years since President Theodore Roosevelt wrote about 
the Presidency, the "liberal" interpretation of the Constitution has 
gained an ever increasing acceptance by all three branches of the gov- 
ernment — executive, legislative, and judicial. This "liberal" concept of 
government authority tramples upon the Tenth Amendment of the 
Bill of Rights: "The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people." 

The problem is twofold: (1) "WE THE PEOPLE of the United 
States," as stated in the preamble, have deserted the Constitution. (2) 
The people's elected and appointed officials have debcised th^ Consti- 
tution. If we truly value what freedom we have left, and if we wish to 
regain what rights we have lost, we must understand the destructive 
mentality or philosophy that has gripped so many Americans. 



Against All Enemies / 117 
The Santa Claus Complex 

First, a greater number of Americans are accepting what has been 
called the "Santa Claus" complex. Some people might want to term it 
the Big Daddy or Great Uncle Sam complex. At any rate, when citizens 
look upon the federal government as Santa Claus, they will continue 
to expect supposedly "free" presents from the government. 

While large numbers of businesses, special interest groups, profes- 
sior\s, and average citizens are looking to the federal Santa Claus for 
goodies, their elected officials have an affliction called the "Robin 
Hood" complex. Actually, the Santa Claus mentality and the Robin 
Hood philosophy work together to assault the Constitution. In order 
to play Santa Claus and give to the citizenry federal subsidies, grants, 
and other aid, government officials must also assume the role of a 
benevolent Robin Hood. 

They do this with a great deal of enthusiasm and sense of morality. 
Before they can distribute gifts to different segments of the populace, 
they must first take money from other people. Thus, government plays 
Robin Hood, taking from the "rich" and giving to the "poor" — the 
"poor" classified as whomever the federal government so chooses. 

The fact is that government cannot create wealth. It cannot give 
away anything it hasn't first confiscated from the "rich" (industries, 
businessmen, hard-working individuals) or the citizenry as a whole. 
Robin Hood does this through taxation. The only other way the federal 
government can pay for its handouts is simply to create money it 
cannot or will not bring into the Treasury through taxation. When it 
creates the new money from the federal printing presses, we suffer 
inflation. 

Although the average citizen decries inflation and excessive taxa- 
tion, he continues to vote for more goverrmient interference in the 
economic and social life of the United States. Legislators are quite 
willing to play the parts of Santa Claus and Robin Hood. To do so is 
the best way to get elected and reelected. They learn by experience and 
continue to promote the idea that government is motivated by com- 
pcission and humanitarianism. 

To some extent that is true. A large number of public servants are 
probably motivated by a desire to do good. Although playing Santa 
Claus is mostly a matter of self-interest, many government officials 



118 / Robert Bearce 

honestly believe they are doing what is best for the citizenry of the 
United States after they assume public office. They believe they can 
use the authority of government to devise and then carry out plans to 
bring "social justice," good housing, health care, and the like, to the 
people. Frankly, they feel that government has a moral obligation to 
manage our lives. Their goodness in our behalf, however, profanes the 
Constitution. 

Instead of showing loyalty to the principles of the Constitution — 
limited government and personal liberty — they attempt to create the 
"good society" according to their own designs. Again, their intentions 
are good, but they still refuse to have faith in the individual. They 
really do not think individuals are capable of achieving dignity, eco- 
nomic stability, and justice on their own — within the framework pro- 
vided by the Constitution. 

Holding Officials Responsible 

Those government leaders who scorn the principles of the Consti- 
tution should be held accountable. On the other hand, the question 
should be asked as to who put such Robin Hoods in office. The Ameri- 
can people, of course, are the ones who vote for the politicians who 
head for Washington, D.C., to continue the task of planning and regu- 
lating our lives. A nation-wide survey reported that 94 percent of 
those surveyed believed that the main duty of a Congressman was 
"making sure his district gets its fair share of government money and 
projects." 

The survey shows that Americans are quite willing to accept the 
idea that their elected officials are in the business of distributing mo- 
nies from the federal Treasury. Apparently, few citizens think the 
responsibility of their Senators and Congressmen is to cut back on the 
growth of government. 

We — legislators and average citizens — need to reexamine the Con- 
stitution and realize the extent to which we have degraded it. We 
should think about a proposal made by Nobel Prize-winning econo- 
mist Milton Friedman. Considering the fact that people in government 
are trying to do good with other people's money. Dr. Friedman sug- 
gests that we need an eleventh amendment to the ten already in the 
Bill of Rights. The new amendment would ensure that every individ- 
ual would have the right to do good — with his or her own money. 

In reality, we already have the right to do good for others at our 



Against All Enemies / 119 

own expense, although it can be said that this right is being hindered 
due to oppressive taxation and government-sponsored inflation. We 
cannot very weU help other people if we do not have the money to 
do so. 

Regardless of stifling taxation, our right to help others is being 
neglected or rejected as we place charity, human concern, and humani- 
tarianism in the hands of the government. 

Parental Guidance 

For example, some Americans are concerned that advertising and 
some children's programming on TV is bad for the kiddies and the 
stability of the fanuly. Advertisers, they say, take advantage of inno- 
cent young viewers. The youngsters are brainwashed and led astray 
to clamor for toys, candy, or other items that they do not need. The 
duped children are more or less forced by the commercials to demand 
the products seen on TV. 

Thus, we have the tragic spectacle (as some Americans see it) of 
boys and girls strong-arming their helpless parents into buying the 
trivial products advertised on TV. If the parents should refuse, havoc 
arises in the family. Adults and children suffer emotional traim\a. If 
the p£U-ents agree to the children's demands, then the families waste 
money on the supposedly useless products. 

The answer for the above problems, as suggested by those who 
dislike the quality of children's programs and advertising, is either 
government regulation or "social conscience" on the part of business. 
"Social conscience" means that companies that manufacture children's 
products should sponsor their programs without showing ads for 
toys, cereals, and other products. We could then have commercial-free 
children's TV . . . which would eventually mean government subsidy 
of children's programs at taxpayers' expense. 

Now then, if you ask the proponents of government intervention 
whether or not they allow their own kids to watch what they, the 
parents, say is bad children's TV, they might very well answer with 
an emphatic "No!" That being the case, we should ask such people 
why they feel so superior to their fellow Americans. In other words, 
why is it that they presumably have enough concern for their children 
to him off the booby tube, but other parents apparently cannot make 
the same decision in behalf of their own children? 

Other questions we might ask are these: If changes reaUy need to 



120 / Robert Bearce 

be made in children's TV, why don't those who want the changes use 
their own money to establish a private foundation to bring about 
whatever improvements they feel are necessary? Why don't those con- 
cerned about little Johnny's appetite for candy laimch a nationwide 
campaign — ^paid for out of their own pockets and through voluntary 
contributions — to inform parents that they are perfectly capable of 
doing two things: (1) saying "No!" to their children, and (2) turning 
off the TV set or making certain that their children do so. 

The fact is that we will always have our goodhearted, well-inten- 
tioned crusaders who want to bring about what they believe to be a 
better society. Their moral failure lies in the fact that they basically 
have faith only in their own intentions and the power of government 
to implement those good intentions for all our good . . . regardless of 
whether we agree or not. 

Those who support more government regulations, "guidelines," 
and laws tend to believe that the ordinary citizen is not capable of 
making intelligent decisions on his own. This distrust of individual 
responsibility illustrates some of America's alienation from the Consti- 
tution. The principle of limited government authority is spumed. Indi- 
vidual freedom and the Bill of Rights are belittled. 

The Bill of Rights 

The Bill of Rights was meant to be a steadfcist safeguard to individ- 
ual liberty These ten amendments were prohibitions against excessive 
government power. They upheld individual rights against govern- 
ment interference. Now, though, an increasing number of Americans 
are accepting and encouraging a different concept of human rights. 
They would accept a new bill of rights that would not restrict govern- 
ment power, but instead authorize more government intrusion into 
our daily affairs. 

As the federal government expands and becomes more intensive, 
we proceed further down the path toward servitude. Willingly or 
unknowingly, most Americans accept their fate. Our future was some- 
what prophesied by James Madison: "There are more instances of the 
abridgment of the freedom of the people by gradual and silent en- 
croachn\ents of those in power than by violent and sudden usurpa- 
tion." 

Madison realized that freedom was threatened by the gradual, 
often deceptive growth of government power. Whenever government 



Against All Enemies / 121 

steps beyond its constitutional duties, society begins to deteriorate. 
When government tries to arrange and direct society in defiance of the 
Constitution, a type of class warfare begins. As government attempts 
to pay for its various programs, it must resort to increased redistribu- 
tion of the wealth. Society and politics become a battle ground where 
everyone demands "his share" of the funds in the federal Treasury. 

Along with the continual struggle by lobbyists, special interest 
groups, and other beneficiaries for a cut of the federal pie, there is a 
corresponding loss of integrity. When the government takes from 
some (or all) to give to others, the redistribution of wealth hurts all 
segments of society — both the productive and the not so productive. 

For example, a businessman finds himself in financial trouble due 
to his own incompetence or mismanagement. He looks to the federal 
government for help, and he receives it. A second economic crisis hits 
him, and he again finds himself rescued by government aid. Soon, he 
has lost his sense of self-responsibility. He has become dependent 
upon a paternalistic government. In this state of dependence, there is 
very little guilt about having his own failure subsidized by money 
taken from the productive elements of society. 

Dependence and Servitude 

Likewise, the productive people — whether they be corporations 
or individuals — slowly lose their sense of accountability, initiative, 
and self-relicmce. They ask themselves why they should continue striv- 
ing so hard, only to have the fruit of their labors taxed away for the 
benefit of others. Thus, there is a growing tendency for the thrifty, 
energetic, and hard-working people in society to work less and even- 
tually become dependent upon government. 

Government intervention is the first step towards dependence 
upon government. After dependence comes servitude. 

If we are to escape the servitude of a socialistic type of govern- 
ment, we must act upon the advice of Patrick Henry: "No free govern- 
ment, or the blessings of Uberty can be preserved to any people but 
by a firm adherence to justice, moderation, temperance, frugality and 
virtue, and by a frequent recurrence to fundamental principles." 

For the United States in the 1980s, "fundamental principles" 
should be the Constihition. Although the work of the Foundmg Fa- 
thers in 1787 is far from perfect, the Constitution does reflect an hon- 
est, firm adherence to certain basic truths about freedom and the pur- 



122 / Robert Bearce 

pose of government. One of the worst mistakes we can make is to 
believe that the Constitution is not relevant for today. The opposite is 
true. 

More than ever, we need to uphold the Constitution with the 
realization that it is based upon certain wise, unchanging principles — 
principles that should be understood and obeyed today as much as 
they were during Madison's day. The Constitution is not an outmoded 
document to be shrugged off as something that cannot or should not 
direct our political, economic, and moral life today. 

Regardless of how durable the Constitution is, it cannot protect 
freedom unless "WE THE PEOPLE of the United States" heed George 
Washington when he said: "The preservation of the sacred fire of 
liberty and the destiny of the republican model of government are 
justly considered, perhaps, as deeply, as finally, staked on the experi- 
ment intrusted to the hands of the American people." 

Identifying Those Who Corrupt the Constitution 

If we have an understanding of how the Constitution can protect 
our freedom from government encroachment, we must first identify 
those individuals and groups who are corrupting the Constitution. 
Are they federal bureaucrats who place their faith in larger and more 
powerful government? Yes, but who puts them in office in the first 
place? 

"WE THE PEOPLE of the United States"! 

Before we can think about the bad guys holding public office, we 
have to ask ourselves how unfaithful we have been to the Constitu- 
tion. The average American's desire for urban renewal, aid to educa- 
tion, price supports, and other handouts is the root of oppressive 
government. When we stop asking for needless government interven- 
tion, the constitutional renegades in Congress will not be reelected. 

As soon as we have our own houses in order regarding allegiance 
to the Constitution, we can turn our attention to those people in gov- 
ernment who want to continue spending our tax money, regulating 
our lives, and seducing other segments of society with their programs 
of government aid. Having a profound understanding of the Constitu- 
tion, we can judge how well our elected and appointed officials are 
living up to their oath of office. 

Sometimes it is possible to detect hostility toward the Constitution 
simply by knowing what government officials say in speeches, inter- 



Against All Enemies / 123 

views, press conferences, or by the written word. More important, 
however, are their voting records and daily actions in office. Can you^ 
own Congressman and Senators answer a truthful "I do" to the oath 
of office? 

Do you solemnly swear that you will support and defend the Constitu- 
tion of the United States against all enemies Joreign and domestic; that you 
will bear true faith and allegiance to the same; that you take this obligation 
freely, without any mental reservation or purpose of evasion; and that you 
will well and faithfully discharge the duties of the office on which you are 
about to enter: So help you God? 

Politicians come and go. New Congresses are sworn in as our 
political process carries on year by year. New administrations take 
over, and new Cabinets cire appointed. Regardless of who our elected 
and appointed officials are — whether they be defenders or betrayers 
of the Constitution — the tasks before us always remain the same. We 
are to comprehend the meaning of the Constitution and uphold it by 
accepting responsibility for planning our own lives. Once our own 
allegiance to the Constitution is firm and true, we can scrutinize our 
government officials with Thomas Jefferson's wisdom in mind: 

"In questions of power let no more be heard of confidence in 
man, but bind him down from mischief by the chains of the Constitu- 
tion." 



rV. "BY THE CHAINS OF THE 
CONSTITUTION" 



The Political Economy of the U.S. Constitution 
by Dwight R. Lee 



During the bicentennial of the U.S. Constihition it is appropriate 
to reflect on the political wisdom of our Founding Fathers. No written 
constitution in history has established a more durable or successful 
democracy than has the U.S. Constitution. A full appreciation of the 
Founding Fathers, however, requires an imderstanding of the eco- 
nomic as well as the political consequences of our Constitution. Every 
economy is a political economy and the enormous success of the U.S. 
economy has been as dependent on our political system as on our 
economic system. 

Indeed, many of the problems that currently plague the U.S. econ- 
omy are the result of our failure to hold on to the political wisdom 
that guided our Founding Fathers. Economic knowledge is obviously 
important in the effort to promote economic growth and development. 
But no matter how sound our economic understanding, economic per- 
formance will continue to suffer until we once again recognize that 
political power is a force for progress only when tightly constrained 
and directed toward limited objectives. 

The genesis of the political and economic wisdom of our Foimding 
Fathers is found in the fact that they distrusted government while fully 
recognizing the necessity of government for a beneficent social order. 
The cautious embrace the Founders gave government is reflected in 
their view of democracy as necessary but not sufficient for the proper 
control of government. 

The concerns that led to the colonists' break with Great Britain 
were very much in the public mind when the Constihitional Conven- 
tion met in Philadelphia during the summer of 1787. The weU known 
prerevolution rallying cry, "No taxation without representation," re- 
flected a clear understanding of the dangers that accompanied any 
exercise of government power not answerable to those who are gov- 
erned. That the government estabUshed by the Constitution would be 
democratic in form was not in doubt. Unchecked democratic nJe, 
however, was anathema to the most thoughtful of the Foundmg Fa- 

oTue is a professor of economics at the University of Georgia. This article was 
originaUy published in the February 1987 issue of The Freeman. 

127 



128 / Dwight R. Lee 

thers. A grievance against English rule rivaling that of "taxation with- 
out representation" concerned the sovereign authority assumed by the 
English Parliament in 1767. In that year Parliament decreed that, 
through its democratically elected members, it had the power to pass 
or strike down any law it desired. The colonists had brought with 
them the English political tradition, which dated back at least to the 
Magna Carta of 1215: the people have certain rights that should be 
immime to political trespass regardless of momentary desires of a 
democratic majority. The concern was not only that the colonists were 
imrepresented in Parliament but, more fundamentally, that Parliament 
assumed unlimited power to meddle in the private lives of individuals 
whether they were represented or not. 

Although the Founding Fathers were determined to establish a 
government that was democratic in the limited sense that political 
decisions could not ignore citizen input, they had no intention of creat- 
ing a government that was fully responsive to majority interests. In 
many ways the Constitution is designed to frustrate the desire of 
political majorities to work their will through the exercise of govern- 
ment power. The most obvious example of this is the first ten amend- 
ments to the Constitution, or the Bill of Rights. These amendments 
guarantee certain individual freedoms against political infringement 
regardless of majority will. If, for example, freedom of speech and the 
press was dependent on majority vote many unpopular but poten- 
tially important ideas would never be disseminated. How effectively 
would a university education expose students to new and controver- 
sial ideas if professors had to submit their lectures for majority ap- 
proval? 

Other examples exist of the undemocratic nature of the govern- 
ment set up by the Constitution. There is very little that can be consid- 
ered democratic about the Supreme Court. Its nine members are ap- 
pointed for life, and their decision can nullify a law passed by the 
Congress and supported by the overwhelming majority of the Ameri- 
can public. In a five to four decision one member of the court, insu- 
lated from the democratic process, can frustrate the political wiD of a 
nearly unanimous public. The arrangement whereby the President can 
reverse the will of the Congress through his veto power is certainly 
not a very democratic one. Neither is the Senate where the vote cast 
by a senator from Wyoming carries weight equal to the vote by the 
senator from California, even though the California senator represents 
a population 50 times larger than does the Wyoming senator. The 
senators from the 26 least populated states can prevent a bill from 
clearing Congress, even though it has incontestable popular support 



The Political Economy of the U.S. Constitution / 129 

in the country at large. Congress is actuaUy less democratic than just 
mdicated once it is recognized that popular bills can be prevented 
from ever being considered in the full House of Representatives or 
Senate by a few representatives who serve on key congressional com- 
mittees. 

It is safe to say that the chief concern of the framers of the Consti- 
tution was not that of insuring a fully democratic political struchire. 
Instead they were concerned with limiting government power in order 
to minimize the abuse of majority rule. In the words of R. A. 
Humphreys, "they were concerned not to make America safe for de- 
mocracy, but to mcike democracy safe for America. ''^ 

Prelude to the Constitutional Convention 

Fear of the arbitrary power that could be exercised by a strong 
central government, democratically controlled or otherwise, was evi- 
dent from the Articles of Confederation. The Articles of Confederation 
established the "national government" of the thirteen colonies after 
they declared their independence from England. There is some exag- 
geration in this use of the term national government, since the Articles 
did little more them formalize an association (or confederation) of thir- 
teen independent and sovereign states. While the congress created by 
the Articles of Confederation was free to deliberate on important is- 
sues and pass laws, it had no means of enforcing them. The Articles 
did not even establish an executive branch of government, and con- 
gressional resolutions were nothing more than recommendations that 
the states could honor if they saw tit. The taxes that states were as- 
sessed to support the Revolutionary War effort were often ignored, 
and raising money to outfit and pay the American army was a frustrat- 
ing business. 

Because of the weakness of the national government, the state 
governments under the Articles of Confederation were strong and 
often misused their power. Majority coalitions motivated by special 
interests found it relatively easy to control state legislatures and tramp 
on the interests of minorities. Questionable banking schemes were 
promoted by debtors, with legislative assistance, in order to reduce the 
real value of their debt obUgations. States often resorted to the simple 
expedient of printing money to satisfy their debts. Trade restrictions 
between the states were commonplace as legislators responded to the 
interests of organized producers while ignoring the concerns of the 
general consumers. There was a 1786 meeting in Annapolis, Maryland, 
of the five middle states to discuss ways to reduce trade barriers be- 



130 / Dwight R. Lee 

tween the states. At this meeting the call was made for a larger meet- 
ing in Philadelphia in the following year to discuss more general prob- 
lems with the Articles of Confederation. This meeting became the 
Constitutional Convention. 

Achieving Weakness Through Strength 

It was the desire of Madison, Hamilton, and other leaders at the 
Constitutional Convention to replace the government established by 
the Articles of Confederation with a central government that was more 
than an association of sovereign states. The new government would 
have to be strong enough to impose some uniformity to financial, 
commercial, and foreign policy and to establish some general protec- 
tions for citizens against the power of state governments if the new 
nation was to be viable and prosperous. In the words of James Madi- 
son, we needed a "general government" sufficiently strong to protect 
"the rights of the minority," which are in jeopardy "in all cases where 
a majority are united by a common interest or passion. "^ But this 
position was not an easy one to defend. Many opponents to a genuine 
national government saw little merit in the desire to strengthen gov- 
ernment power at one level in order to prevent the abuse of govern- 
ment power at another level. Was there any genuine way around this 
apparent conflict? Many thought not, short of giving up on the hope 
of a union of all the states. There were those who argued that the 
expanse and diversity of the thirteen states, much less that of the larger 
continent, were simply too great to be united under one government 
without sacrificing the liberty that they had just fought to achieve.^ 

Madison, however, saw no conflict in strengthening the national 
government in order to control the abuses of government in general. 
In his view the best protection against arbitrary government authority 
was through centers of government power that were in effective com- 
petition with one another. The control that one interest group, or 
faction, could realize through a state government would be largely 
nullified when political decisions resulted from the interaction of op- 
posing factions within many states. Again quoting Madison, 

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 rage for paper 

money for an abolition of debts, for an equal division of prop- 
erty, or for any other improper or wicked project, will be less 



The Political Economy of the U.S. Constitution / 131 

apt to pervade the whole body of the Union than a particular 
member of it — * 

A central government strong enough to unite a large and diverse set 
of states would weaken, rather than strengthen, the control that gov- 
ernment in general could exercise. 

To the framers of the Constitution weakening government in the 
sense just discussed meant making sure that government was unable 
to extend itself beyond a relatively limited role in the affairs of indi- 
viduals. This does not imply, however, impotent government. The 
referees in a football g<une, for example, certainly are not the strongest 
participants on the field and have limited control over specific out- 
comes in the game. Yet in enforcing the general rules of the game the 
decisions of the referees are potent indeed. Government, in its role as 
referee, obviously cannot lack the authority to back up its decisions. 
In addition to performing its refereeing function, it is also desirable for 
government to provide certain public goods; goods such as national 
defense that will not be adequately provided by the private market. 
Again this is a duty which requires a measure of authority; in this case 
the authority to impose taxes up to the limit required to provide those 
public goods which are worth more than they cost. 

How to Impose Control? 

In granting government the power to do those things government 
should do, the Founding Fathers knew they were creating a power 
that had to be carefully controlled. But how could this control be 
imposed? It could not be imposed by specifying a particular list of 
government do's and don't's. Such a list would be impossibly detailed 
and even if it could be drafted it would need to be revised constantly 
in response to changes in such considerations as population size, age 
distribution, wealth, and the state of technology. Instead, government 
has to be controUed by a general set of constihitional rules within 
which governmental decisions are made, with specific government 
outcomes determined through the resulting poUtical process. It w^ 
the hope of those at the Constitutional Convention to estabUsh a pohh- 
cal process, through constitutional reform, that brought government 
power into action only when needed to serve the broad interests of the 

^""^This hope was not based on the naive, though tempting, notion 
that somehow individuals would ignore their personal advantages 



132 / Dwight R. Lee 

and concentrate on the general advantage when making political deci- 
sions. While noble motives are seldom completely absent in guiding 
individual behavior, whether private or public, the Founding Fathers 
took as a given that most people, most of the time, maintain a healthy 
regard for their private concerns. The only way to prevent self-seeking 
people from abusing goverrmient power was to structure the rules of 
the political game in such a way that it would be costly for them to 
do so. The objective of the framers was to create a government that 
was powerful enough to do those things that received political ap- 
proval but to establish a political process that made it exceedingly 
difficult to obtain political approval for any action that lacked broad 
public support. 

There were, of course, some powers that the national government 
was not constitutionally permitted to exercise. The national govern- 
ment was created by the states, and until the Constitution all govern- 
mental power resided in the states. Through the Constitution the states 
relinquished some of their powers to the national government, e.g., 
the power to impose taxes on the citizens, establish uniform rules of 
naturalization, raise an army and navy, and declare war. In addition 
the states agreed to refrain from exercising certain powers; e.g., the 
power to coin money, pass laws impairing the obligation of contracts, 
and pass retroactive laws. Important government powers remained 
in the states, however, with some of them located in the local govern- 
ments. Thus the powers that could be exercised by government were 
limited, and the powers that did exist were diffused over three levels 
of government. The Constitution further diffused power at the na- 
tional level by spreading it horizontally over three branches of govern- 
ment, the power of each acting as a check and balance on the power 
of the others. 

The intent of the Founding Fathers was to so fragment govern- 
ment power that it would be extremely difficult for any narrowly 
motivated faction to gain sufficient control to work its political will. 
Only those objectives widely shared and consistent with constitu- 
tional limits would be realized through the use of government power. 
The beauty of the political process established by the Constitution is 
that it is cumbersome and inefficient. According to Forrest McDonald 
the process is "So cumbersome and inefficient . . . that the people, 
however virtuous or wicked, could not activate it. It could be activated 
through deals and deceit, through bargains and bribery, through log- 
rolling and lobbying and trickery and trading, the tactics that go with 
man's baser attributes, most notably his greed and his love of power. 
And yet, in the broad range and on the average, these private tactics 



The Political Economy of the U.S. Constitution / 133 

and motivations could operate effectively only when they were com- 
patible with the pubUc good, for they were braked by the massive 
inertia of society as a whole/'S Or, as Clinton Rossiter has said of the 
Founding Fathers' motives in creating the system of checks and bal- 
ances, "Liberty rather than authority, protection rather than power, 
delay rather than efficiency were the concern of these constitution- 
makers."^ 



The Economic Success of the Constitution 

It is hard to argue with the success of the U.S. Constitution. The 
history of the United States in the decades after the ratification of the 
Constitution was one of limited government and individual liberty, 
major increases in the size of the U.S. in terms of population and 
geography, and unprecedented growth in economic well-being. With 
the major exception of (emd to a large extent, in spite of) the unfortu- 
nate legacy of slavery and the Civil War, millions of diverse people 
were able to pursue their individual objectives through harmonious 
and productive interaction with one another. The opportunities cre- 
ated by the process of specialization and exchange made possible by 
limited and responsible government motivated an outpouring of pro- 
ductive effort that soon transformed a wilderness into one of the most 
prosperous nations in the world. The role the U.S. Constitution played 
in this transformation was an important one and can be explained in 
terms of both negative and positive incentives. 

Broadly speaking there are two ways an individual can acquire 
wealth: (1) capture existing wealth through nonproductive transfer 
activities, or (2) create new wealth through productive activities. A 
major strength of the Constitution is that it established positive incen- 
tives for the latter activities and negative incentives for the former. 

The most obvious form of nonproductive transfer activity is pri- 
vate theft. The thief simply takes through force or stealth something 
that belongs to someone else. A primary purpose for establishing gov- 
ernment is to outiaw private theft. But the power that government 
necessarily possesses if it is to enforce laws against private theft is a 
power that affords individuals or groups the opportunity to benefit 
through public "theft" (legal transfer activity to phrase it more gentiy). 
The more vague and ineffective the limits on government authority, 
the less difficult it is to acquire legal transfers through poUtical activity, 
and the larger the number of people who will find this activity offenng 
them the greatest profit opportunity. 

While those who are successful at the transfer game can mcrease 



134 / Dwight R. Lee 

their personal wealth, in some cases significantly, it is obvious that the 
country at large cannot increase its wealth through transfer activity. 
What one person receives is what another person, or group, loses. No 
net wealth is created, and for this reason transfer activity is often 
referred to as a zero-sum game. In fact, it is more accurately described 
as a negative-simi game. The attempts of some to acquire transfers, 
and the predictable efforts of others to protect their wealth against 
transfers, require the use of real resources. These resources could be 
productively employed creating new wealth rather than wasted in 
activities that do nothing more than redistribute existing wealth. For 
every dollar that one person receives from a transfer activity the rest 
of the community sacrifices more than a dollar. 

Incentives to Produce 

A major virtue of the U.S. Constitution was that it discouraged 
people from playing the transfer game. By establishing a governmen- 
tal apparatus that was very difficult to put in motion for narrowly 
motivated purposes, the Constitution dampened the incentive to use 
government as a means of acquiring the wealth of others. This is not 
to say that the government was not used as a vehicle for transfer in 
the early days of our constitutional government. Every political deci- 
sion results in some redistribution of wealth, and no governmental 
structure will ever completely insulate the political process against the 
transfer activities of some.^ But the opportunity for personal enrich- 
ment through political activity was limited. Most f)eople found that 
the best way to increase their wealth was through wealth-producing 
activities. 

It was here that the political structure established by the Constitu- 
tion created positive incentives. Not only did the Constitution estab- 
lish a climate in which it was difficult to profit from transfer activities, 
it also created a setting in which productive effort was rewarded. By 
providing protection against the arbitrary taking of private property 
(the Fifth Article of the Bill of Rights) people were given assurance 
that they would not be denied the value generated by their efforts. 
This provided people with strong incentives to apply themselves and 
their property diligently. In the words of M. Bruce Johnson, "America 
was a place where if you were ready to sow, then by God you could 
reap."^ 

But the motivation to work hard is not enough for a productive 
economy. Also needed is information on the objectives toward which 
effort and resources are best directed, as well as incentives to act on 



The Political Economy of the U.S. Constitution / 135 

this information. It is the protection of private property that provides 
the foundation for a system of price communication and market inter- 
action which serves to guide effort and resources into their most valu- 
able employments. To complete this system the concept of private 
property rights has to be expanded to include the right to transfer 
one's property to others at terms regulated only by the mutual consent 
of those v^ho are party to the exchange. The lower the cost of entering 
into transactions of this type, the more effectively the resulting market 
prices will allow people to communicate and coordinate with each 
other to the advantage of all. The U.S. Constitution lowered these 
transaction costs by reducing government's ability to interfere with 
mutually acceptable exchanges and by putting the weight of the na- 
tional government behind the sanctity of the contracts that resulted 
from these exchanges. 

In what has become known as the "contract clause" of the Consti- 
tution, the states are forbidden from passing any "law impairing the 
obligation of contracts " In the same clause the states are also for- 
bidden from imposing tariff duties on imports or exports (unless abso- 
lutely necessary for enforcing inspection laws). In the "commerce 
clause" the national government was given the power to regulate 
commerce "among the several states." Though the commerce clause 
can be interpreted (and indeed has been in recent decades) as provid- 
ing the central government the authority to substitute political deci- 
sions for market decisions over interstate commerce, the U.S. Congress 
ignored this possibility until it passed the Interstate Commerce Act in 
1887. Prior to the Civil War the commerce clause was used instead by 
the U.S. Supreme Court to rule unconstitutional state laws that at- 
tempted to regulate commerce. After 1868 the Supreme Court made 
use of the doctrine of due process as expressed in the fourteenth 
amendment to strike down many government attempts to violate the 
sanctity of contracts through their regulation of such things as prices, 
working hours, working conditions, and pay. 

In summary, the Constitution created an environment in which 
private advantage was best served by engaging in productive positive- 
sum activities. The specialization and exchange facilitated by the con- 
stitutional rules of the game is a system in which individuals can 
improve their own position only by serving the interests of others. 
When private property is protected against confiscation, an individual 
becomes wealthy only by developing skills, creating new products, or 
innovating better technologies and thereby providing consumers with 
more attractive options than they would otherwise have. In a truly 
free enterprise economy, with the minimum government role envi- 



136 / Dwight R. Lee 

sioned by the framers of the Constitution, the rich are the benefactors 
of the masses, not the exploiters as commonly depicted. Wealth 
through exploitation becomes possible only when unrestricted gov- 
ernment allows negative-sum transfer activity to become more profit- 
able than positive-sum market activity. 

Constitutional Erosion and the Rise of Political Piracy 

The early success of the Constitution, and the economic system 
that developed under it, is reflected in the fact that relatively few 
people felt any urgency to worry about politics. Political activity of- 
fered little return as there was little chance to exploit others, and little 
need to prevent from being exploited by others, through political in- 
volvement. People could safely get on with their private affairs with- 
out having to worry about the machinations and intrigues of politi- 
cians and bureaucrats in faraway places. But this very success Ccm, 
over time, undermine itself as a politiccdly complacent public increases 
the opportunities for those who are politically involved to engage in 
political chicanery. 

Motivating people to maintain the political vigilance necessary to 
protect themselves against government is always a difficult task. The 
individual who becomes involved in political activity incurs a direct 
cost. By devoting time and resources in attempting to realize political 
objectives he is sacrificing alternative objectives. The motivation to 
become politically active will be a compelling one only if the expected 
political outcome is worth more to the individual than the necessary 
personal sacrifices. This will typically not be the case when the objec- 
tive is to prevent government from undermining the market process 
that it is government's proper role to protect. The benefits that are 
realized from limited government are general benefits. These benefits 
accrue to each individual in the community whether or not he person- 
ally works to constrain government. 

Over the broad range of political issues, then, people quite ration- 
ally do not want to get involved. This is not to say, however, that 
everyone will be apathetic about all political issues. This clearly is not 
the case, and it is possible to predict the circumstances that will moti- 
vate political activism. Often a relatively small number of individuals 
will receive most of the benefit from a particular political decision, 
while the community at large bears the cost. Members of such a special 
interest group will find it relatively easy to organize for the purpose 
of exerting political influence. The number of people to organize is 
comparatively small; the group is probably already somewhat orga- 



The Political Economy of the U.S. Constitution / 137 

nized around a common interest, and the political issues that affect 
this common interest will be of significant importance to each member 
of the group. 

Of course, the free rider problem exists in all organizational ef- 
forts, but the smaller the group and the narrower the objective the 
easier it is to get everyone to contribute his share. Also, the benefits 
of effective effort can be so great to particular individuals in the group 
that they will be motivated to work for the common objective even if 
some members of the group do free-ride. Not surprisingly then, nar- 
rowly focused groups commonly will have the motivation and ability 
to organize for the purpose of pursuing political objectives.^ The result 
is political piracy in which the politically organized are able to capture 
ill-gotten gains from the politically unorganized. 

The constitutional limits on government imposed effective re- 
straints on political piracy for many years after the Constitution was 
ratified. There are undoubtedly many explanations for this. The vast 
frontier rich in natural resources offered opportunities for wealth crea- 
tion that, for most people, overwhelmed the opportimities for personal 
gain through government transfer activity. Also, it can take time for 
politically effective coalitions to form after the slate has been wiped 
clean, so to speak, by a social upheavel of the magnitude of first the 
Revolutionary War and then the Civil War.^^ Public attitudes were 
also an important consideration in the control of the government. 

Much has been written about how the pervasive distrust of gov- 
ernment power among the American people shaped the framing of a 
Constitution that worked to limit government.^! What might be more 
important is that the Constitution worked to limit government because 
the public had a healthy distrust of government power. For example, 
in the 1860s the Baltimore and Ohio railroad had its Harpers Ferry 
bridge blown up many times by both the Confederate and Union 
armies, and each time the raikoad rebuilt the bridge with its own 
funds without any attempt to get the government to pick up part of 
the tab. Or consider the fact that in 1887 President Grover Cleveland 
vetoed an appropriation of $25,000 for seed com to assist drought- 
stricken farmers with the statement, "It is not the duty of government 
to support the people."i2 xhere is Uttle doubt that Cleveland's view 
on this matter was in keeping with broad public opinion. 

The constitutional safeguards against government transfer activity 
unfortunately have lost much of their effectiveness over the years. The 
western frontier disappeared, and a long period of relative stabihty m 
the political order provided time for factions to become entrenched m 
the poUtical process. Of more direct and crucial importance, however. 



138 / Dwight R. Lee 

in the move from productive activity to transfer activity has been the 
weakening judicial barrier to the use of government to advance special 
interests. The 1877 Supreme Court decision in Munn v. Illinois is often 
considered to be a watershed case. This decision upheld a lower court 
ruling that the Illinois state legislature had the authority to determine 
the rates that could be charged for storing grain. This decision, by 
sanctioning an expanded role for government in the determination of 
prices, increased the payoff to political activity relative to market activ- 
ity and established an important precedent for future increases in that 
payoff. 

In Chicago Milwaukee and St. Paul Railroad Co. v. Minnesota, decided 
in 1890, the Supreme Court imposed what appeared to be limits on 
state regulation of economic activity by ruling that such regulation 
must be reasonable. Unfortunately, this reasonableness doctrine put 
the effectiveness of judicial restraint on government at the mercy of 
current fashion in social thought. What is considered unreasonable at 
one time may be considered quite reasonable at another. ^^ It was un- 
reasonable for the Baltimore and Ohio railroad to consider requesting 
goverrunent funds to repair its Harpers Ferry bridge, destroyed by 
government forces, during the Civil War. In the 1980s it was consid- 
ered reasonable for Chrysler Corporation to request and receive a 
federal government bailout because Chrysler was not competing suc- 
cessfully for the consumer's dollar. 

Undermining Constitutional Law 

The idea of reasonable regulation significantly undermined the 
concept of a higher constitutional law that established protections 
needed for the long-run viability of a free and productive social order. 
Once the notion of reasonable regulation stuck its nose into the judicial 
tent it was just a matter of time before the courts began seeing their 
task as that of judging particular outcomes rather than overseeing the 
general rules of the game. Illustrative of this changing emphasis was 
the legal brief submitted by Louis Brandeis, then an attorney for the 
state of Oregon, in the 1908 case Muller v. Oregon. At issue was the 
constitutionality of an Oregon law which regulated the working hours 
of women. The Brandeis brief contained only a few pages addressing 
constitutional considerations and well over one hundred pages of so- 
cial economic data and argumentation attempting to establish the un- 
fortunate consequences of women working long hours. It was a judg- 
ment on the reasonableness of a particular outcome, women working 
long hours, rather than constitutional considerations, which were con- 



The Political Economy of the U.S. Constitution / 139 

sidered of paramount importance and led to a Supreme Court ruling 
in favor of Oregon.i^ When the constitutionaUty of legislation stands 
or falls on the "reasonableness" of the particular outcomes it hopes to 
achieve, opportunities increase for people to increase their wealth 
through nonproductive political activity. 

In the 1911 case United States v. Grimand, the Supreme Court 
handed down a decision that significantly increased the private return 
to obtaining transfers through political influence. Prior to this decision, 
the U.S. Congress had increasingly moved toward granting adminis- 
trative agencies the authority to promulgate specific rules in order to 
implement the genercd policy objectives outlined by Congress. In 
United States v. Grimand the high court empowered these administra- 
tive rulings with the full force of law. After this decision, the cost of 
successfully using government authority to transfer wealth decreased 
significantly as special interest groups seeking preferential treatment 
could concentrate their influence on a few key members of a particular 
administrative board or agency. The typical result of this has been the 
development of symbiotic relationships between bureaucratic agencies 
and their special interest clients. A special interest group can thrive 
on the benefits transferred to it by the ruling of a bureaucracy, and the 
bureaucracy's budget and prestige will depend on a thriving special 
interest group demanding its services. ^^ 

What we have observed over the years is a slow, somewhat erratic, 
but unmistakable breeikdown in the protection the Constitution pro- 
vides the public against arbitrary government power. Those who want 
to get on with the task of creating new wealth have much less assur- 
ance today then they did in the past that significant portions of the 
wealth they create will not be confiscated by government and trans- 
ferred to those who have specialized in political influence. 

Maintaining constitutional constraints on government transfer ac- 
tivity is a task requiring constant vigilance. Once a breakdown in these 
constraints begins, it can initiate a destructive dynamic of increasing 
government transfers that is difficult to control. Any change that 
makes it easier to obtain transfers through government will motivate 
some people to redirect tiieir efforts away from productive enterprises 
and into transfer enterprises. As tiiis is done, those who continue to 
create new wealth find the payoff from doing so is somewhat dimin- 
ished as more of this wealth is being taken from them. This hirther 
reduction in the relative return to productive activity motivates yet 
more people to use government power to benefit at the expense of 
others. Furthermore, tiie burdens and inefficiencies created by one 
government program wiU be used as "justification" for yet additional 



140 / Dwight R. Lee 

government programs which will create new burdens and inefficien- 
cies.^^ This dynamic can lead to what is best characterized as a "trans- 
fer society."^^ 

Political Piracy and the Transfer Society 

Once we start down the road to the transfer society we can easily 
find ourselves trapped in a situation almost everyone will disapprove 
of, but which no one will be willing to change. The analogy of piracy 
is appropriate here. When all ships are productively employed ship- 
ping the goods, a large amount of wealth can be generated. But if 
sanctions against piracy are eased a few shippers may find it to their 
personal advantage to stop shipping and start pirating the merchan- 
dise being shipped by others, even though this reduces the total 
wealth available. This piracy by the few will reduce the return the 
others receive from shipping, and there will be an increase in the 
number finding the advantage in piracy. Eventually the point may be 
reached where everyone is sailing the seas looking for the booty that 
used to be shipped but is no longer. No one is doing well under these 
circumstances, and indeed, all would be much better off if everyone 
would return to shipping the goods. Yet who will be willing to return 
to productive shipping when everyone else is a pirate? 

Obviously we have not yet arrived at the point of being a full- 
blown transfer society; not everyone has become a political pirate. 
There are plenty of people who remain productive, cind they still re- 
ceive a measure of protection against the confiscation of the returns 
to their efforts by the constitutional limitations that remain on govern- 
ment power. But there can be no doubt that these limitations are less 
effective today than they were in the past. This erosion is in large 
measure due to a change in the prevailing attitude toward govern- 
ment. The fear of unrestrained government power that guided the 
Founding Fathers has been largely replaced with the view that discre- 
tionary government power is a force for social good. If there is a 
problem, goverrunent supposedly has the obligation and ability to 
solve it. Such public attitudes have a decisive influence on the effec- 
tiveness of constitutional limitations. 

Simply writing something down on a docimfient called the Consti- 
tution does not by itself make it so. And, because of this fact, Alexis 
de Tocqueville, writing in the 1830s, predicted that the U.S. Constitu- 
tion would eventually cease to exercise effective restraint on govern- 
ment. According to Tocqueville, "The government of the Union de- 
pends almost entirely upon legal fictions." He continued that it would 



The Political Economy of the U.S. ^Constitution / 141 

be difficult to imagine that it is possible by the aid of legal fictions to 
prevent men from finding out and employing those means of gratify- 
ing their passions which have been left open to them/'^^ 

But controlling our passions is what constitutional government is 
all about. In the absence of government we have the anarchy of the 
Hobbesian jungle in which those who control their passion for imme- 
diate gratification and apply their efforts toward long-run objectives 
only increase their vulnerability to the predation of those who exercise 
no control or foresight. Granting government the power to enforce 
general rules of social interaction is surely a necessary condition if a 
productive social order is to emerge from a state of anarchy. But with- 
out strict constitutional limits on the scope of government activity, the 
existence of government power will orUy increase the scope of effective 
predation. The notion that government can solve all problems be- 
comes a convenient pretense for those who would solve their prob- 
lems, not in cooperation with others, but at the expense of others. 
Unlimited government reduces the personal advantage to the produc- 
tive pursuit of long-run objectives just as surely as does anarchy. In 
such a case, government is little more than the means of moving from 
the anarchy of the Hobbesian jungle to the anarchy of the political 
jungle. 

The Americtin experience, however, demonstrates convincingly 
that with a healthy fear of government power and a realistic under- 
standing of human nature, a constitution can be designed that, over a 
long period of time, will effectively constrain goverrunent to operate 
within the limits defined by the delicate balance between proper 
power and prudent restraint. All that is needed to restore the U.S. 
Constitution to its full effectiveness is a return to the political wisdom 
that guided our Founding Fathers 200 years ago. 

Conclusion 

The United States is a wealthy country today in large part because 
our Founding Fathers had what can be quite accurately described as 
a negative attihide toward government. They had little confidence m 
the ability of government to promote social well-being through the 
appUcation of government power to achieve particular ends. In their 
view, the best that government can realisticaUy hope to achieve is the 
establishment of a social setting in which individuals are free, withm 
the limits of general laws, to productively pursue their own objectives. 
This negative view of government contrasts sharply with the domi- 
nant view today; the view that government is the problem solver ot 



142 / Dwight R. Lee 

last resort and has an obligation to provide a solution to any problem 
not resolved immediately in the private sector. Unfortunately, this 
positive view of government is less conducive to positive conse- 
quences than the negative view of the Founders. According to F. A. 
Hayek: 

The first [positive view] gives us a sense of unlimited power 
to realize our wishes, while the second [negative view] leads 
to the insight that there are limitations to what we can deliber- 
ately bring about, and to the recognition that some of our 
present hopes are delusions. Yet the effect of allowing our- 
selves to be deluded by the first view has always been that 
man has actually limited the scope of what he can achieve. For 
it has always been the recognition of the limits of the possible 
which has enabled man to make full use of his powers. ^^ 

The exercise of government can, without doubt, be used to accom- 
plish particular ends. Neither can it be denied that many of the specific 
outcomes realized through government programs provide important 
benefits and advance worthy objectives. But, as is always the case, 
those accomplishments are only realized at a cost, and the pervasive 
truth about government accomplishments is that those who benefit 
from them are seldom those who pay the cost. Indeed, much of the 
motivation for engaging in political actions is to escape the discipline 
imposed by the market where individuals are accountable for the cost 
of their choices. 

The escape from market discipline is the inevitable consequence 
of reducing the constitutional limits on the use of government power. 
The immediate and visible benefits that are generated by wide-ranging 
goverrunent discretion are paid for by a shift in the incentive structure 
that, over the long nm, will reduce the amount of good that can be 
accomplished. More, much more, has been accomplished by the 
American people because our Founding Fathers had a strong sense of 
the limits on what can be accomplished by government. 

1. R. A. Humphreys, "The Rule of Law and The American Revolution," Law Quar- 
terly Review (1937). Also quoted in F. A. Hayek, The Constitution of Liberty (Chicago: 
University of Chicago Press, 1960), p. 474. 

2. Records of the Federal Convention of 1787, Max Ferrand, ed. (New Haven: Yale 
University Press, 1937), Vol. 1., p. 57 and pp. 134-35. 

3. See Herbert J. Storing, What the Anti-Federalists Were for: The Political Thought of 
the Opponents of the Constitution (Chicago: The University of Chicago Press, 1981). 



The PoUHcal Economy of the U.S. Constitution / 143 

4. Madison in Federalist 10, The Federalist Papers (New York: New American Library 
Edition, 1961). ' 

5. Forrest McDonald, E Pluribus Unum: The Foundation of the American Republic 
1776-1790 (Indianapolis: Liberty Press, 1979), p. 316. 

6. Clinton Rossiter, Seedtime of the Republic: The Origin of the American Tradition of 
Political Uberty (New York: Harcourt, Brace and World, 1953), p. 425. 

7. For a discussion of the use of government to transfer wealth throughout Ameri- 
can history, see Jonathan R. T. Hughes, The Governmental Habit: Economic Controls from 
Colonial Times to the Present (New York: Basic Books, 1977). 

8. M. Bruce Johnson , ed.. Resolving the Housing Crisis: Government Policy, Decontrol, 
and the Public Interest (San Francisco: Pacific Instihite for Public Research, 1982), p. 3. 

9. According to Milton Friedman, "The most potent group in a democracy like 
ours is a small minority that has a special interest which it values very highly, for which 
it is willing to give its vote, regardless of what happens elsewhere, and about which the 
rest of the community does not care very strongly." See Milton Friedman, "Special 
Interest and His Law," Chicago Bar Record (June 1970). 

10. Mancur Olson, 77m? Rise and Decline of Nations (New Haven: Yale University 
Press, 1982). 

11. Gordon S. Wood, The Creation of the American Republic 1776-1787 (Chapel Hill: 
The University of North Carolina Press, 1969), especially chapter 1. 

12. Quoted in A. Nevins, Grover Cleveland: A Study in Courage (New York: Dodd 
Mead, 1932). 

13. In spite of the two decisions just cited, between 1897 and 1937, the Supreme 
Court made use of the due process clause of the Fourteenth Amendment to reach 
decisions that served to protect the market process against political intrusions. See 
Bernard Siegan, Economic Liberties and the Constitution (Chicago: University of Chi- 
cago Press, 1981). Unfortunately, this pattern of judicial decision was not solid enough 
to prevent these decisions from being ignored or overruled when the political climate 
and prevailing notions of reasonableness changed. 

14. For a brief but useful discussion of this case see Thomas K. McCraw, Prophets 
of Regulation (Cambridge: The Belknap Press of Harvard University Press, 1984), pp. 
87-88. 

15. The relationship between the U.S. Department of Agriculture and the farm bloc 
is but one of the many illustrative examples that could be cited here. It is clear that those 
employed by the Department of Agriculture support the agricultural price support and 
subsidy programs that transfer literally billions of dollars every year from the American 
consumer and taxpayer to the nation's farmers (most of this transfer goes to the wealthi- 
est farms: see Bruce L. Gardner, The Governing of Agriculture [Lawrence: Regents Press 
of Kansas, 1981]). It is by expanding these programs that the Department of Agriculture 
can justify bigger budgets and more employees, something it has been quite successhil 
at doing. In 1920 when the farm population was approximately 31 million, the Depart- 
ment of Agriculture employed 19,500 people. By 1975 the farm population had declined 
to less than 9 milUon, but the Department of Agriculture had increased its employment 
to 121,000 people. This trend toward fewer agricultural workers relative to agncultural 
bureaucrats has continued into the 1980s. 

16. Our federal farm programs are a perfect example of this process. See Gardner, 
ibid. Early on James Madison recognized the possibility of this type of legislative chain 
reacHon. In Federalist 44 Madison states, "that legislative interference, is but the first 
link of a long chain of repetitions; every subsequent interference being naturally pro- 
duced by the effects of the preceding." 



144 / Dwight R. Lee 

17. For a detailed and compelling analysis of how the breakdown in constitutional 
limitations on government activity has moved the U.S. away from a positive-sum eco- 
nomic activity and toward negative-sum activity, see Terry L. Anderson and Peter J. 
Hill, The Birth of a Transfer Society (Stanford, Calif: Hoover Institution Press, 1980). 

18. Quoted in Felix Morley, Freedom and Federalism (Chicago: Regnery, 1959), pp. 
138-139. 

19. Friedrich A. Hayek, Law, Legislation and Liberty, Vol 1, Rules and Order (Chicago: 
University of Chicago Press, 1973), p. 8. 



J 



I 



Constitutional Restraints on Power 
by Edmund A. Opitz 



American political institutions presuppose certain convictions 
about human nature, the worth and prerogatives of persons, the 
meaning of life, the distinction between right and wrong, and the 
destiny of the individual. The Colonists came to their understanding 
of these matters as heirs of the intellectual and religious heritage of 
Christendom — the culture whose shaping forces sprang from ancient 
Israel, Greece, and Rome. 

Given the consensus of two centuries ago — which regarded man 
as a sovereign person under God — it was only logical to structure 
government so as to expand opportimities for the exercise of personal 
freedom. The Constitution is clearly designed to maximize each indi- 
vidual's equal right to pursue his own peaceful goals and enjoy the 
benefits and responsibilities of ownership. 

The Declaration of Independence put into words what nearly 
everyone was thinking, that personal rights and immunities are ours 
because we are created beings, that is, we manifest a major purpose 
and intent of this universe. This implies a firm rejection of the alterna- 
tive, which is to assume that we are the mere end products of natural 
and social forces, adrift in a meaningless cosmos. For if the universe 
is meaningless, then no way of life is any more meaningful than any 
other; in which case Power has no limits. 

Our forebears had firm convictions about the purpose of life, and 
knew that in order to achieve life's transcendent end Power must be 
limited: "Resistance to tyrants is obedience to God,'' they declared. If 
life is viewed in these terms, how shall we conceive the proper scope 
and competence of government? What is its role in society? What 
functions should we assign to it? 

Government is the power structure of a society. This is the first 
and most important fact about the poUtical agency that it has the legal 
authority to coerce. The second thing is to inquire whether the power 
wielded by government is self-sprung, or delegated by a more com- 



The Reverend Mr. Opitz, a member of the staff of the Foundation ^or Economic 
Education, is a contributing editor of The Freeman. He is the editor of Uvmthan at War. 
This article was originaUy published in the April 1978 issue of The Freeman. 



145 



146 / Edmund A. Opitz 

prehensive authority than the merely political. Does government rule 
autonomously or by divine right; or is the real power located else- 
where and merely loaned to government? The Constitution is clear 
on this point; the power is in the people to lay down the laws which 
Power must obey. They set it up; they tell it what to do. 

"We, the People of the United States," reads the Preamble, "do 
ordain and establish this Constitution for the United States of Amer- 
ica." 

Specific Limitations 

The people empower an agency to do certain things for them as a 
nation, but if we isolate the provisions they laid down to limit govern- 
ment the prevailing intent or consensus which made the Constitution 
its political tool becomes clearer. 

The powers not delegated to the United States by the Constitu- 
tion, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people. 

Amendment X 

The people, furthermore, possess a body of rights by native endow- 
ment above and beyond those mentioned in the Constitution. 

The enumeration in the Constitution of certain rights, shall 
not be construed to deny or disparage others retained by the 
people. 

Amendment IX 

These sovereign people shall be free to worship, speak, and publish 
freely. 

Congress shall make no law respecting cm establishment of 
religion, or prohibiting the free exercise thereof. 

Amendment I 

Congress shall make no law abridging the freedom of speech. 

Amendment I 

Congress shall make no law abridging the freedom ... of the 
press. 

Amendment I 



I 



Constitutional Restraints on Power / U7 

Voluntary association is the coroUary of individual Uberty, and this is 
emphasized, as well as the right of petition. 

Congress shall make no law abridging ... the right of the 
people peaceably to assemble. 

Amendment I 

Congress shall make no law abridging the right of the people 
... to petition the Government for a redress of grievances. 

Amendment I 

The old world divisions of mankind into castes and orders of rank are 
to be no more. 

No title of nobility shall be granted by the United States. 

Article I, 9 

Every citizen shall have a right to participate in the processes by which 
the nation is governed; and, should he desire to run for public office 
he shall not be put to a creedal test. 

The right of the citizens of the United States to vote shall not 
be denied or abridged — 

Amendments XV and XIX 

No religious test shall ever be required as a qualification to 
any office or public trust under the Uruted States. 

Article VI 

Freedom to Trade; No Special Privilege 

Commerce makes for a free and prosperous people, so restraints 
on trade shall be removed. 

No tax or duty shaU be laid on articles exported from any 

State. ... . . , r n 

ArHcle I 9 

No preference shaU be given by any regulation of commerce 
or revenue to the ports of one State over those of another 

/vrticie 1/ y 



148 / Edmund A. Opitz 

Progressive taxation violates the principle of equal treatment under 
the law — ^penalizes ability, and lowers productivity, so it is forbidden. 

No capitation, or other direct, tax shall be laid, unless in pro- 
portion to the census 

Article l, 9 

The public treasury shall be inviolate; government shall not confer 
economic privilege on some at the expense of others. 

No money shall be drawn from the Treasury, but in conse- 
quence of appropriations made by law. 

Article /, 9 

Personal privacy shall be respected and jealously guarded. 

The right of the people to be secure in their persons, houses, 
papers, and effects . . . shall not be violated. 

Amendment IV 

Conflict is a built-in feature of human action, and when collisions of 
interest do occur in society, the rights of the individual must be main- 
tained. 

No person shall ... be deprived of life, liberty, or property, 
without due process of law. 

Amendment V 

Nor shall private property be taken for public use without just 
compensation. 

Amendment V 

Strings on the Military 

In some nations, the civilian life is a mere appendage to the mili- 
tary. This will not happen here because civilians control the purse 
strings. 

No appropriation of money (to raise and support military and 
naval forces) shall be for a longer term than two years. 

Article L 8 



I 



Constitutional Restraints on Power / 149 

As a further safeguard against any future militarization of this nation, 
the civilian sector must have the means for defending itself. 

The right of the people to keep and bear arms, shall not be 
infringed. 

Amendment II 

In some countries, criminal proceedings are used to entrap citizens, 
whose guilt is assumed; the burden of proof is on them to show their 
innocence. Here, the innocence of the accused is assumed, until his 
guilt is proved. The law shall not reach backward to designate as 
criminal an action which until then was innocent. 

No ...ex post facto law shcdl be passed. 

Article I, 9 

There shall be no Star Chamber proceedings. 

No person shall be held to answer for a capital, or otherwise 
infamous crime, unless on a presentment or indictment of a 
Grand Jury. 

Amendment V 



Protecting the Accused 

The accused is protected against illegal imprisonment, and must 
be informed of the charges against him. 

The privilege of the writ of habeas corpus shall not be sus- 
pended. 

ArHcle /, 9 

Punishment shall fit the crime; it shall not mean extinction of civil 
rights, forfeiture of property, or penalties against kin. 

No bill of attainder . . . shall be passed. 

Article I 9 



The accused is entitled to be tried by his peers. 
... the right of trial by jury shall be preserved. 



Amendment VII 



150 / Edmund A. Opitz 

There is to be no forced self-incrimination. 

Nor shall [he] be compelled in any crinunal case to be a wit- 
ness against himself. 

Amendment V 

The rights of the accused are simmiarized: 

1. ... a speedy and public trial, by an impartial jury; 

2. ... Within the district wherein the crime shall have been 
committed; 

3. ... to be informed of the nature and cause of the accusation; 

4. ... to be confronted with the witnesses against him; 

5. ... to have compulsory process for obtaining witnesses in 
his favor; 

6. ... and to have the assistance of counsel for his defense. 

Amendment VI 

Even when fovind guilty, the accused is protected. 

1. Excessive bail shall not be required; 

2. Nor excessive fines imposed; 

3. Nor cruel and unusual punishments inflicted. 

Amendment VIIl 

Treason 

Treason is a crime against the nation, so serious that it must be 
defined with special care. 

Treason against the United States, shall consist only in levying 
war against them, or in adhering to their enemies, giving them 
aid and comfort. 

Article HI, 3 

The person judged guilty of treason is personally responsible for his 
crime, and therefore his family and kin shall not be punished. 

No attainder of treason shall work corruption of blood. 

ArticU III 3 

Impeachment is a special case. 



Constitutional Restraints on Power / 151 

The Senate shaU have the sole power to try all impeachments 
... and no person shaU be convicted without the concurrence 
of two-thirds of the members present. 

Judgment . . . shall not extend further than to removal 
from office, and disqualification to hold any office of honor 
trust or profit under the United States. 

Article I, 3 
A blind spot in the original Constitution is corrected. 

Neither slavery, nor involuntary servitude, except as punish- 
ment for crime 

Amendment XIII 

No state shall . . . deny to any person within its jurisdiction the 
equal protection of the laws. 

Amendment XIV 

The separate states are not wholly sovereign. 

No state shall enter into any treaty . . . coin money . . . pass 
any law impairing the obligation of contracts. 

ArHcle 1, 10 

The Method of Freedom 

There is a strong penchant in human nature which impels people 
who feel strongly about something — a good cause, say — to group their 
forces and use the power of government to fasten their panacea on 
those they've been unable to persuade. The Constitution is a prime 
example of the limitations placed upon governmental power so that 
people with a cause to advance must resort to education, persuasion, 
and example only. This is the method of freedom, and a people com- 
mitted to the method of freedom find the Constitution still an apt 
instrument for structuring a society which maximizes freedom and 
opportunity for all persons. It was designed to establish a national 
government internally controlled by checks and balances between the 
separate powers. And government was to be further limited by the 
federal structure itself, in which the centripetal power of Washington 
was to be offset by the centrifugal powers of the separate states. It was 
not a perfect document, but it carried the means of its own correction, 
and it did embody the consensus of the people for whom freedom was 



152 / Edmund A. Opitz 

the prime political good. It was workable. And it will work again 
whenever a significant number of people have the force of intellect to 
comprehend sound ideas, and the force of character to make them 
prevail. 



Not in the Constitution 
by George W. Nilsson 

The Constitution of Vermont reminds us: 

. . . that frequent recurrence to fundamental principles and a 
firm adherence to justice, moderation, temperance, industry, 
and frugality are absolutely necessary to preserve the bless- 
ings of liberty and keep government free. 

In addition to the threats of danger from outside of the United 
States, and subversion within, the constitutional republic of the United 
States is being threatened by the concentration of power in the federal 
government in spite of, and contrary to, the "checks and balances" of 
the Constitution. 

Much of such concentration has been due to two World Wars and 
the Korean War, but more especially by twisting out of shape the 
interstate conunerce clause of the Constitution (Article 1, Section 8, 
Clause 3), using taxing power for purutive purposes instead of for 
raising revenue as authorized, and by misusing the general welfare 
clause. 

More and more power is being seized by, or surrendered to, the 
federal government under the guise of the alleged general welfare 
clause of Article 1, Section 8, Clause 1 of the Constitution, which 
contaii\s the following language: 

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 — 

This clause is followed by 16 other clauses specifying the various 
powers of Congress— Clause 2, to borrow money; Clause 3, to regulate 
foreign and interstate commerce, etc.; then Clause 18 gives the Con- 
gress power "to make laws necessary to carry into execution the fore- 



Mr. Nilsson was an attorney and a member of the American Bar Assoaahons 
Committee on American Citizenship. This article first appeared m the ABA Journal in 
January 1%1 and was reprinted in The Freeman, July 1961. 

153 



154 / George W. Nilsson 

going powers." This last clause would have been unnecessary if 
Clause 1 gave "general welfare power." 

For 140 years it was generally recognized that the quotation from 
Clause 1 was not a grant of "general welfare power." Many Presidents 
vetoed acts passed by Congress for that reason. 

For instance, president Andrew Jackson, when he vetoed a bill for 
public improvements, stated: 

We are in no danger from violations of the Constitution from 
which encroachments are made upon the personal rights of 

the citizen But against the dangers of unconstitutional acts 

which, instead of menacing the vengeance of offended author- 
ity, proffer local advantages and bring in their train the pa- 
tronage of the government, we are, I fear, not so safe. 

Early in the 1930s some individual "discovered" that the clause 
granted "general welfare power," and more and more this has been 
used to pass legislation based solely on this alleged grant of general 
welfare power. 

The rush to pass "welfare" legislation for various pressure groups 
calls to mind an item in the joke column of Pay Dirt, a mining maga- 
zine published in Phoenix, Arizona (unfortunately, it is more tragic 
than humorous): 

If a politician tries to buy votes with private money, he is a 
dirty crook; but if he tries to buy them with the people's own 
money, he's a great liberal. 

As an illustration of how this alleged "welfare" clause is being 
misused, here is a quotation from a resolution passed June 15, 1959, 
at the conference of mayors held in Los Angeles, requesting additional 
federal funds for urban renewal. It begins as follows: 

WHEREAS, The redevelopment of the blighted and deterio- 
rating sections of American cities is vital to the welfare and 
prosperity of the entire nation 

This, of course, is not a statement of fact but is a self-serving 
declaration, because the deterioration of cities is due to the fcdlure of 
the cities to enforce their building and health regulations, and its cor- 
rection is purely a local matter, lliat statement is just as illogical as to 
say that this article is printed with white ink on black paper. 



Not in the Constitution / 155 

On July 8, 1960, during the Democratic Convention at Los Ange- 
les, the newspapers reported that the mayors of five substantial cities 
had appeared before the Democratic Platform Committee and re- 
quested a statement in the platform recommending the establishment 
in the federal government of a ''Department of Urban Affairs'' which 
would have jurisdiction over "such problems as inadequate housing, 
residential and industrial slums, double shift schools, inefficient mass 
transit systems, congested streets, water shortages, and sewage dis- 
posal" 

Everyone of these problems is purely local. If the local communi- 
ties are unable to take care of them, that tragic conclusion is an ac- 
knowledgment that the people are imable to govern themselves, and 
that the principles stated in the Declaration of Independence, the Con- 
stitution, and the Bill of Rights are incorrect. With such a hypothesis 
no American lawyer will agree. 

When the Constitution was completed and ready to be signed, 
Benjamin Franklin made a speech in the course of which he said: 

I think a General Government necessary for us, and there is 
no form of government, hut what may he a hlessing to the people if 
well administered; and believe further, that this is likely to be 
well administered for a course of years, and can only end in 
despotism, as other forms have done hefore it, when the people shall 
become so corrupted as to need despotic government, heing incapahle 
of any other. 

Rules for Interpretation 

There is a general rule of law that where the statement of a general 
proposition is followed by specific provisions, the latter prevail. This 
rule is stated by James Madison in Federalist Paper No. 41 and by 
Alexander Hamilton in Federalist Paper No. 83. It is appUed by Mr. 
Justice Story to Article I, Section 8 of the Constitution, enumerating 
the powers of Congress, in his book on the Constitution in Sections 
909, 910, and 911. He shows that by Clauses 2 to 17, inclusive, specific 
powers limit Clause 1, referring to general welfare. Section 910 reads 
inpeut: 

910 .. . Nothing is more natural or common than first to use a 
general phrase, and then to qualify it by a recital of particulars. 
But the idea of an enumeration of particulars, which neither 
explain, nor qualify the general meaning, and can have no 



156 / George W. Nilsson 

other effect than to confound and mislead, is an absurdity 
which no one ought to charge on the enlightened authors of 
the Constitution. It would be to charge them either with pre- 
meditated folly or premeditated fraud. 

Another yardstick to be used in determining the meaning of the 
general welfare clause is discussed below; i.e., that the powers dele- 
gated to the United States by the Constitution are few, defined, and 
limited. 

Here let us read a relatively modem statement of that rule: 
Justice Frankfurter, in the opinion in Polish Alliance v. National 
Labor Relations Board, 322 U. S. 643, 650 (1943), said: 

The interpenetrations of modem society have not wiped out 
state lines. It is not for us to make inroads upon our federcd 
system either by indifference to its maintainence or excessive 
regard for the unifying forces of modem technology. Scholas- 
tic reasoning may prove that no activity is isolated within the 
boundaries of a single state, but that cannot justify absorption 
of legislative power by the United States over every activity. 

Climate of Opinion in 1787 

In 1787, when the Constitution was adopted, the colonists had 
been through eight years of war and four years of "a critical period." 
Knowing what led up to the war, cind reading the charges in the 
Declaration of Independence, can anyone for a minute think that the 
colonists generally, and the members of the convention specificaDy, 
would have adopted a constitution which granted general welfare 
powers to the federal government? 

The resistance to the adoption of the Constitution, which will be 
discussed hereafter, shows what the people generaUy felt 

This is sununarized by Albert J. Beveridge in his great biography. 
The Life of John Marshall, in Volume I, Chapter 10, where he writes 
about the convention called in the State of Virginia for the purpose of 
discussing the ratification of the proposed United States Constitution. 
At page 371 he describes the general feeling of the people about a 
strong central government in these words: 

They [who resisted the Constitution] had on their side the 
fears of the people who, as has appeared, looked on aU gov- 
ernment with hostility, and on a great central Government as 



Not in the Constitution / 157 

some distant and monstrous thing, too far away to be within 
their reach, too powerhd to be resisted, too high and exalted 
for the good of the common man, too dangerous to be tried. 
It was, to the masses, something new, vague and awful; some- 
thing to oppress the poor, the weak, the debtor, the settler; 
something to strengthen and enrich the already strong and 
opulent, the merchant, the creditor, the financial interests. 

True, the f)eople had suffered by the loose arrangement 
under which they now lived; but, after all, had not they and 
their "liberties" survived? And surely they would suffer even 
more, they felt, under this stronger power; but would they and 
tfieir "liberties" survive its "oppression"? They thought not. 

Thomas Jefferson made the same point in a letter in 1823: 

I have been blamed for saying that a prevalence of the doctrine 
of consolidation would one day call for reformation or revolu- 
tion. / answer by asking if a single State of the Union would have 
agreed to the Constitution had it given all powers to the General 
Government? If the whole opposition to it did not proceed from the 
jealousy and fear of every State being subjected to the other States 
in matters merely its own? And also is there any reason to 
believe the States more disposed now than then to acquiesce 
to this general surrender of all their rights and powers to a 
consolidated government, one and undivided? [Italics added] 

On February 16, 1783, four years before the Constitutional Con- 
vention, Pelatiah Webster published a pamphlet containing his idea 
of a proposed constitution for the United States. The whole draft can 
be found in The Origin and Growth of the American Constitution, by 
Hannis Taylor, in an appendix beginning at page 529. In paragraph 7 
of his proposed Constitution, Pelatiah Webster says: 

I propose further that the powers of Congress, and all other 
departments acting under them, shaU aU be restricted to such 
matters only of general necessity and utility to all the States as 
cannot come within the jurisdiction of any particular State, or to 
which the authority of any particular State is not competent, so that 
each particular State shaU enjoy aU sovereignty and supreme 
authority to all inteats and purposes, excepting only those 
high authorities and powers by them delegated to Congress 
for the purposes of the general union. [Italics added] 



158 / George W. Nilsson 

Articles of Confederation 

Article VIII of the Articles of Confederation begins with the fol- 
lowing language: "All charges of war and of expences that shall be 
incurred for the common defence and general welfare — " 

James Madison pointed out in a letter to Edmund Pendleton, 
dated January 21, 1792, that the "general welfare clause" had been 
copied from ihe Articles of Confederation, and then said: 

. . . Where it was always understood as nothing more than a 
general caption to specific powers, and it is a fact that it was 
preferred in the new instrument for that very reason as less 
than any other to misconstruction. [See Jefferson and Madison, 
by Adrienne Koch, pp. 128 and 129, and Irving Brant's Madi- 
son, Volume 3, Father of the Constitution, p. 138.] 

Constitutional Convention Debates 

A STommary of the day-by-day proceedings of the Constitutional 
Convention of 1787 is found in Charles Warren's book. The Making of 
the Constitution. 

From a study of the records of the Convention, it will appear that 
from time to time efforts were made by some delegates to have the 
Constitution grant broad general powers to the federal government. 
Each time such proposal was advanced, it was rejected. Beginning on 
page 464 is a discussion of "The Taxing Power and the General Wel- 
fare Clause." At page 474 occurs this statement: 

In Governor Livingston's Committee Report of August 21, 
these words had been used with reference to prior debts, and 
merely described them as having been incurred during the 
late war "for the common defence and general welfcire — " 

On page 475 Mr. Warren says: 

Some words evidently had to be added that would make clear 
the power of Congress to levy taxes /or all the National purposes 
set forth in the grants of power subsequently specified in this section. 
Evidently the Committee selected these words, "to provide for 
the common defence and general welfare," as comprising edl 
the other purposes for which Congress was to be empowered 
to levy and collect taxes. They selected these words as embracing 



Not in the Constitution / 159 

all the subsequent limited grants of power which the Committee of 
Detail in its Report of August 6, had specified as constituting that 
amount of common defence and general welfare which the National 
Government ought to control and as to which ought to have power 
of legislation. In other words, the phrase ''to provide for the 
general welfare" is merely a general description of the amount of 
welfare which was to be accomplished by carrying out those enumer- 
ated and limited powers vested in Congress— and no others. [Italics 
added.] [See also James Madison by Irving Brant, Volume 3, 
Father of the Constitution, Chapter 10, beginning at page 132, 
which is entitled "General Power or Enumeration."] 

Debates in the Various States 

History tells us that in 1787 there was great opposition to the 
adoption of the proposed new Constitution. As a matter of fact, it 
squeaked through by a very few votes in a number of states. For 
instance, Massachusetts 187 to 168, Virginia 89 to 79, and New York 
30 to 27, and then only on condition that a Bill of Rights be added. 

The Federalist Papers were written by Alexander Hamilton, James 
Madison, and John Jay in support of the adoption of the Constitution, 
principally in connection with the debates in New York, where there 
was strong opposition to the adoption of the Constitution. 

In Federalist Paper No. 41, James Madison said (after pointing out 
the objections to the clause "to raise money for the general welfare"): 

But what color can the objection have, when a specification of the 
objects alluded to by these general terms immediately follows and is 
not even separated by a longer pause than a semicolon? If the differ- 
ent parts of the same instrument ought to be so expounded 
as to give meaiung to every part which will bear it, shall one 
point of the same sentence be excluded altogether from a share 
in the meaning; and shall be the more doubtful and indefinite 
terms be retained in their fuU extent, and the clear and precise 
expressions be denied any signification whatsoever? For what 
purpose could the enumeraHon of particular powers be inserted, if 
these and all others were meant to be included in the preceding 
general power? Nothing is more natural or common than fii^t 
to use a general phrase, and then to explain and qualify it by 
a recital of particulars. [Italics added.] 



160 / George W. Nilsson 

Only Limited Powers 

In considering the question of whether this "general welfare" 
clause of Article I, Section 8, Clause I is a grant of power, we must also 
remember that the powers granted to the federal government were 
few and defined. James Madison, in Federalist Paper No. 45, said: 

The powers delegated by the proposed Constitution to the Fed- 
eral Government are few and defined. Those which are to re- 
main to the State governments are numerous and indefinite. 
The former will be exercised principally on external objects, 
as war, peace, negotiations and foreign commerce; with which 
last the power of taxation will, for the most part, be connected. 
The powers reserved to the several States will extend to all the 
objects which, in the ordinary course of affairs, concern the 
lives, liberties and properties of the people and the internal order, 
improvement and prosperity of the State [Italics added.] 

Alexander Hamilton, himself, who argued in the Constitution<d 
Convention for general instead of particular enumeration of powers, 
nevertheless said in Federalist Paper No. 83: 

The plan of the Convention declares that the power of Con- 
gress or, in other words, of the "nationad legislature," shall 
extend to certain enumerated cases. This specification of particu- 
lars evidently excluded all pretension to a general legislative author- 
ity, because an affirmative grant of special powers xvould be absurd, 
as well as useless, if a general authority was intended. [Italics 
added.] 

Since the people were persuaded to adopt the Constitution on the 
basis that the federal government was being given only limited and 
specified powers, how dare anyone, in good conscience, now take the 
position that the words "general welfare" give the federal government 
unlimited power? 

This principle was restated by Franklin D. Roosevelt on March 2, 
1930, while he was Governor of New York, in a speech which was 
entitled "An Address on State Rights" {Collected Papers, Volume I, p. 
569). He said in part: 

The preservation of this home rule by the states is a funda- 
mental necessity if we are to remain a truly united country . . . 



Not in the Constitution / 161 

to bring about government by oligarchy masquerading as de- 
mocracy it is fundamentaUy essential that practicaUy all 
authority and control be centralized in our national govern- 
ment, the individual sovereignty of our states must first be 

destroyed 

We are safe from the danger of any such departure from 
the principles upon which this country was founded just so 
long as the individual home rule of the states is scrupulously 
preserved and fought for whenever they seem in danger. Thus 
it wiD be seen that this home rule is a most important thing — a 
most vital thing if we are to continue along the course on 
which we have so far progressed with such unprecedented 
success. 

Bill of Rights 

In many of the states, the Constitution was adopted only when it 
was accompanied by a resolution demanding that a Bill of Rights be 
added to the Constitution. If the people of the various states were 
satisfied with the Constitution as written, they certainly would not 
have demanded the added protection of the Bill of Rights. 

As pointed out above, certainly no state would have adopted the 
Constitution if the Congress had been given carte blanche to pass any 
law or do anything which it desired or which it felt was for the "gen- 
eral welfare." 

This demand for a Bill of Rights, therefore, should be sufficient to 
prove that the Constitution, and particularly Article I, Section 8, 
Clause I, did not grant general welfare power to the federal govern- 
ment. 

True to his promise, James Madison, in the First Congress, which 
met in 1789, caused to be passed a Bill of Rights containing twelve 
sections, ten of which were adopted and went into effect December 
15, 1791. 

This Bill of Rights, and particularly the Ninth and Tenth Amend- 
ments, are further and conclusive proof that the clause that we are 
discussing did not grant any authority to the federal government to 
pass any laws based on "general welfare powers." 

Statements by Contemporaries 

On December 5, 1791, Secretary of the Treasury Alexander Hamil- 
ton presented to the Congress his "Report on Manufachires. 



162 / George W. Nilsson 

Madison delivered an address in Congress against the Report, in 
which he said in part: 

If Congress can apply money indefinitely to the general wel- 
fare, and are the sole and supreme judges of the general wel- 
fare, they may take the care of religion into their own hands; 
they may establish teachers in every State, coimty and parish, 
and pay them out of the public treasury; they may take into 
their own hands the education of children, establishing in like 
manner schools throughout the Union; they may undertake 
the regulation of all roads, other than post roads. In short, 
everything, from the highest object of State legislation, down 
to the most minute object of policy, would be thrown under 
the power of Congress; for every object I have mentioned 
would admit the application of money, and might be called, 
if Congress pleased, provisions for the general welfare. 

The report was pigeonholed, the first major defeat for one of Ha- 
milton's most cherished policies. (Jefferson and Madison, by Adrienne 
Koch, p. 129.) 

Further on the same question, James Madison, on January 1, 1792, 
in a letter to Henry Lee, Governor of Virginia, said in part: 

What think you of the commentary ... on the term "general 
welfare"? . . . The federal government has been hitherto lim- 
ited to the specified powers, by the Greatest Champions for 
Latitude in expounding those powers — // not only the means, 
but the objects are unlimited, the parchment had better be thrown 
into the fire at once. [Italics added.] 

And in a letter to Edmund Randolph (January 21, 1792), Madison 
said: 

If Congress can do whatever in their discretion can be done by 
money, and will promote the general welfare, the government is no 
longer one possessing enumerated powers, but an indefinite one 
subject to particular exceptions. [Italics added.) {Jefferson and 
Madison, by Adrienne Koch, p. 128.) 

Thomas Jefferson had the same views. He wrote to Albert Gallatin 
in 1817, about the General Welfare Clause, of which he said: 



Not in the Constitution / 163 

You wiU have to leam that an act for internal improvement, 
after passing both houses, was negatived by the President. The 
act was founded, avowedly, on the principle that the phrase 
in the Constitution which authorizes the Congress ''to lay 
taxes, to pay the debts and provide for the general welfare," 
was an extension of the powers specifically enumerated to whatever 
would promote the general welfare; and this, you know, was the 
Federal doctrine. Whereas our tenet ever was, and, indeed, it is 
almost the only landmark which now divides the Federalists 
and the Republicans, that Congress had not unlimited powers 
to provide for the general welfare, hut was restrained to those 
specifically enumerated; and that, as it was never meant that 
they should provide for that welfare but the exercise of the 
enumerated powers, so it could not have meant that they 
should raise money for purposes which the enimieration did 
not place under their action; consequently, that the specifica- 
tion of powers is a limitation on the purposes for which they 
may raise money. [Italics added.] (See Undermining the Consti- 
tution, by Thomas Jcimes Norton, p. 191.) 

Abraham Baldwin, a member of the Constitutional Convention, 
while a member of Congress, on June 17, 1798, said in the Congress: 

... to provide for the common defence and general welfare 
had never been considered as a source of legislative power, 
as it is only a member introduced to limit the other parts of 
the sentence. {Undermining the Constitution, by Thomas James 
Norton, p. 189.) 

Conclusion 

(a) In a book recently pubUshed, analyzing some of the decisions 
of the modem Supreme Court, the writer says: "Enthroned at last, 
were Hamilton's bold nationalistic views. ..." 

To say these modem ideas of "general welfare power" are those 
of Alexander Hamilton is to maUgn him. Alexander Hamilton was a 
great patriot and statesman. His ideas of a new government were far 
different from those embodied in the Constitution, but after the Con- 
stihition was adopted, he faithfully and enthusiasticaUy supported it. 
For instance, he wrote most of The Federalist Papers. 

Even though Alexander Hamilton had espoused such ideas as are 
now ascribed to him, such ideas were not accepted as part of the 



164 / George W. Nilsson 

Constitution as finally adopted and, therefore, must not be used to 
interpret the Constitution. 

Since Alexander Hamilton's views were rejected by the Constitu- 
tional Convention of 1787 (not even being referred to a committee, 
Hannis Taylor, p. 200); since Alexander Hamilton was absent from the 
Convention about one-half of the time, once from June 29 to the mid- 
dle of August 1787, and since his views against the inclusion of a Bill 
of Rights were rejected, the foregoing statement that his views are now 
being accepted is a clear acknowledgment that the spirit and letter of 
the Constitution as written are now being perverted. 

Against this view attention is called to The Federalist Papers which 
are referred to and quoted in this article. It is therefore clear from 
history, common sense, the records of the Constitutional Convention, 
The Federalist Papers, the debates in the state ratification conventions, 
and precedents followed for more than 140 years, that there is no grant 
of general welfare power in the Constitution of the United States. 

(b) While it would seem that such general welfare power is not 
needed, if it should be determined that it is necessary, then the amend- 
ing clause of the Constitution should be followed, as was pointed out 
by George Washington in his Farewell Address: 

If in the opinion of the people the distribution or modification 
of the constitutional powers be in any particular wrong, let it 
be corrected by an amendment in the way which the Constitu- 
tion designates. But let there be no change by usurpation; for 
though this in one instance may be the instrument for good, it 
is the customary weapon by which free governments are destroyed. 
The precedent must always greatly overbalance in permanent 
evil any partial or transient benefit which the use can at einy 
time yield. [Italics added.] 

The dire results of undermining the Constitution were pointed out 
by Daniel Webster in his eulogy of George Washington in 1832, where 
he said in part: 

Other misfortimes may be borne, or their effects overcome 

But who shall reconstruct the fabric of demolished government? 
Who shall rear again the well-proportioned columns of constitutional 
liberty? Who shall frame together the skillful architecture 
which unites national sovereignty with State rights, individual 
security and Public prosperity? 



Not in the Constitution / 165 

(c) Every lawyer when he is admitted to the Bar takes an oath to 
"uphold, defend, and protect the Constitution of the United States." 

Since the Constitution is being ignored, misconstrued, or bypassed 
by legislation, by court decisions, and by executive action, it is time 
that fundamental principles of the Constitution be re-examined, and 
that every citizen, as well as every lawyer, take his place on the battle 
line in a new crusade to re-establish the principles and the spirit of the 
Oeclaration of Independence, the Constitution, and the Bill of Rights. 



The Constitution and Paper Money 
by Clarence B. Carson 



The United States Constitution does not mention paper money 
by that name. Nor does it refer to paper currency or fiat money in 
those words. ^ There is only one direct reference to the origins of what 
we, and they, usually call paper money. It is in the limitations on the 
power of the states in Article I, Section 10. It reads, "No State shall . . . 

emit Bills of Credit " Paper that was intended to circulate as money 

but was not redeemable in gold and silver was technically described 
as bills of credit at that time. The description was (and is) apt. Such 
paper is a device for expanding the credit of the issuer. There is also 
an indirect reference to the practice in the same section of the Constitu- 
tion. It reads, "No State shall . . . make any Thing but gold and silver 
Coin a Tender in Payment of Debts — " Legal tender laws, in practice, 
are an essential expedient for making unredeemable paper circulate 
as money. Except for the one direct and one indirect reference to the 
origin and means for circulating paper money, the Constitution is 
silent on the question. 

With such scant references, then, it might be supposed that the 
makers of the Constitution were only incidentally concerned with the 
dangers of paper money. That was hardly the case. It loomed large in 
the thinking of at least some of the men who were gathered at Phila- 
delphia in 1787 at the Constitutional Convention. There were two 
great objects in the making of a new constitution: one was to provide 
for a more energetic general government; the other was to restrain the 
state governments. Moreover, the two objects had a common motive 
at many points, i.e., to provide a stronger general government which 
could restrain the states. 

Measures to Prevent a Flood of Unbacked Paper Money 

One of the prime reasons for restraining the state governments 
was to prevent their flooding the country with unbacked paper 
money. James Madison, one of the leaders at the convention, declared, 
in an introduction to his notes on the deliberations there, that one of 



This article was originally published in the July 1983 edition of The Freeman. 



M^ 



The Constitution and Paper Money / 167 

the defects they were assembled to remedy was that "In the internal 
administration of the States, a violation of contracts had become famil- 
iar, in the form of depreciated paper made a legal tender.... "^ 
Edmund Randolph, in the introductory remarks preceding the presen- 
tation of the Virginia Plan to the convention, declared that when the 
Articles of Confederation had been drawn "the havoc of paper-money 
had not been foreseen. "^ 

Indeed, as the convention held its sessions, or in the months pre- 
ceding it, state legislatures were under pressure to issue paper money. 
Several had already yielded, or taken the initiative, in issuing the 
unbacked paper. The situation was out of control in Rhode Island, and 
had been for some time. Rhode Island refused to send delegates to the 
convention, and the state's reputation was so bad that the delegates 
there were apparently satisfied to be spared the counsels of her citi- 
zens. Well after the convention had got underway, a motion was made 
to send a letter to New Hampshire, whose delegates were late, urging 
their attendance. John Rutledge of South Carolina rose to oppose the 
motion, arguing that he "could see neither the necessity nor propriety 
of such a measure. They are not unapprized of the meeting, and can 
attend if they choose." And, to clinch his argument, he proposed that 
"Rhode Island might as well be urged to appoint & send deputies."^ 
No one rose in defense of an undertaking of that character. 

The ill repute of Rhode Island derived mainly from that state's 
unrestrained experiments with paper money. Rhode Island not only 
issued paper money freely but also used harsh methods to try to make 
it circulate. The "legislature passed an act declaring that anyone refus- 
ing to take the money at face value would be fined £100 for a first 
offense and would have to pay a similar fine and lose his rights as a 
citizen for a second. "^ When the act was challenged, a court declared 
that it was unconstitutional. Whereupon, the legislature called the 
judges before it, interrogated them, and dismissed several from office. 
The legislature was determined to have its paper circulate. 

The combination of abundant paper money and Draconian mea- 
sures to enforce its acceptance brought trade virtually to a halt in 
Rhode Island. A major American constitutional historian described the 
situation this way: 

The condition of the state during these days was deplorable 
indeed. The merchants shut their shops and joined the crowd 
in the bar-rooms; men lounged in the streets or wandered 
aimlessly about. ... A French traveller who passed through 
Newport about this time gives a dismal picture of the place: 



168 / Clarence B. Carson 

idle men standing with folded arms at the comers of the 
streets; houses falling to ruins; miserable shops offering for 
sale nothing but a few coarse stuffs . . . ; grass growing in the 
streets; windows stuffed with rags; everything announcing 
misery, the triumph of paper money, and the influence of bad 
government. The merchants had closed their stores rather 
3\an take payment in paper; farmers from neighboring states 

did not care to bring their produce Some . . . sought to 

starve the tradesmen into a proper appreciation of the simple 
laws of finance by refusing to bring d\eir produce to market.^ 

But there was more behind the Founders' fears of paper money 
than contemporary doings in Rhode Island or general pressures for 
monetary inflation. The country as a whole had only recently suffered 
the searing aftermath of such an inflation. Much of the War for Inde- 
pendence had been financed with paper money or, more precisely, 
bills of credit. 

A Surge of Continentals 

Even before independence had been declared the Continental 
Congress began to emit bills of credit. These bills carried nothing more 
than a vague promise that they would at some unspecified time in the 
future be redeemed, possibly by the states. In effect, they were fiat 
money, and were never redeemed. As more and more of this Conti- 
nental currency was issued, 1776-1779, it depreciated in value. This 
paper was joined by that of the states which were, if anything, freer 
with their issues than the Congress. In 1777, Congress requested that 
the states cease to print paper money, but the advice was ignored. 
They did as Congress did, not what it said. 

At first, this surge of paper money brought on what apf>eared to 
be a glow of prosperity. As one historian described it, "the country 

was prosperous Paper money seemed to be the 'poor man's friend'; 

to it were ascribed the full employment and the high price of farm 
products that prevailed during the first years of the war. By 1778, for 
example, the farmers of New Jersey were generally well off and rap- 
idly getting out of debt, and farms were selling for twice the price they 
had brought during the period 1765-1775. Trade and commerce were 
likewise stiniulated; despite the curtailment of foreign trade, business- 
men had never been so prosperous."^ 

The pleasant glow did not last long, however. It was tarnished 
first, of course, by the fact that the price of goods people bought began 



The Constitution and Paper Money / 169 

to rise. (People generaUy enjoy the experience of prices for their goods 
rising, but they take a contrary view of paying more for what they 
buy.) Then, as now, some blamed the rise in prices on merchant profi- 
teering. ^ 

As the money in circulation increased and expectations of its being 
redeemed faded, a given amount of money bought less and less. This 
set the stage for speculative buying, holding on to the goods for a 
while, and making a large paper profit on them. There were sporadic 
efforts to control prices as well as widespread efforts to enforce accep- 
tance of the paper money in payment for debts. These efforts, so far 
as they succeeded, succeeded in causing shortages of goods, creditors 
to run from debtors trying to pay them in the depreciated currency, 
and in the onset of suffering. 

Runaway Inflation 

By 1779, the inflation was nearing the nmaway stage. "In August 
1778, a Continental paper dollar was valued (in terms of gold and 
silver) at about twenty-five cents; by the end of 1779, it was worth a 
penny." "Our dollars pass for less this afternoon than they did this 
morning," f>eople began to say.^ George Washington wrote in 1779 
that "a wagon load of money will scarcely purchase a wagon load of 
provisions."^ It v/as widely recognized that the cause was the continu- 
ing <ind ever larger emissions of paper money. Congress resolved to 
issue no more in 1779, but it was all to no avail. Runaway inflation 
was at hand. In 1781, Congress no longer accepted its own paper 
money in payment for debts, and the Continentals ceased to have any 
value at all. 

A good portion of the dangers of paper money had been revealed, 
and reflective people were aware of what had happened. Josiah 
Quincy wrote George Washington "that there never was a paper 
pound, a paper dollar, or a paper promise of any kind, that ever yet 
obtained a general currency but by force or fraud, generally by 
both."io A contemporary historian concluded that the "evils which 
resulted from the legal tender of the depreciated bills of credit" ex- 
tended much beyond the immediate assault upon property. "The iniq- 
uity of the laws," he said, "estranged the minds of many of the citizens 
from the habits and love of justice. . . . Truth, honor, and justice were 
swept away by the overflowing deluge of legal iniquity. . . ."^^ 

But the economic consequences of the inflation did not end with 
the demise of the Continental currency. Instead, it was foUowed by a 
deflation, which was the inevitable result of the decrease in the money 



170 / Clarence B. Carson 

supply. The deflation was not immediately so drastic as might be 
supposed. Gold and silver coins generally replaced paper money in 
1781. Many of these had been out of circulation, in hiding, so long as 
they were threatened by tender law requirements to exchange them 
on a par with the paper money. Once the threat was removed, they 
circulated. The supply of those in hiding had been augmented over 
the years by payments for goods by British troops. Large foreign loans, 
particularly from the French, increased the supply of hard money in 
the United States in 1781 and 1782. A revived trade with the Spanish, 
French, and Dutch brought in coins from many lands as well. In addi- 
tion, Robert Morris's Bai\k of North America provided paper money 
redeemable in precious metals in the early years of the decade. 

The Impact of Depression 

By the middle of the 1780s, however, the deflation was having its 
impact as a depression. Trade had reopened with Britain, and Ameri- 
cans still showed a distinct preference for British imports. That, plus 
the fact that the market for American exports in the British West Indies 
was still closed, resulted in a large imbalance in trade. Americans 
made up the difference either by borrowing or shipping hard money 
to Britain. Prices fell to reflect the declining money supply. Those who 
had gone into debt to buy land at the inflated wartime prices were 
especially hard hit by the decline in the prices of their produce. Fore- 
closures were widespread in 1785-1786. This provided the setting for 
the demands for paper money and other measures to relieve the pres- 
sure of the debts. Some people were clamoring for the hair of the dog 
that had bit them in the first place — monetary inflation — and several 
state legislatures had accommodated them. 

Though there is evidence that the worst of the depression was 
over by 1787, if not in the course of 1786,^^ paper money issues and 
agitations for more were still ongoing when the Constitutional Con- 
vention met in Philadelphia. In any case, those who had absorbed the 
lessons of recent history were very much concerned to do something 
to restrain governments from issuing paper money and forcing it into 
circulation. There were those who met at Philadelphia, too, who took 
the long view of their task. They hoped to erect a system that would 
endure, and to do that they wished to guard against the kind of fiscal 
adventures that produced both unpleasant economic consequences 
and political turmoil. Paper money was reckoned to be one of these. 

The question of granting power to emit bills of credit came up for 
discussion twice in the convention. The first time was on August 16, 



The Constitution and Paper Money / 171 

1787. (The convention had begun its deUberations on May 25 1787 
so it was moving fairly rapidly toward the conclusion when the ques- 
tion arose.) The question was whether or not the United States govern- 
ment should have power to emit bills of credit. Congress had such a 
power under the Articles of Confederation, and most of the powers 
held by Congress under the Articles were introduced in the conven- 
tion to be extended to the new government. 

Constitutional Convention Debates 

Gouvemeur Morris of Pennsylvania "moved to strike out 'and 
emit bills on the credit of the United States.''' That is, he proposed to 
remove the authority for the United States to issue such paper money. 
"If the United States had credit," Morris said, "such bills would be 
unnecessary: if they had not, unjust & useless." His motion was sec- 
onded by Pierce Butler of South Carolina. 

James Madison wondered if it would "not be sufficient to prohibit 
making them a tender? This will remove the temptation to emit them 
with unjust views. And promissory notes in that shape may in some 
emergencies be best." (Madison's distinction between bills of credit 
that may be freely circulated and those whose acceptance is forced by 
tender laws should remind us that paper instruments serving in some 
fashion as money are not at the heart of the problem. After all, private 
bills of exchange had for several centuries been used by tradesmen, 
and these sometimes changed hands much as money does. They are 
what we call negotiable instruments, and the variety of these is large. 
What Madison was getting at more directly, however, was that gov- 
ernments, if they are to borrow money from time to time, may issue 
notes, and these may be negotiable instruments which may take on 
some of the character of money in exchanges. But Madison's objection 
was overcome, as we shall see.) 

Gouvemeur Morris then observed that "striking out the words 
will leave room still for notes of a responsible minister which will do 
all the good without the mischief. The Monied interest will oppose the 
plan of Government, if paper emissions be not prohibited." 

However, Morris had moved beyond his motion, which was for 
removing the power, not specifying a prohibition, and Nathaniel 
Gorham of Massachusetts brought him back to the point. Gorham said 
he "was for striking out, without inserting any prohibition. If the 
words stand they may suggest and lead to the measure." 

Not everyone who spoke, however, favored removing the power. 
George Mason of Virginia "had doubts on the subject. Congress he 



172 / Clarence B. Carson 

thought would not have the power unless it were expressed. Though 
he had a mortal hatred to paper money, yet as he could not foresee all 
emergences [sic], he was unwilling to tie the hands of the legislature. 
He observed that the late war could not have been carried on, had 
such a prohibition existed." 

Nathaniel Gorham tried to reassure Mason and others who might 
have similar doubts by declaring that "The power so far as it will be 
necessary or safe, is involved in that of borrowing." 

Both Positions Argued 

On the other hand, John Francis Mercer of Maryland announced 
that he "was a friend to paper money, though in the present state & 
temper in America, he should neither propose nor approve of such a 
measure. He was consequently opposed to a prohibition of it alto- 
gether. It will stamp suspicion on the Government to deny it a discre- 
tion on this point. It was impolitic edso to excite the opposition of all 
those who were friends to paper money. The people of property 
would be sure to be on the side of the plcm [the Constitution], and it 
was impolitic to purchase their further attachment with the loss of the 
opposite class of Citizens." 

Oliver Elsworth of Connecticut pronounced himself of the oppo- 
site view. He "thought this a favorable moment to shut and bar the 
door against paper money. The mischiefs of the various experiments 
which had been made, were now fresh in the public mind and had 
excited the disgust of all the respectable part of America. By withhold- 
ing the power from the new Government more friends of influence 
would be gained to it than by almost any thing else. Paper money can 
in no case be necessary. Give the Government credit, and other re- 
sources will offer. The power [to emit bills of credit] may do harm, 
never good." 

Edmund Randolph of Virginia still had doubts, for he said that 
"notwithstanding his antipathy to paper money, [he] could not agree 
to strike out the words, as he could not foresee all the occasions which 
might arise." 

James Wilson of Pennsylvania favored removing the power: "It 
will have a most salutary influence on the credit of the United States 
to remove the possibility of paper money. This expedient can never 
succeed whilst its mischiefs are remembered, and as long as it can be 
resorted to, it will be a bar to other resources." 

Pierce Butler "remarked that paper was a legal tender in no coun- 



The Constitution and Paper Money / 173 

try in Europe. He was urgent for disarming the Government of such 
a power. 

George Mason, however, ''was stiU averse to tying the hands of 
the Ugislature altogether. If there was no example in Europe as just 
remarked, it might be observed on the other side, that there was none 
m which the Government was restrained on this head/' His feUow 
delegates forebore to remind Mason that except for Britain there was 
hardly a government in Europe that was restrained on that or any 
other head by a written constitution. 

In any case, the last remarks were made by men vehemently op- 
posed to the power. George Read of Delaware "thought the words, if 
not struck out, would be as alarming as the mark of the Beast in 
Revelations." John Langdon of New Hampshire "had rather reject the 
whole plan [the Constitution] than retain the three words," by which 
he meant "and emit bills." 

Denying the Power to Emit Bills of Credit 

The vote was overwhelmingly in favor of removing the authority 
of the United States to emit bills of credit. The delegates voted by 
states, and nine states voted in favor of the motion while only two 
opposed it. (New York delegates were not in attendance, and Rhode 
Island, of course, sent none.) It is a reasonable inference from the 
discussion that the delegates believed that by voting to strike out the 
words they had removed the power from the government to emit bills 
of credit. George Mason, who opposed the motion, admitted as much. 
Moreover, James Madison explained in a footnote that he voted for it 
when he "became satisfied that striking out the words would not 
disable the Government from the use of public notes as far as they 
could be safe & proper; & would only cut off the pretext for a paper 
currency, and particularly for making the bills a tender for public or 
private debts. "^^ 

The other discussion of paper money took place in connection 
with the powers to be denied to the states in the Constitution. The 
committee report had called for the states to be prohibited to emit bills 
of credit without the consent of the United States Congress. James 
Wilson and Roger Sherman, who was from Connecticut, "moved to 
insert after the words 'coin money' the words 'nor emit bills of credit, 
nor make any thing but gold & silver coin a tender in payment of 
debts'," thus, as they said, "making these prohibitions absolute, in- 
stead of making the measures allowable (as in the XIH article) with the 
consent of the Legislature of the U.S." 



174 / Clarence B. Carson 

Nathaniel Gorham "thought the purpose would be as well secured 
by the provision of article XIQ which makes the consent of the General 
Legislature necessary, and that in that mode, no Opposition would be 
excited; whereas an absolute prohibition of paper money would rouse 
the most desperate opposition from its partizans." 

To the contrary, Roger Sherman "thought this a favorable crisis 
for crushing paper money. If the consent of the Legislature could 
authorise emissions of it, the friends of paper money, would make 
every exertion to get into the Legislature in order to licence it."^^ 

Eight states voted for the absolution prohibition against states 
issuing bills of credit. One voted against it, and the other state whose 
delegation was present was divided. The prohibition, as voted, became 
a part of the Constitution. 

Paper Money Rejected 

Three other points may be appropriate. The first has to do with 
any argim\ent that there might be an implied power for the United 
States government to issue paper money since it is not sf>ecifically 
prohibited in the Constitution. Alexander Hamilton, the man credited 
with advancing the broad construction doctrine, maintained the oppo- 
site view in The Federalist. While he was making a case against the 
adding of a bill of rights, his argument was meant to have general 
validity. He declared that such prohibitions "are not only unnecessary 
in the proposed Constitution but would even be dangerous. They 
would contain various exceptions to powers which are not granted; 
and, on this very account, would afford a colorable pretext to claim 
more than were granted. For why declare that things shall not be done 
which there is no power to do."^^ In short, the government does not 
have all powers not prohibited but only those granted. 

Second, this point was driven home by the 10th Amendment when 
a Bill of Rights was added to the Constitution. It reads, "The powers 
not delegated to the United States by the Constitution, nor prohibited 
by it to the States, are reserved to the States resp>ectively, or to the 
people." The power to emit bills of credit or issue paper money was 
not delegated to the United States. More, it was specificaDy not dele- 
gated after deliberating upon whether to or not. The power Weis pro- 
hibited to the states. The logical conclusion is that such power as there 
may be to emit bills of credit was reserved to the people in their 
private capacities. 

And third, not one word has been added to or subtracted from the 



I 



The Constitution and Paper Money / ITS 

Constitution since that time affecting the power of government to 
emit bills of credit or issue paper money. 

Since the United States is once again in the toils of an ongoing 
monetary inflation, it is my hope that this summary review of the 
experience, words, and deeds of the Founders might shed light on 
some of the vexing questions surrounding it. 



1. Actually this phrase, "fiat money," did not come into use until the 1880s. It might 
have helped the Founders to specify more precisely what they had in mind to prevent, 
but they had no such term. 

2. E. H. Scott, ed.. Journal of the Federal Convention Kept by James Madison (Chicago: 
Albert, Scott and Co., 1893), p. 47. 

3. Ibid., p. 60. 

4. Charles E. Tansill, ed.. Formation of the Union of American States (Washington, 
D.C.: Government Printing Office, 1927), p. 306. 

5. Merrill Jensen, The New Nation ( New York: Vintage Books, 1950), p. 324. 

6. Andrew C. McLaughlin, The Confederation and the Constitution (New York: Collier 
Books, 1%2), pp. 107-08. 

7. John C. Miller, Triumph of Freedom (Boston: Little, Brown, and Co., 1948), p. 438. 

8. Ibid., p. 462. 

9. Quoted in Albert S. BoUes, The Financial History of the United States, vol. I (New 
York: D. Appleton, 18%, 4th ed.), p. 132. 

10. Ibid., p. 139. 

11. Quoted in ibid., pp. 177-78. 

12. See Jensen, op. cit., pp. 247-48. 

13. All the discussion and quotations can be found in Tansill, op cit, pp. 556-57. 
While there is no way to know if the record of the debates on this and other matters is 
complete, nothing has been omitted from Madison's notes. 

14. Ibid., pp. 627-38. The committee on style eventually reduced the number of 
articles in the Constitution to seven, so there is not now an Article Xm, of course. 

15. Alexander Hamilton, et. ai, The Federalist Papers (New Rochelle: N. Y.: Arlington 
House, n. d.), pp. 513-14. 



Judicial Monopoly over the Constitution: 
Jefferson's View 

by Clarence B. Carson 



Do the Federal courts have a monopoly of the interpretation of the 
Constitution? Further, are the judges, in tiie words of Thomas Jeffer- 
son, "the ultimate arbiters of all constitutional questions . . . "7^ There 
is little reason to doubt that the prevailing view in the country would 
give a resoimding affirmative answer to the first question. Tliere are 
dissenters, of course, but so far as they are numerous and widely 
influential, their dissents are to particular decisions or opinions of the 
courts, not to the propriety of the courts making some decision. 

The judges act as if they have a monopoly of the interpretation of 
the Constitution. Members of Congress usually make it clear that they 
believe the opinions of the Federal courts, especiaUy the Supreme 
Court, are determinative. Presidents increasingly leave to the courts 
the questions they may have about the constitutionality of laws that 
come before them. The academic world generally supports this view, 
and many legal scholars make pronouncements that suggest they do 
not think it worthwhile to consider any other view. 

In recent decades, the press, or the media, have mightily assisted 
the courts in maintaining this position. For example, when the courts 
began compelling states to reapportion legislative seats on the basis 
of population, the Washington Post declared that these 

rulings have unquestionably become the law of the land. It is 
not the fimction of Congress to set aside that law, or to thwart 
its operation. The spectacle of Congress trying to use its legis- 
lative power to deny or temporarily nullify constitutional 
rights which the Supreme Court had clearly upheld is such a 
serious encroachment upon the orderly division of powers 
that even extraordinary measures would be justified to defeat 
it. 

There is much controversy, to be sure, over the soundness 
of the Constitution's edict that both houses of the state legisla- 
ture must be apportioned on the basis of population The 



This article appeared in the October 1983 edition of The Freeman 



Judicial Monopoly over the Constitution: Jefferson's Vim / 177 

next Congress will be free, if it wishes, to propose a constitu- 
tional amendment . . . ; however. Congress should not seek to 
shortcircuit judicial decisions.^ 

The editorial assumes that the courts have a monopoly of the 
interpretation of the Constitution. It enjoins the Congress against inter- 
meddling in such matters. It asserts that the decisions are ''the law of 
the land." More, it appears to add the court decisions to the body of 
the Constitution itself, for it holds that these are edicts of the Constitu- 
tion. If it was not commonplace to make this last identification at the 
time, it has become so since, for writers and speakers frequently refer 
to the decisions of the court as if they were an integral part of the 
Constitution itself. In any case, the view prevails that the Federal 
courts have a monopoly of the interpretation of the Constitution. 

It is not equally clear, however, that the view has triumphed that 
the courts are the "ultimate arbiters of all constitutional questions." 
There is at least a shadow of doubt about this, as yet. The Washington 
Post noted that a constitutional amendment could be adopted to 
change the courts' rulings. If so, the courts are not the ultimate arbi- 
ters, or perhaps it would be more accurate to say that they are not the 
penultimate arbiters, since such amendments are extremely rare. By 
my reading of it, the Sixteenth Amendment, adopted in 1913, was the 
last amendment passed to resolve a constitutional question. More im- 
portant, perhaps, there is now strenuous public resistance, at least 
from opinion makers, to reversing a court decision in this way. Nor is 
it clear, given the current mood, how the courts might respond to such 
a direct restraint on their powers. But for now, at least, there appears 
to be the remote possibility of amending the Constitution as an arbiter 
beyond the courts. 

Questioning the Monopoly 

There are several reasons for raising the question of the court's 
monopoly of interpreting the Constihition. The first is to make clear 
that in the version in which it now prevails the monopoly is of recent 
vintage. The second is to emphasize that the Constihition does not 
allot the interpretation of the Constihition to any particular branchof 
government, any special tribunal, or any class or order of n^en. TTie 
main reason, however, is to explore the view of Thomas Jefferson, both 
because of its contrast with the contemporary one and because it was 
more or less in accord with a widely held view for much of the mne- 



178 / Clarence B. Carson 

teenth century. And last, I want to point up some of the incongruities, 
tendencies, infelicities, and dangers of the current view. 

None of this is meant to suggest that the courts do not have a role 
in the interpretation of the Constitution, that they have not always 
claimed and acted upon a role, or that this was unexpected by the 
makers of the Constitution. Chi the contrary, many of the Founders 
anticipated that the courts would have a role in applying the laws and 
establishing the supremacy of laws made in pursuance of the Constitu- 
tion vis a vis the states especially. That they would do so was men- 
tioned a nimiber of times in the Constitutional Convention.^ More- 
over, Hamilton argued in The Federalist, number 78, that it was the 
duty of "courts of justice ... to declare all acts contrary to the manifest 
tenor of the Constitution void. Without this," he said, "all the reserva- 
tions of particular rights or privileges would amount to nothing."* 

But it should be emphasized that the Constitution grants no spe- 
cial powers of interpretation of it to the courts. Specifically, it grants 
no power of judicial review of legislation to the courts. The President 
is granted a power of the review of legislation, and he may veto bills 
on constitutional or other grounds. The Convention considered more 
than once the advisability of having the Supreme Court review legisla- 
tion in conjunction with the executive. The proposal was rejected. 

"Judicial Review" 

In fact, the courts do not "review" acts of Congress to determine 
whether or not they are in accord with the Constitution. Any literal- 
minded person might suppose that is what they do, or have done, by 
the use of the dubious phrase, "judicial review," to describe their 
procedures. In the course of applying the law to particular cases, 
courts sometimes adjudge an act of the legislature to be in conflict with 
the Constitution. They may then refuse to give the force of law to the 
legislative act. That is the basis of the traditional claim of the courts 
to make decisions, binding on themselves, regau'ding the constitution- 
ality of acts. The power is not mentioned in the Constitution. 

Jefferson was the first President to challenge the extent of the 
powers of the federal courts. Indeed, he raised the chaUenge even 
before he attained the highest office in the land and continued to 
express various concerns in letters to individuals long after he retired 
to private life. Also, he was the most outstanding public figure in his 
day to confront directly the question of a judicial monopoly of the 
interpretation of the Constitution. From the confrontations he devel- 
oped a coherent view of the matter. 



Judicial Monopoly over the Constitution: Jefferson's Vim / 179 

Jefferson became embroiled in this question for both broad and 
general as weU as particular considerations. From the outset he was 
a strict constructionist of the Constitution. The first major constitu- 
tional question that came up for him was about the Bank of the United 
States. Jefferson was Secretary of State and President Washington 
asked for the opinions of his heads of departments. He wrote Wash- 
injjton that ours is a government of delegated powers. "The incorpora- 
ztion of a bank/' he said, "and the powers assumed by this bill, have 
not, in my opinion, been delegated to the United States by the Consti- 
tution."5 He went on to explain the case by an examination of the 
powers enumerated and to recommend that the bill be vetoed. 

Jefferson's Concern for Liberty 

Jefferson's insistence on the strict construction of the Constitution 
was based on two broad and enduring concerns which lasted the 
whole of his adult life. One was his commitment to individual liberty. 
On one occasion, he wrote: "I have sworn upon the altar of God 
eternal hostility against every form of tyranny over the mind of man."^ 
As to a definition "of liberty," he explained, "I would say that, in the 
whole plenitude of its extent, it is unobstructed action according to 
our will, but rightful liberty is unobstructed according to our will 
within limits drawn around us by the equal rights of others."^ Jeffer- 
son subscribed to the natural rights theory, holding that man has 
certain God-given rights. Although there are many listings of these 
rights, he thought those most often threatened were "the rights of 
thinking and publishing our thoughts by speaking or writing; the right 
of free commerce; the right of personal freedom."^ 

His second broad concern was to restrain and limit government 
so that people might enjoy their rights. "The natural progress of 
things," he said, "is for liberty to yield and government to gain 
ground."^ It was not safe, he thought, to confide overmuch power in 
government. "I own," Jefferson said, "I am not a friend to a very 
energetic government. It is always oppressive. It places the governors 
indeed more at their ease, at the expense of the people."!^ It was to 
hold governments in their place and restrain them in their activities 
that he was so concerned with strict construction of the Constitution. 

"In questions of power, then," Jefferson declared in his draft of the 
Kentucky Resolution, "let no more be heard of confidence in man but 
bind him down from mischief by the chains of the Constitution/ 
Further, "Our pecuUar security is in the possession of a written Consti- 
tution. Ut us not make it a blank paper by construction. I say the 



180 / Clarence B. Carson 

same as to the opinion of those who consider the grant of the treaty 
making power as boundless. If it is, then we have no Constitution. If 
it has bounds, they can be no others than the definitions of powers 
which that instrument gives."^^ 

Although Jefferson wrote boldly and frequently without equivoca- 
tion, it may be well to point out that he was not by temperament a 
controversialist. He did not like to debate, and avoided public confron- 
tations before crowds. Though he was trained in the law, Jefferson did 
not like the courtroom clashes and only practiced it briefly. He relished 
intellectual exchanges among people of a questing disposition and 
much preferred the search for truth to any contest of wills for domi- 
nance. 

All that is a way of saying that Jefferson did not enjoy political 
controversy, nor was he long a member of Washington's cabinet be- 
fore he was thinking of some way to retire. He wrote James Madison 
that he had devoted more than 20 years to the public service and that 
he thought he ought to be able to leave it with a clear conscience, 
having paid his debt to society, so to speak. He wrote the President 
in 1792 that he looked forward to his early retirement "with the long- 
ing of a wave-worn mariner, who has at length the land in view, and 
shall coimt the days and hours which still lie between me and it."^^ 

As he prepared to step down the next year, he wrote Madison 
that "The motion of my blood no longer keeps time with the tumult 
of the world. It leads me to seek for happiness in the lap and love of 
my family, in the society of my neighbors and my books, in the whole- 
some occupations of my farm and my affairs, in an interest or affection 
in every bud that opens, in every breath that blows around me — "^* 
It was in this frame of mind, so far as we can know, that he left public 
life in 1793, hoping never to return to it. 

Return to Public Office 

But however strong his resolve to stay out, Jefferson was drawn, 
almost inevitably, back into the political maelstrom within two or 
three years. He was a man still in the full vigor of his middling years, 
among the most prominent men in America, and the concern he felt 
for restraining the government by strict construction and thus protect- 
ing individual liberty did not diminish out of office. A political party 
was abuilding in the mid-1790s, the Republiccin Party, Jefferson called 
it, which opposed Hamilton's banking and taxing policies, and Jeffer- 
son became its leader. He was elected Vice President in 1796, but this 



Judicial Monopoly over the Constitution: Jefferson's View / 181 

did not alter the course of the government, which was controlled by 
the Federalists, with John Adams at the head. 

Although there were other issues, Jefferson's concern about how 
the Constitution was being interpreted had been increasing from the 
early 1790s. These concerns provided him with the particulars of the 
case. As already noted, Jefferson opposed Hamilton's broad construc- 
tion of the Constitution to justify the chartering of the bank. Indeed, 
that Hamilton won Washington to his side may have precipitated 
Jefferson's resignation from the cabinet as early as he thought he de- 
cently could. 

The manner of the imposition of the whiskey and other similar 
taxes in the course of the 1790s disturbed Jefferson just as much. The 
Constitution required that direct taxes be apportioned among the 
states on the basis of their populations. To Jefferson, and to many 
others, these were clearly direct taxes. But Hamilton and the Federal- 
ists called them excises, thus evading the constitutional requirement. 
That aside, however, Jefferson was bothered by the intrusion of reve- 
nue agents in the af f<iirs of citizens in order to collect these taxes. 

The Alien and Sedition Acts 

But it was the Alien and Sedition Acts, passed in 1798, that really 
aroused Republicans in general and Jefferson in particular. It certainly 
appeared that the Federalists were bent on riding roughshod over 
constitutional limitations, to say nothing of what they were prepared 
to do to their Republican opponents. The Alien Acts were bad enough, 
particularly for their ignoring due process, required by the Fifth 
Amendment, in authorizing the President to deport aliens without 
even the semblance of a trial. Good John Adams, however, was no 
enemy to liberty, or even aliens, and he never exercised the authority. 

The Sedition Act, however, was another matter. It prohibited peo- 
ple to defame or slander high government officials either in speech or 
in writing. Jefferson drew up what became known as the Kentucky 
Resolution in which he declared that these acts violated constitutional 
prohibitions, and he caUed on other states to join in opposmg it. Madi- 
son foUowed suit in a somewhat milder Virginia Resolution. 

The Sedition Act was no idle threat to Republicans and particu- 
larly newspaper publishers. Government attorneys and the courts De^ 
gan to bring them to trial and punish them for their alleged ^edm^^ 
acts. Only RepubUcans, it should be added, ^^^^P^^^^^^^^^^^^^ 
fersonian suspicion of the courts dates from the late 1790s, if not be- 



182 / Clarence B. Carson 

fore. Indeed, judges did seem to try such cases with inordinate zeal, 
charging juries sometimes in such a way as to assure guilty verdicts, 
and meting out tough sentences. Even Supreme Court justices who, 
in those days, rode circuit and tried cases, were high handed in con- 
ducting their courts. 

By the time he became President in 1801, then, Jefferson had incen- 
tive aplenty for limiting the government by a strict construction of the 
Constitution. He had a theory for how it could be done and was 
determined to do it. Meanwhile, another development had occurred 
which aroused his fears about a judicial monopoly of the interpreta- 
tion of the Constitution. Before leaving office, the Federalists had cre- 
ated new courts, new judgeships, positions for government attorneys, 
and the like. The outgoing President Adams filled these positions with 
Federalists, so that Federalists were solidly ensconced in the courts 
with lifetime appointments. The stage was set for a confrontation be- 
tween the Jeffersonians and the courts, if ever there was to be one. 

But Jefferson was not a man inclined to engage in confrontations. 
He was quiet and thoughtful, even philosophical, in demeanor, not 
given to attempting to ride roughshod over cmyone. He always pro- 
fessed to respect the independence of the other branches in dieir 
proper spheres, and there is evidence to support his claims. He simply 
acted with the powers of the President and encouraged Congress to 
act with its powers so as to prevent any monopoly by the courts over 
the Constitution. He took care, generally, to see that if there were a 
confrontation it would be instituted by one of the other branches, not 
by himself. Nor did he engage in public declamations on the question, 
as a rule; most of what we know of his views comes from private 
correspondence — and what may be deduced from his acts. 

First, do the courts have a monopoly of the interpretation of the 
Constitution? Jefferson did not equivocate on his answer. He an- 
swered the question most emphatically in a letter written in 1820, long 
after he had left office. "You seem to consider the judges as the ulti- 
mate arbiters of all constitutional questions," he wrote to a correspon- 
dent. But that, Jefferson said, is "a very dangerous doctrine indeed and 

one which would place us under the despotism of an oligarchy 

The constitution has erected no such single tribunal, knowing that, to 
whatever hands confided, with the corruptions of time and party its 
members would become despots."^^ 

Who Decides? 

Who, then, does decide constitutioncd questions? Let us leave to 
the side for the moment how they may be ultimately decided, so far 



Judicial Monopoly over the Constitution: Jefferson's View / 183 

as they ever are, in order to get to Jefferson's intermediate answer. So 
far as the Federal government is concerned, each of the branches— and 
in the Congress, each of the houses— decides for itself in matters that 
come before them. "The constihition has," Jefferson pointed out, 
"wisely made all the departments co-equal and co-sovereign within 
themselves."^^ He explained how it works this way: "Questions of 
property, of character, and of crime being ascribed to the judges 
through a definite course of legal proceeding, laws involving such 
questions belong of course to them, and as they decide on them ulti- 
mately and without appeal, they of course decide /or themselves. The 
constitutional validity of the law or laws again prescribing executive 
action and to be administered by that branch ultimately and without 

appeal, the executive must decide for themselves also So also as to 

laws governing the proceedings of the legislature, that body must 
judge for itself the constitutionality of the law and equally without 
appeal or control from its co-ordinate branches. And, in general, that 
branch which is to act ultimately and without appeal on any law is the 
rightful expositor of the validity of the law, uncontrolled by the opin- 
ions of the other co-ordinate authorities. "^^ 

On first reading of the above it may appear that Jefferson has 
evaded the issue or begged the question. It may be given that appear- 
ance, I think, because he used the qualifying phrase, "without appeal," 
and that may have a legal ring to it, suggesting an appeal to the 
judiciary. But that was not his meaning, or not his only meaning. Of 
course, in a case taken and decided in a lower court there may be an 
appeal to a higher court. But Jefferson was referring to something 
much broader than this. Many of the powers of the government are 
jointiy exercised by or intertwined with other branches. In that case, 
usuaUy there is no appeal from a negative decision of one of the other 
branches. For example, if the Senate refuses to approve an appoint- 
ment of the President, there is no appeal, and the decision is final. 

Checks and Balances 

In order to understand Jefferson's view it is necessary to view it 
in the context of the constitutional provision of checks and balances 
and the separation and partial independence of powers, not in the 
judicial framework to which we have become accustomed. The powers 
of government are divided among the branches, Jefferson was main- 
taining, and with that division goes the power of determmmg the 
constitutionality of what they do. To put it in its strongest form, none 
of the branches may force the others to act on its view of the Consfatu- 



184 / Clarence B. Carson 

tion. Jefferson said, "If the legislature fails to pass laws for a census . . . 
; if the President fails to supply the place of a judge . . . , the judges 

cannot force [them] "^^ 

How these checks and balances work, how each branch interpret- 
ing the Constitution for itself limits and restrains government, may 
best be illustrated with actual examples. When Jefferson became Presi- 
dent, he pardoned those who had been convicted under the Sedition 
Act. He explained his action in letters to Abigail Adams: "I discharged 
every person under punishment or prosecution under the Sedition 
Law because I considered, and now consider, that law to be a nul- 
lity The judges, believing the law constitutional, had a right to pass 

a sentence of fine and imprisonment, because the power was placed 
in their hands by the Constitution. But the executive, believing the law 
to be imconstitutional, was bound to remit the execution of it, because 
that power has been confided to them by the Constitution. That instru- 
ment meant that its co-ordinate branches should be checks on one 
another. "^^ 

Marbury vs. Madison 

Chief Justice John Marshall also wisely avoided a confrontation 
with the President by his opinion in the celebrated case of Marbury vs. 
Madison. William Marbury had been appointed justice of the peace by 
President Adams, but the appointment was so late that the commis- 
sion was not delivered. James Madison, the incoming Secretary of 
State, refused to deliver it under orders from Jefferson. Marbury sued 
in the Supreme Court for a writ of mandamus that would force Madi- 
son to deliver the commission. 

Marshall held that Marbury was indeed entitled to a commission 
and force was appropriate, but, unfortunately, by his reading of the 
Constitution, he had applied to the wrong court. Tlius, p)etition denied, 
and no mandamus was issued. It was just as well, too, for the general 
view has been that Jefferson would not have honored it, and the court 
would have been powerless to enforce it. By Jefferson's interpretation 
of the Constitution the court could no more force him to act than he 
could force it to render a decision in accord with his wishes. 

Marshall got his opportunity to try force on the President again 
in the Burr trial for treason in 1807. He issued a subpoena, on motion 
of defense, for Jefferson to appear in court. Jefferson declined, though 
he did send some papers, and gave the court a lecture on the separa- 
tion of powers.20 Marshall took no further action. 



Judicial Monopoly over the Constitution: Jefferson's Vim / 185 

But before either of these cases came before the courts. Congress 
had begun to move to rein in and restrain the courts. In 1802 it re- 
pealed the Judiciary Act of 1801, taking away a number of new offices. 
Shortly after, it passed a new act rehiming Supreme Court justices to 
riding circuit and restricting the Supreme Court to one session each 
year. Then, gently prodded by Jefferson, it zeroed in on the most 
notorious of the judges. 

District judge John Pickering, ill famed for his drunken, if not 
insane, carrying on in court, was impeached by the House and re- 
moved from office by the Senate. Supreme Court justice Samuel Chase 
was impeached by the House for his intemperate behavior in court, 
but the Senate failed of the two-thirds majority required for conviction. 
Jefferson was disappointed and thereafter maintained that impeach- 
ment was very nearly an empty threat. That was surely an overly 
pessimistic assessment, however, for it appears that the behavior of 
judges improved perceptibly for quite a while after the Pickering and 
Chase cases. 

The broader point is this. As Jefferson held, the House of Repre- 
sentatives, the Senate, and the President, as well as the courts, are 
empowered to act in ways that depend upon interpreting the Constitu- 
tion. They take oaths to uphold and defend the Constitution, and if its 
meaning could only be divined by the courts this would amount to 
nothing more than oaths to obey the courts. Happily, however, the 
Constitution is written in English, and the other branches have powers 
that enable them to act upon their own interpretations and even re- 
strain the courts if they get out of line. 

All legislative power is vested in the Congress and executive 
power in the President. If the courts invade the legislative domain of 
the Congress by their constructions of the Constitution, as they have 
most certainly done in recent years. Congress has the power to set 
them straight. The Constitution authorizes Congress to define and 
limit (or expand) the appellate jurisdiction of the courts. 

The President can refuse to enforce court orders he believes in 
conflict with the Constihition. (The courts have no enforcement ma- 
chinery, i. e., prosecuting attorneys, police, armies, prisons, or electric 
chairs, of their own.) As Andrew Jackson is alleged to have said, "John 
Marshall has made his decision; now let him enforce it." 

Judges can be impeached and removed from office, though law- 
yers raU impotently that they can only be removed for mdictable 
crimes. It happens that when the Senate acts as such a high court, there 
is no appeal from its decisions. As a last resort, Congress can rehise 



186 / Clarence B. Carson 

to appropriate money for the operation of the courts. In short, not only 
can the other branches interpret the Constitution, but they are also in 
as good position as the courts to make their interpretations stick. 

A System of Limited Government 

What I have been describing is a system of checks and balances, a 
system in which no branch has a monopoly of interpretation, in which 
any branch with a will can work to restrain the others. It is a system 
of limited government, limited toward the branch which most strictly 
construes the Constitution. Jefferson hoped that clashes between the 
branches over the Constitution could be avoided. To that end, he 
recommended that each branch refrain from approaching too near to 
the bounds of its powers. That would tend to limit government even 
more and give room for the liberty of the people, which he thought 
was the greater end of government. 

Jefferson did not believe, however, that all the branches of govern- 
ment together are the final arbiters of constitutionality. Not even the 
Federal and state governments, to whom he would certainly provide 
some place, are the ultimate arbiters. Government is too dangerous, 
too bent on aggrandizing its own powers, to leave to it or them the 
final decision. "I know of no safe depository of the ultimate powers 
of the society but the people themselves," he said.^^ In the final analy- 
sis, he thought, that was where the power of interpreting the Constitu- 
tion resides. The people may turn out members of Congress who 
displease them on constitutional issues. They can refuse the re-election 
of a President. If all else fails, or if the branches of government Ccinnot 
agree, the constitution can be amended by the consensual process 
prescribed. 

There is great danger, Jefferson thought, in a court monopoly of 
the interpretation of the Constitution. Any monopoly would be fear- 
some, but that of the courts would be the most dangerous. The mem- 
bers of the court are appointed for life, are difficult to remove, and 
hold perilous power over the populace. Although Jefferson's nose was 
undoubtedly finely tuned to sniff the threat of despotism in every 
tainted breeze, he meant no exaggeration when he said that it would 
be an oligarchic despotism. 

1. Edward Dumbauld, ed.. The Political Writings of Thomas Jefferson (New York: 
Liberal Arts Press, 1955), p. 153. 

2. Quoted in L. Brent Bozell, The Warren Revolution (New Rochelle, N. Y.: Arlington 
House, 1966), p. HI. 



Judicial Monopoly over the Constitution: Jefferson's View / 187 

3. For example, see Elbridge Gerry's remarks in Charles C. TansiU, ed.. Formation 
of the Union of the American States (Washington D.C.: Government Printing Office, 1927), 
p. 147. But there were objections to this view as well; see pp. 548-49. 

4. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New 
Rochelle, N. Y.: Arlington House, n.d.), p. 466. 

5. Henry S. Commager, ed.. Documents of American History, vol. I (New York: 
Appleton-Century-Crofts, 1%2), p. 159. 

6. Dumbauld, op. cit., p. 76. 

7. Ibid., p. 55. 

8. Ibid., p. xxvi. 

9. Adrienne Koch and William Peden, ed., The Life and Selected Writings of Thomas 
Jefferson (New York: Modem Library, 1944), p. 447. 

10. Ibid., p. 440. 

11. Dumbauld, op. cit., p. 161. 

12. Koch and Peden, op. cit., p. 573. 

13. Ibid., p. 520. 

14. Wid., p. 523. 

15. Dumbauld, op. cit., p. 153. 

16. Wid. 

17. Ibid., p. 151. Emphasis by Jefferson. 

18. Ibid., p. 153. 

19. Ibid., p. 154. 

20. See Claude C. Bowers, Jefferson in Power (Boston: Houghton Mifflin, 1964), p. 

410. 

21. Dumbauld, op. cit., p. 154. 



The General Welfare 
by Clarence B. Carson 



"I wish the Constihition was not so vague," one of my daughters 
said. My first reaction to that was to deny that the document is particu- 
larly vague or, for that matter, obscure. "Why," she persisted, "does 
it contain a clause on the general welfare?" Actually, her question was 
a good one, and it gave point to her observation on the vagueness of 
the Constitution, if, as I think, I know where she was coming from, as 
they say. She is a college sophomore and is taking courses in American 
history and government, among others. Undoubtedly, she had hoped 
to find that tihe Constitution would be a bulwark against the claims of 
the welfare state. Yet, after studying it in her classes, she has been 
struck by its ambiguity and what appears to be the slipperiness of its 
phrases. It is my hope that what follows may throw some light on the 
troublesome phrase, both for sophomores and the rest of us as well. 

The phrase, "general welfare," occurs twice in the Constitution. It 
occurs first in the Preanible, which announces that one of the purposes 
of the Constitution is to "promote the general Welfare." Since this is a 
statement of purpose, not a grant of power, it need not detain us 
beyond noting that it is there. The other use of the phrcise, however, 
is much more sigiuficant. It is contained in the first sentence of Article 
I, Section 8, which lists the powers of Congress. Equally important, it 
is used in connection with the grant of the power of taxation, which, 
then as now, was reckoned to be an essential power of government. 
The relevant clause reads, "The Congress shall have Power to lay and 
collect Taxes, Duties, Imposts and Excises, to pay the I>ebts and pro- 
vide for the common Defence and general Welfare of the United 
States. . . ." 

Clearly, Congress is empowered to levy taxes to provide for the 
general welfare. Viewed from the present perspective, this gives color, 
at least, to the idea that the welfare state has some constitutional 
foundation. 

But that is to look at the matter wrong-end-to. What counts, in the 
first place, is what the words meant when they were used. "Welfare" 
is commonly used today to refer to or denote govemn\ent programs 



This article was originally published in the August 1983 issue of The Freeman. 



The General Welfare / 189 

to provide for the poor, the disabled, those without work, and those 
reckoned to be without sufficient means to provide for their basic 
wants. It is so used in such phrases as, welfare state, welfare programs, 
welfare worker, and welfare recipient. Until quite recently it was used 
in that way in the name of a cabinet rank department, namely, the 
Department of Health, Education and Welfare. This usage, however, 
was unknown to the makers of the Constitution. If they had intended 
to authorize what are nowadays called welfare programs, they would 
not have used the word, "welfare,'' to express that intent. It is the other 
way around: welfare programs bear that name to give the color of 
constitutionality to them. But let that wait for a bit. 

What Americans began calling welfare programs in the late 1930s, 
or thereabouts, the Founders would have known by the name of ''poor 
relief/' so far as they were fcuniliar with it at all. In England, tax 
supported relief of the poor was required under the poor laws, more 
specifically, the Elizabethan Poor Law, during the American colonial 
period. Poor laws were passed in the wake of the Reformation, the 
suppression of monasteries, and the confiscation of church lands. The 
destitute had received aid before that time from organizations within 
the church, but when much of the wealth of the church was taken 
away, the state took over last resort poor relief. Actually, Parliament 
simply required that local communities tax for and provide such relief. 

A similar system took shape in the American colonies. In New 
England, relief for the poor was a charge upon the villages and towns, 
paid for from locally levied tax monies. Where the Anglican Church 
was established, poor relief was a duty of the parishes, and parishion- 
ers were taxed to pay for it. 

Poor relief was hardly a sumptuous affair in the colonies, or, for 
that matter, in nineteenth-century America. Unless the person were 
totally incapacitated, more attention was given to reforming the poor, 
i.e., getting them to become productive and self-supporting, than help- 
ing them to fare weU. For example, "The vestries in Virginia disposed 
of the able bodied poor, destitute orphans, and the iUegitimate chil- 
dren of indentured servants by binding them to masters as apprentices 
or servants."^ Workhouses were set up in some places for those who 
had no visible means of support. In New England, "The town pro- 
vided materials and tools with which the inmates were required to 
earn a Uving."^ The incapacitated were sometimes provided alms- 
houses or otherwise given some minimal aid. 

No one at the time of the writing of the Constitution would have 
associated the life of the poor dependent upon pubUc rehef with tne 
word welfare. "Welfare," in common usage for centuries, stems from 



190 / Clarence B. Carson 

the roots "well" and "fare," and means basically, according to my 
dictionary, a "state of faring well; well-being." Synonyms are: "pros- 
perity, success, happiness, weal." No sensible person would have con- 
fused poor relief with prosperity, success, or even faring well. Indeed, 
it was in every respect the opposite. 

So far as my researches have revealed, the word, "welfare," began 
to take on a new connotation aroimd the beginning of the twentieth 
century. The phrase, "welfare-manager," appeared in print in England 
in 1904. Some factories, it seems, were employing people to assist 
workers in improving their well-being. Thus, the London Daily Express 
declared in 1916 that "Welfare work tends to improve the condition 
of life for women and girls employed in factories."^ However, the 
word still had no clear connection with relief for the poor. 

That connection was made in the United States in the course of the 
routinization, regularization, and bureaucratization of government aid 
programs in the 1930s. The key piece of legislation for making this 
change was the Social Security Act, passed in 1935. There is reason to 
believe that the adoption of the word "welfare" in place of relief was 
a more or less deliberate action. It served a highly important political 
and constitutional purpose. Much of the early New Deal legislation 
was tied up in court tests by 1934. As it turned out, the central pieces 
of New Deal legislation were nullified in the next year or so. New 
Dealers were casting about frantically for ways to overcome the consti- 
tutional impasse. 

Secretary of Labor Frances Perkins remarked to Supreme Court 
Justice Harlan Stone, in 1934, that she was worried that the social 
security system they were devising might not pass the constitutional- 
ity test. "The taxing power of the Federal Government, my dear," 
Stone replied; "the taxing power is sufficient for everything you want 
and need." This pointed clearly toward the general welfare phrase in 
the clause of the Constitution authorizing taxation. In the same year 
Professor E. S. Corwin, a recognized constitutional authority, main- 
tained that the taxing and spending authority of Congress was un- 
checked by the Constitution. Another law professor declared, after the 
Supreme Court nullified crucial portions of the NRA: "The waters 
dammed by judicial restriction on the commerce power may break out 
in unwelcome fields of taxing and spending. What seems a great vic- 
tory against national regulation may prove to be a Pyrrhic one."* 

Indeed, it did. The Social Security Act leaned heavily upon the 
general welfare phrase in the Constitution. It opens with the claim 
that it is "An Act to provide for the general welfare by establishing a 
system of Federal old-age benefits, and by enabling the several States 



The General Welfare / 191 

to make more adequate provision for aged persons, blind persons 
dependent and crippled children, maternal and child welfare, pubHc 
health, and the administration of their unemployment compensation 
laws "5 

Social Security Involves a Bundle of Programs 

Since many people may not think of Social Security as a welfare 
measure, it may be well to emphasize that, however old-age benefits— 
the phrase then used to describe Social Security payments to the re- 
tired — should be classified, there was a bundle of programs provided 
in the act which formed the core of the welfare programs. The bundle 
included such things as pensions to those who had not contributed to 
Social Security and aid to dependent children, among others. 

Moreover, these programs were administered in the states by 
what generally became known as welfare departments in the 1940s 
and 1950s. Frequently, they were formally titled Department of Public 
Welfare (DPW), and those who administered the programs were re- 
ferred to as welfare workers. In 1953, an assortment of these programs 
were moved into the new cabinet ranked Department of Health, Edu- 
cation and Welfare. In this fashion, the shift from referring to these 
programs as poor relief to public welfare was completed, and the claim 
that such government activities were sanctioned by the reference in 
the Constitution to general welfare was linguistically ratified after the 
fact. 

The main point, of course, is that the Founders could not have 
intended to include what they knew as poor relief in their reference 
to the general welfare. Poor relief was the last resort of local govern- 
ments to provide minimal means for survival; it was at the opposite 
end of the scale from faring well. Beyond that, the evidence presented 
here points toward the conclusion that as late as the early 1930s it took 
a great deal of straiiung to make the begiimings of an identification 
between relief and welfare. 

But there is much more involved in this claim that the federal 
government is constitutionally authorized to provide for the general 
welfare than such programs as have been identified, however spuri- 
ously, with welfare. The whole concatenation of redistributionist and 
interventionist programs which comprise the welfare state find their 
main justification under it. Thus, we are brought back to the consider- 
ation of the claim regardless of what meanings may be attached to the 
word welfare. 

The crucial question then becomes whether or not there is a grant 



192 / Clarence B. Carson 

of power in the Constitution to provide for the general welfare. There 
are at least two approaches that can be taken to answering this ques- 
tion. One is to try to discern the meaning of the phrase, "general 
welfare," in the clause in which it occurs. The other is to see the clause 
within the context of the whole Constitution. 

The Taxing Power 

First, then, let us look at the clause again, which reads: "The Con- 
gress shall have Power to lay and collect Taxes, Duties, Imposts and 
Excises, to pay the Debts and provide for the common Defence and 
general Welfare of the United States — " One thing is certain: Con- 
gress is authorized to levy taxes. Is it authorized to do anything else? 
My view is that it is not. What follows the word "Excises" is restrictive 
rather than being a grant of powers, restrictive of the taxing power. 
The operative words, in my reading of the relevant parts, would be 
that taxes are to be levied to "provide for the common Defence and 
general Welfare of the United States." 

What was being guarded against by these restrictions was the 
levying of taxes on the whole people to pay for some benefit to some 
locale, state, or region of the country. For example, by this reading, 
taxes could not be properly levied to pay for an undertaking such as 
the Tennessee Valley Authority. There was a definite interest in the 
Constitutional Convention to restrict such practices. At one point, Ben- 
jamin Franklin proposed that the general government be given "a 
power to provide for cutting canals where deemed necessary." Roger 
Sherman "objected. The expence in such cases will fall on the U. States, 
and the benefit accrue to the places where the canals may be cut."^ 
Franklin's motion was defeated by a vote of eight states to three. 
is aut let me hasten to add that there is no way to make certain that 
my interpretation of the words as being restrictive is correct simply 
by reading the clause and selecting emphases within it. Furthermore, 
even if it were restrictive to the general welfare, there might still remain 
a potentially broad power to provide for the general welfare. After all, 
in ordinary usage the granting of the power to pay for something 
tacitly authorizes the buying of it. For example, if I tell my daughter 
that she may write checks to pay for her college expenses, it is a logical 
inference that I am authorizing such expenses. The same might be 
expected to apply to statements in the Constitution. To see that they 
do not it is necessary to place the clause thus far examined in the 
context of the whole Constitution. Phrases and clauses that may ap- 



The General Welfare / 193 

pear to be vague and general when considered in isolation take on 
much more precision when viewed from the angle of the whole. 

A Limited Govermnent 

The Constitution of the United States is no ordinary set of state- 
ments or document. It is, if not unique, a very special case among 
documents. It describes the form for and grants power to a limited 
government. There are no omnibus grants of power in the Constitu- 
tion; every power granted is limited in one or more and usually sev- 
eral ways (though not necessarily in the clause that grants it). It does 
not grant the powers of goveniment generally to the United States 
government. 

What makes the Constitution almost unique is that the govern- 
ment it authorizes has only such powers as are granted to it. Thus, 
what can be inferred from ordinary speech or, for that matter, the 
general run of legal documents, is no guide in construing the provi- 
sions of the Constitution. It is concerned with granting and limiting 
power in an arrangement for which there are few, if any, parallels in 
ordinary life situations. 

It is contrary to the whole tenor of the Constitution that the power 
to provide for the general welfare should have been granted in the 
sentence authorizing tcixation. The men who drew the Constitution 
did not assume that by granting the power to tax in order to pay debts 
that they had authorized indebtedness. On the contrary, the very next 
sentence authorizes Congress 'To borrow Money on the credit of the 
United States." Nor did they assume that by authorizing taxation to 
pay for the common defense that they had granted the power to bring 
into being a military establishment. On the contrary, again, there is a 
list of powers to accomplish this purpose granted to Congress: 

To define and punish Piracies and Felonies committed on the 
high Seas and Offences 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 . . . ; 

To provide and maintain a Navy; 

To make Rules for the Government and Regulation of the 
land and naval Forces — 

If the power to provide for the common defense had been granted 
in the taxktg power, each of these powers would have been imphed 



194 / Clarence B. Carson 

by it. Such an enumeration of powers would have been redundant. 
Redundancies are commonplace, of course, in ordinary legal docu- 
ments nowadays, but the Constitution is remarkably free of them. It 
is spare, lean, and once stated, repetition of a position is avoided. 

Indeed, the powers which the Founders reckoned necessary to the 
general welfare of the United States are enumerated along with those 
mentioned above. Among them are the power of Congress to enact 
uniform laws on bankruptcies, to coin money, to fix standards of 
weights and measures, to establish post offices and post roads, to give 
authors and inventors exclusive right for a time to their writings and 
discoveries, and the like. Undoubtedly, they considered all the powers 
granted useful or necessary to the general welfare, including the pow- 
ers of taxation and those for a military establishment. But my point is 
that the powers granted were enumerated, and those not so enumer- 
ated were reserved to the states or to the people. 

That did not keep some from claiming or asserting that some 
object they wanted to achieve by government was provided for in the 
phrases of the taxation clause, even in the early years of the Republic. 
The issue came up for President Madison in 1817, when he was pre- 
sented with a bill for making internal improvements such as roads and 
canals. He vetoed it on constitutional grounds. 

Madison's Interpretation of Enumerated Powers 

Madison said, in part, ''The legislative powers vested in Congress 
are specified and enumerated in the eighth section of the first article 
of the Constitution, and it does not appear that the power proposed 
to be exercised by the bill is among the enumerated powers " Re- 
garding the general welfare phrase specifically, he said: "To refer the 
power in question to the clause 'to provide for the common defense 
and general welfare' would be contrary to the established cind consis- 
tent rules of interpretation, as rendering the special and careful enu- 
meration of powers which follow the clause nugatory and improper. 
Such a view of the Constitution would have the effect of giving to 
Congress a general power of legislation instead of the defined and 
limited one hitherto understood to belong to them "^ 

President Monroe echoed Madison's views, and added some of 
his own, in vetoing a bill for maintaining the Cumberland Road in 
1822. He denied that Congress had the power to do this. "If the power 
exist," he said, "it must be either because it has been specifically 
granted to the United States or that it is incidental to some power 
which has been granted. If we examine the specific grants of power 



The General Welfare / 195 

we do not find it among them, nor is it incidental to any power which 
has been specifically granted." Among those from which he could not 
trace the power, he declared, was the clause "to pay the debts and 
provide for the common defense and general welfare/'^ In an adden- 
dum to his veto message, he included this thought: "Have Congress a 
right to raise and appropriate the money to any and to every purpose 
according to their will and pleasure? They certainly have not. The 
Government of the United States is a limited Government, instituted 
for great national purposes, and for those only."^ 

In sum, then, it is most unlikely that the makers of the Constitution 
would have chosen the phrase, "general welfare," to authorize the 
federal government to provide what they understood to be poor relief. 
It would have violated both their understanding of the meaning of 
words and the common practice as to what level of government 
should provide the relief. On the contrary, it appears that relief came 
to be called welfare to give it a semblance of constitutionality. Indeed, 
close analysis within the sentence and the context of the Constitution 
points to the conclusion that the reference "to provide for the general 
welfare" was the restriction of the taxing power rather than a separate 
grant of power. 

In short, no powers were enumerated granting authority to the 
federal government either to enact relief measures or to erect what has 
come to be called a welfare state. Nor is the language of the Constitu- 
tion especially vague or carelessly general when it is viewed within 
the context of the whole document. It only appears to be so when 
wrenched out of context and construed to cover purposes not in- 
tended. 



1. Curtis P. Nettels, The Roots of American Civilization (New York: Appleton-Cen- 
tury-Crofts, 1963), p. 463. 

2. Ibid., p. 462. 

3. This information comes from the Oxford English Dictionary. 

4. See Arthur M. Schlesinger, Jr., The Politics of Upheaval (Boston: Houghton Mifflin, 
1960), pp. 398-99. , ^ , 

5. Henry S. Commager, Documents of American History, vol. H (New York: Apple- 
ton-Century-Crofts, 1%2), p. 326. ItaHcs added. 

6. Charles C. TansiU, ed.. Formation of the Union of American States (Washmgton, 
D.C: Government Printing Office, 1927), p. 724. 

7. James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, 
vol. n (New York: Bureau of National Literature, 1897), pp. 569-70. 

8. Ibid., p. 712. 

9. Ibid., p. 736. 



V. THE FOLLIES OF DEMOCRACY 



Not So Democratic: The Caution of the Framers 
by M. E. Bradford 



It has been my pleasure for the past several months to read 
through the written remains of the Framers of our form of government 
and to live by an act of will and imagination in something like the 
intellectual atmosphere which enveloped their deliberations in Phila- 
delphia and in the state ratification conventions called for by the re- 
sults of the Great Convention. 

On two occasions in recent years I have had the opportunity to 
visit the City of Brotherly Love and to examine what survives there 
of the charming provincial Capital, known to John Dickinson, Robert 
Morris, and Benjamin Franklin as their home. This experience helped 
me a good deal in penetrating the barriers created by the two interven- 
ing centuries in our history as a people. Even so, I am in this work 
constantly made aware of the danger anachronism — of the size of the 
gulf that separates us from the serenity and reasonableness and anti- 
ideological caution of the Fathers. But is one respect I believe I have 
identified a feature of their thought visible in particular during the 
Constitutional Convention that is hidden from us by the accepted 
myth of our national beginnings: a feature which we might do well to 
recover and apply in restoring the Republic to its original character. 

It is important for us to remember when we examine the Constitu- 
tion made in Philadelphia that it was written before the French Revo- 
lution occurred and that the education of its authors was English and 
classical: principally an education in history, Roman literature, and 
law. 

The upper reaches of metaphysical speculation concerning the na- 
ture of man and the possibility of creating a perfect Commonwealth 
for him to inhabit was not an important element in the political delib- 
erations of the English Old Whigs or their progeny, the original 
American republicans. True enough, a few of them had read Hobbes 
and Locke and, more importantly, Montesquieu and David Hume. 

M. E. Bradford was professor of English at the University of Dallas. He was author 
of numerous books, among them A Better Guide Than Reason, Against the Barbamns, and 
Original Intentions. This article originaUy appeared in the June 1981 edition of The Free- 



199 



200 / M.E. Bradford 

But what they learned from these authorities was in most cases under- 
stood to be only a gloss upon the historic rights of Englishmen and the 
history of English liberty out of which they had made a Revolution. 
The most important evidence in support of this understanding of their 
habits of mind comes from the way in which they treated the hypo- 
thetical imperative to what James Wilson of Pennsylvania, in speaking 
for the radical minority in the Convention, referred to as the "inherent, 
indisputable, and unalienable rights of men," to a kind of equality in 
political rights.^ 

It is true, of course, that the Framers often conceded that men 
were equal in a "state of nature": equally ungovemed and equally 
unprotected. But some of them also maintained, as did Calhoun later, 
that the unpleasant and hypothetical condition thus described was a 
mischievous abstraction and that the truly natural state for man, as 
opposed to that of beasts, was social: art being, as Burke taught, man's 
nature. What signifies in the reaction of the Framers to the appeals by 
Wilson and, to a certain extent, Madison, to a doctrine specifying the 
political equality of citizens in the Republic they were shaping from 
the raw materials of the Articles of Confederation and the extant and 
stubborn identities of the states is that they ignored them altogether. 

Departures from Equality 

I invite you to consider with me the meiny ways in which the 
"rights of man" are violated in the document agreed to in Philadel- 
phia. The most important of these has to do with the "great compro- 
mise," so called: the provision that one house of the national legisla- 
ture should give an equal vote to each of the states, regardless of its 
size or population; and the attendant provision that every state should 
have at least one Congressman, regardless of its population. Not every 
delegate who opposed the insistence of the small states on this formula 
was a serious devotee of "natural rights." Some were interested simply 
in the political influence of their own states. But the delegates from the 
smaller commonwealths made it quite clear that they were going 
home if they were not given their own way in this particular. 

The prudence of such compromising spirits as Benjamin Franklin, 
who was ideological about almost nothing, intruded at this point. The 
old freethinker, always ready to make it up as he went along, called 
upon his colleagues to invite a minister to come and pray over their 
deliberations. The larger states continued to grumble, but recognized 
necessity. Later, another violation of equal rights — in this case of the 
rights of posterity — was added to confirm the compromise over legis- 



Not So Democratic: The Caution of the Framers / 201 

lative representation. I refer here to the provision of the Constitution 
which precludes any amendment at some future date that would de- 
prive any state of its equal voice in the United States Senate. 

Of course, the provision for state equality in the Senate goes 
against the sacrosanct doctrine of majority rule. But that is precisely 
what the Framers wished it to do. And they followed the same prin- 
ciple in most of the important sections of the Constitution. The rule 
requiring a two-thirds vote of both Houses of Congress and a three- 
fourths vote of the states to amend the Constitution (the rule which 
has thus far prevented the adoption of the ERA, and which will, with- 
out doubt, prevent the conversion of the District of Columbia into a 
state by giving it seats in the Senate) gives an unequal weight to the 
vote of the first generation of Americans who accepted the Constitu- 
tion, and to opponents of such changes in the succeeding generations. 

The same holds true for the two-thirds rule with regard to the 
overriding of a Presidential veto, the two-thirds rule for the confirma- 
tion of ambassadors, justices of the Supreme Court and ''of all other 
officers of the United States, whose appointments are not . . . otherwise 
provided for"^; and the two-thirds rule in cases of impeachment, ex- 
pulsion of men\bers in the House or Senate, and the validation of 
treaties. 

Voting Power 

AUowing the House of Representatives and the Senate to make 
their own rules concerning the limitation of debate has, as we all 
know, been another restriction upon the will of the simple majority in 
the operation of our political system— and, I might add, a good one. 
So was the provision in the original Constitution which allowed for 
the election of United States Senators by the state legislatures or in any 
other fashion the states thought proper. 

The much abused Electoral CoUege works to the same effect and 
has, we should remember, produced several minority Presidents. If 
New York or California decide by one vote to send electors in favor 
of Candidate X, and Texas and Pennsylvania decide by the margin of 
shall we say, a miUion to commit their representatives in the Electoral 
CoUege to Candidate Y, the results of such disparity wiU not be re- 
flected in tiie number of votes given in the only election that counts 
to the respective candidates. Our Presidents are elected by the people 
of the states, acting separately, but in unison. Simple plfifW ^^- 
mocracy as proposed in some suggestions that we abohsh the CoUege 
goes against the tenor of the United States Constitution as a whole. 



202 / M.E. Bradford 

and makes this mistake precisely because its proponents imagine that 
equality of individual political rights was the regnant abstraction in 
the political lexicon of tiie Fathers. 

Other Departures from the Doctrine of Majority Rule 

Four other examples of the indifference of the Framers to the 
doctrine of majority rule are (1) the provision in the Constitution for 
the election of ihe President by the House of Representatives with each 
state casting one vote in the case of a deadlock in the Electoral College; 
(2) the process by which the Constitutional Convention itself was 
called; (3) the manner in which the Convention voted, with each state 
having one vote; and (4) the way in which the Constitution was 
adopted, the equivalent of the way in which it may be modified today. 

But there are often overlooked and more serious contradictions 
of the gospel of equality buried in the Constitution that go beyond 
mere restraints upon the will of the majority. Some of these are obvi- 
ous, such as the protections for the institution of Negro slavery in the 
Fugitive Slave clause, the twenty-year extension of the slave trade, and 
the three-fifths formula for the representation of slaves in determining 
the voting strength of the South in the House of Representatives. It is 
noteworthy that no member of the Convention entertained any idea 
that the institution of slavery, as it stood within the various states, 
could be affected or threatened by the instrument of government that 
they hoped to create. 

Slavery Condoned 

A majority of the 55 members of the Constitutional Convention 
owned slaves. Farrand tells us that slavery was "accepted" by the 
Framers "as part of the established order,"^ and that they did not 
provide any procedure for its eventual extinction. On the contrary, 
some Northern members of the Convention complained (and perhaps 
rightfully) that the three-fifths formula allowed the South to increase 
its political power by the mere expedient of purchasing slaves. Twenty 
years was thought enough time to facilitate the importation of all the 
Negroes the South could possibly need, and almost suggests that such 
purchases were to be encouraged. 

In the specific exclusion of Indians from the calculation of the 
census, equality is once again contradicted. And in the provisions 
requiring a certain age or status as citizen as a precondition for hold- 
ing office, a political onus is attached to youth and foreign birth. 



Not So Democratic: The Caution of the Framers / 203 

But far more important are the inequaHties left to the discretion 
of the states. Qualification for the franchise, as was agreed by the 
members of the Convention after much debate, was to be determined 
in the several commonwealths and was not to be meddled with by any 
component of the national power. One is fully a citizen of the United 
States by being a citizen of one of its member states. 

No less a Federalist than James Madison developed this distinc- 
tion when serving as a Congressman from Virginia during Washing- 
ton's administration. The discussion concerned the right of one Wil- 
liam L. Smith of South Carolina to hold the seat as Representative from 
South Carolina to which he had been elected. The dispute arose be- 
cause he had been overseas during the years of the Revolution. Madi- 
son's argument was uncomplicated. Representative Smith had never 
ceased to be a member of the society into which he had been bom. 
Therefore, he became a citizen of the United States when South Caro- 
lina came into the Union. 



Let the States Decide 

That American citizens living in territories and possessions of the 
Republic and in the District of Columbia do not vote in Federal elec- 
tions (except, according to a recent change, for President in the Dis- 
trict) unless they vote by absentee ballot in one of the states, is evi- 
dence to the same effect. Political citizenship for representation in 
Congress is not within the gift of the government of the United States, 
or so the Framers intended. Indeed, the states were left by the original 
Constitution with the authority to impose a religious test for office. 
The First Amendment did not alter this prerogative, as it left un- 
touched the state-supported religious establishments surviving in such 
places as Massachusetts and Connecticut. All that the amendment 
provided was that there should be no federally established church for 
the entire Union. This situation was modified with the Fourteenth 
Amendment. But Indians were still exempted from its protection. And 
Professor Raoul Berger, in his Government by Judiciary, has taught us 
to read even that innovation in our fundamental law as less drastic 
than some of our advanced thinkers would imagine.^ 

Most of the Framers, including even such generous spirits as 
George Mason, expected the states to provide for a property qualifica- 
tion as a condition of the franchise. The one mentioned most often is 
drawn from English law, that of the ''50 shilling freeholder." For it 
was their consensus that a man (and we all know the Constihition 



204 / M.E. Bradford 

gave no political rights to women) should have a stake in the society 
before he was given the right to have an influence over its future. 

What propertyless men might do with their votes was the night- 
mare before the house when the Great Convention assembled in Phila- 
delphia. They called this nightmare by a simple name — democracy. 
And they connected that term of pejoration, an anathema with over 
half of the 55 members there gathered, with the rebellion in western 
Massachusetts led in the previous year by one Captain Daniel Shays. 
The overtly anti-democratic spirit of the Framers is to the uninitiated 
reader of the records of their proceedings the greatest possible sur- 
prise. 

Fear of Democracy 

In one sense, the fear of democracy and of the despotism that was 
likely to come after it is the "given" of the Great Convention. Almost 
as soon as the meeting convened and the Virginia delegation got con- 
trol of the chair and then placed its plan of government before the 
house as its first order of business, Elbridge Gerry of Massachusetts 
(at this point in his career, as vigorous a republican as could be found) 
asserted that "the evils we experience flow from the excess of democ- 
racy," and urged his colleagues to be "taught by experience the danger 
of the leveling spirit." Governor Edmund Randolph, the spokesman 
for the Virginia Plan, picked up Gerry's theme and urged the adoption 
of his resolutions as a counter to the "turbulence and follies of democ- 
racy" in which every "evil" of government under the Articles found 
its "origin. "5 And more of the same is to be heard throughout these 
debates. 

General Washington had come to the Convention expressing the 
hope that New England would eschew those "leveling principles" 
that had made her men so difficult to command. Madison said the 
same in his letters. We have all heard what Hamilton called the peo- 
ple — "that great beast." Gouvemeur Morris described them as a "rep- 
tile," and had added, "he who wishes to enjoy natural Rights must 
establish himself where natural Rights are admitted. He must live 
alone. "^ And Rufus King of Massachusetts announced the opinion 
that "the unnatural Genius of Equality [is] the arch Enemy of the moral 
world."7 

If these sayings of our political forefathers do not sound like what 
the myth has taught us to expect, the text of the Constitution should 
persuade us that the statements were in character and are reflected in 
the most significant kind of action, the drafting of a fundamental law. 



Not So Democratic: The Caution of the Framers / 205 
A Religious Restraint 

The Framers were, again contrary to the myth, a body of religious 
men, skeptical concerning human nature, particularly of its collective 
manifestations. Only four or five of the Framers were Deists, and even 
they, as for instance Franklin, were undogmatic about politics, de- 
voted to no vast, a priori scheme. The caution of David Hume and the 
pessimism of St. Paul can have the same political results. Experience, 
as gathered in history and prescription, was, in the eyes of the Fram- 
ers, the proper guide in political questions, as in most others. At the 
end of the Convention with the finished document on the table before 
them, the venerable Franklin bespoke the caution of the entire Assem- 
bly when he asked each of his colleagues to ''doubt a little of his own 
infaUibility."8 

It was a fine thing to tinker with a stove or even to invent a city, 
and especially so if the stove and the city were what people wanted, 
and what circumstances either required or allowed. But the secular 
religion of an ideology, the mindset which we associate with a Robes- 
pierre or a Marx, would not have been well received in Independence 
Hall during those hot late spring and suiruner months of 1787. The 
very physical appecirance of the place and of the buildings surviving 
from the community which then surrounded it should tell us that. 
What they say iconically is that extremists are not in the proper style. 

No Sudden Shifts of Power 

The culture of the English Enlightenment shared by the authors 
of our Constitution was essentially anti-rationalistic, anti-metaphysi- 
cal. "Enthusiasm" was the opposite of what they meant by philosophy. 
And large-scale theories of human rights are "enthusiastic." They 
threaten property and the going social order, opening the way to a 
situation in which men Uke Captain Shays might replace the natural 
leaders, the men of virhie; confiscate and distribute everything in 
sight. Such a prospect frightened the Framers into altering the form 
of government estabUshed in the Articles, providing for an authority 
to check all such rebellions, even if they were peaceful and poUtical. 
And certainly if they offered violence. , ^ ,., 

However, since our country crossed the Great Divide of the War 
Between the States, it has been more and more the habit of our histori- 
ans, jurists, and poUtical scientists to read the Continental Enlighten- 
ment, and the Age of Revolution that was its poUtical consequence. 



206 / M.E. Bradford 

back into the record of our national beginnings by way of an anachro- 
nistic gloss upon the Declaration of Independence. 

I will not here belabor the vexed question of how we might best 
interpret the Declaration, as I have already said enough on that subject 
in another context.^ But my argument on this occasion does demon- 
strate that whatever the Declaration meant to Thomas Jefferson or 
later to Abraham Lincoln, the "political religion" of equality got short 
shrift from the men who wrote our Constitution. And the Constitu- 
tion, not the Declaration, is law. It provides that our government fol- 
low the deliberate sense of the American people. As the South has 
always recognized, concern for minority rights is not the major expla- 
nation for its anti-egalitarian features, but rather a determination that 
the majorities with power to change the law be very large indeed. 

The Constitution makes it difficult or even impossible for us to 
alter our political identity on whim or when momentarily carried 
away by the adjuration of demagogues. But it allows, indeed requires, 
that we hammer out a consensus on the important things affecting a 
very limited public sphere, working under the shadow and from the 
example of those judicious men who first set the great engine of our 
goverrunent in motion. To keep it running, we must remember how 
and why it was made. 

1. James Madison, Notes of Debates in the Federal Convention of 1787 (Athens: Ohio 
University Press, 1966), p. 221. 

2. U. S. Constitution, Article I, Section 2. 

3. Max Farrand, The Fathers of the Constitution: A Chronicle of the Establishment 
of the Union (New Haven: Yale University Press, 1912), p. 130. 

4. Suffrage for the freedmen is not contemplated in the Fourteenth Amendment, 
which explains subsequent Republican enthusiasm for the Fifteenth Amendment — once 
the party began to lose its white support. 

5. Madison, Notes, pp. 39 and 42. See also p. 658, where Gerry calls democracy "the 
worst ... of all political evils." 

6. Max M. Mintz, Gouvemeur Morris and the American Revolution (Norman: Univer- 
sity of Oklahoma Press, 1970), p. 73. 

7. Robert Ernst, Rufus King: American Federalist (Chapel Hill: University of North 
Carolina Press, 1968), p. 299. 

8. Madison, Notes, p. 654. 

9. M. E. Bradford, "The Heresy of Equality: A Reply to Harry Jaffa," on pp. 29-57 
oi A Better Guide Than Reason ( La Salle, III: Sherwood Sugden & Co., 1979). 



The Meaning of Federalism 
by Clarence B. Carson 



Several developments have contributed to making the meaning 
of federalism obscure. Some are old, some recent. Some may be more 
or less innocent; others are destructive of federalism itself. One of these 
that may be more or less innocent is the habit of referring to the United 
States government as the "federal government." Whether it is innocent 
or not, it does tend to confuse the unwary. These United States have 
a federal system of government. The system embraces both the general 
government and those of the states. Thus, both the United States gov- 
ernment and the state government are correctly alluded to as "federal" 
governments. 

When Felix Morley called attention some years ago "to the illogi- 
cal practice of referring to the central government as the 'federal gov- 
ernment'/' he declared that the confusion was "due to historical acci- 
dent." What he had in mind was that the supporters of the Constitu- 
tion, when it was being considered for ratification, called themselves 
"federalists," and the government under examination "federal." From 
that beginning, he thinks, the idea of the general or central govern- 
ment being the federal government began to take hold.^ 

That much is correct, but there is an additional reason: the Foun- 
ders devised what was essentially a new system of government. It has 
come to be called federcdism. But they were so intent upon promoting 
or preventing its ratification and acceptance that they neglected to 
devise logical appellations for it in general discourse. Before the devis- 
ing of a federal structure, leagues or unions of more or less indepen- 
dent states were usually referred to as confederations. The organiza- 
tions over these leagues could be referred to as confederation govern- 
ments. There is a comparable word— "federation"— in use. But it 
would be inaccurate and misleading to refer to the United States gov- 
ernment as the federation government. Such terminology would imply 
that the central government is over the states rather than over the 
people. Whereas, it has a jurisdiction over the people primarily. 



This article was firet published in the January 1983 edition of The Freeman. 

207 



208 / Clarence B. Carson 

People Are Governed 

The distinctive feature of the federal system of government is that 
the general government acts directly upon the people. For example, 
the government is financed by taxes on persons, not by levies upon 
states. The government in question can be described with sufficient 
precision by calling it the United States, general, central, or national 
government. However, my purpose is not so much to reform the use 
of the language as to remove the confusion engendered by referring 
to it as the federal government. More on this point later. 

Another source of confusion about federalism is the doctrine of 
states' rights, as it is commonly called. In the first place, states have 
powers (as do all governments), not rights. In the second place, what 
is being disputed within the federal system of government when so- 
called states' rights are asserted is the jurisdiction of the national gov- 
ernment to act in some field. It is important that states act to restrain 
the national government to the exercise of its powers within its allot- 
ted jurisdiction. They are most apt to do so in defense of their jurisdic- 
tion. But what is ultimately important in this is the rights of persons 
and the liberties of the people. It is easy to lose sight of this when the 
dispute is conducted in the name of "states' rights." 

Rights belong to individuals in the American constitutional sys- 
tem. Any government (whether state or national) may misuse its pow- 
ers so as to violate the rights of persons. It is exceedingly important, 
then, that the rights of persons not become identified with the powers 
of government, either national or state. That can easily become the 
means for the enlargement of the powers of government (one or the 
other, or both) at the expense of the rights of persons. That can result 
from confusing either states' powers with rights or treating jurisdic- 
tions as if any power that can be conceived falls in one or the other. 
These are confusions of the federal system that have become implicit 
in the states' rights doctrine. 

A Mistaken Use of the States' Rights Arguments 

How easy it is to fall into this trap is illustrated in the opinion 
accompanying a Supreme Court decision announced in 1936. The case 
was The United States v. Butler in which the main provisions of the 
Agricultural Adjustment Act were nullified. The majority opinion was 
written by Justice Owen Roberts. (It should be noted that Justice 
Roberts did not linguistically confuse jurisdiction with rights, but he 



The Meaning of Federalism / 209 

did rely on the states' rights argument in such a way as to ascribe 
powers to the states which they neither claimed nor possessed.) 

Justice Roberts based his decision upon the fact that the act pro- 
vided for taxing food processors in order to purchase the compliance 
of farmers with the programs it outlined. His main conclusion was 
stated in these words: "Congress has no power to enforce its com- 
mands on the farmer to the ends sought by the Agricultural Adjust- 
ment Act. It must follow that it may not indirectly accomplish these 
ends by taxing and spending to purchase compliance. The Constitu- 
tion and the entire plan of government negative any such use of the 
power to tax and to spend as the act undertakes to authorize. ..." 
Then, as if it were an afterthought, he appended this dictum: "A pos- 
sible result of sustaining the claimed federal power would be that 
every business group which thought itself under-privileged might de- 
mand that a tax be laid on its vendors or vendees the proceeds to be 

appropriated to the redress of its deficiency of income "^ jy^ j^st 

is about as close as he came to dealing with the violation of the rights 
of individuals involved. 

Even so, he was within shouting distance of the issue in the points 
he made that are quoted above. But then he dragged in the dubious 
issue of the alleged intrusion of the provisions of the act upon the 
jurisdiction of the states. He went on at length about the dangers to 
the states of such action. At one point. Justice Roberts concluded that 
the "Congress c<mnot invade state jurisdiction to compel individual 
action; no more c<in it purchase such action." At another point, he 
declared that if the principle of the act were accepted. Congress could 
invade the reserved jurisdiction of the states and accomplish the "total 
subversion of the governmental powers reserved to the individual 
states." The proponents of the act. Justice Roberts said, were trying to 
claim that the Constitution "gave power to the Congress to tear down 
the barriers, to invade the states' jurisdiction, and to become a parlia- 
ment of the whole people — "^ 

This claim flew in the face of the 10th Amendment, he charged.* 

In short. Justice Roberts did his best to bring the whole weight of 
federalism to bear on his position with what were spurious arguments 
about the jurisdiction of the states. If the act was not authorized by the 
Constitution, it was irrelevant whether or not it violated the jurisdic- 
tion of the states. That any or all states had power to pass any such act 
is nowhere proved. 

The 10th Amendment does not disclose a single power possessed 
by the states. Rather, it disposes of the question as to whether the 



210 / Clarence B. Carson 

general government has some reservoir of powers not otherwise enu- 
merated. (It doesn't.) And, if a state does not have the power to pass 
such an act, it would be no trespass upon its jurisdiction for the general 
government to pass one. He does not even explore the possibility that 
3\e states might be prohibited from passing such acts by the United 
States Constitution, for which an excellent case could be made. The 
most that can be said for the argimient is that Justice Roberts grabbed 
the states' rights ball when it came floating by and ran with it with all 
his might. 

None of this is said in derogation of jurisdictional claims of the 
states, of the decision the Supreme Court reached, nor of the powers 
of reasoning of the court. Rather, it is to illustrate the results of the 
confusion of federalism inherent in the states' rights doctrine and 
some of its corollaries. 

Subordinating the States 

But the greatest confusion about federalism and threat to its sur- 
vival has come from the concerted effort for more than half a century 
to turn the states and their dependent organizations into administra- 
tive imits of the national government. The way was eased for this by 
the habit of referring to the national government as the "federal gov- 
ernment." Off-the-mark talk about states' rights has had little more 
impact than dogs have upon the moon by barking at it. State organiza- 
tions have been most effectively turned into administrative units in 
connection with the development of the welfare state. 

More precisely, as the national government became more and 
more involved with redistributing wealth, state organizations, particu- 
larly counties, became instruments of much of the distribution. For 
example, state welfare agencies (called by a multiplicity of names 
nowadays) administer a great variety of progrcuns funded by the na- 
tional government. Over the past three decades, too, the courts of the 
United States have asserted increasing and widespread authority over 
agencies funded primarily by the states, such as schools, prisons, men- 
tal institutions, colleges, and what have you. There should be no doubt 
that there have been large scale intrusions upon the jurisdictions of the 
states. 

The confusion has been further compounded in recent years by 
what has been called the "New Federalism." Currently, the phrase is 
being used by the Reagan Administration to designate the plan to turn 
over some welfare programs to the states, to disentangle some state- 
national joint efforts by having the national government take over the 



The Meaning of Federalism / 211 

funding of them entirely, and to reduce national controls over grants 
made to states by the government. But the idea of a New Federalism 
had been around for several years before Reagan became President. 

The late Nelson Rockefeller proposed doing something to revive 
federalism in a book published in 1962, entitled The Future of Federal- 
ism. At the beginning of his second term. President Richard Nixon 
advanced the idea of having the national government aid in the recov- 
ery of federalism. About all that came out of that was the practice of 
providing large grants from the central government under the rubric 
of revenue sharing. What these various proposals and plans have in 
common is the notion that federalism can be restored to its full vitality 
by action of the national government. That may well be the problem 
rather than the solution. At any rate, it has succeeded thus far more 
in confusing than in clarifying the meaning and function of federalism. 

The main point I wish to make about the function of federalism is 
that it is a system for the protection of the liberties of people and the 
rights of individuals. The freedom of a people consists in the voluntary 
use of their property and faculties to their chosen ends. The Founders 
of the United States generally understood well something that is uni- 
versally the case: that government is ever the greatest potential threat 
to freedom of action. The liberties that prevail consist of those acts not 
prohibited by law and those rights of individuals that governments 
are forbidden to violate emd are enjoined to protect from all intruders. 
In short, the precondition of extensive liberty for a people is limited 
government. It is, then, as a device for limiting government that a 
federal system of government performs its most valuable function. 
But to grasp the full implications of this, the meaning of federalism 
needs to be clearly stated as free of confusion and complications as 
possible. 

Two Governments in Power 

A federal system of government is one in which two governments 
have jurisdiction over the inhabitants. In this country, the two govern- 
ments are those of the states and of the United States. Both govem- 
ments have sanctions, that is, may use force upon the inhabitants. Both 
have enforcement officers and courts. This system is sometimes re- 
ferred to as one of dual sovereignty. The phrase is, however, mislead- 
ing, and when carried very far leads to conflicts for which there is no 
resolution short of the destruction of such independence as one or the 
other governments may have. 

The term sovereignty came into currency in the modem world m 



212 / Clarence B. Carson 

the sixteenth century. Monarchs came to be referred to as sovereigns. 
The concept was used to buttress absolute monarchy. It means the 
supreme, or ultimate authority, over a land, state, or country. The 
United States does not have a monarch, or king; literally, it does not 
have a sovereign. It goes deeper than that, however. Neither the Con- 
stitution of the United States nor the constitutions of the states vest 
supreme authority in any man, any group of men, or the people as a 
whole. 

It is the genius of American federalism that government is limited, 
not supreme. Sovereignty is a mischievous notion, an improper ana- 
lytical tool for describing government in this country. It sends people 
in quest for an authority which can only exist in defiance of the consti- 
tutions of the states and of the Constitution of the United States. 

Federalism is best understood, not as a political concept, but as a 
legal concept, which is what it is. Sovereignty is a political concept (an 
absolutist authoritarian one, at that); jurisdiction is a legal concept. 
Thus, the conclusion that in the United States the states have a jurisdic- 
tion, and the United States has a jurisdiction. 

Defining the Jurisdiction 

The Constitution of the United States, aside from describing the 
method of selection of its officers and the inner workings of the gov- 
errmaent, is mainly concerned with defining the jurisdiction of the 
government that it authorizes. Also, it denies jurisdiction to the states 
in certain areas, prohibits states to act in certain ways, and reserves 
powers to the states, and rights to the people. Before offering some 
proof for this and delineating the jurisdictions, however, there are two 
basic points that need to be nailed down. 

The first is to show why state governments are federal govern- 
ments as well as the United States. These United States have a federal 
system of divided jurisdiction in government. Severally, the states 
exercise authority over persons in one of these jurisdictions. The 
United States government exercises authority in the other. Both, there- 
fore, are federal governments. To acclaim one as the federal govern- 
ment to the exclusion of the other is to deny, implicitly, that we have 
a federal system of government. 

The other point has to do with the independence of the state 
governments of the central government and the powers of action inde- 
pendent of state goverrunents by the United States government. That 
is not to say that each does not rely on the other in important ways — 
they do — ^but to affirm that their operations as governments cire inde- 



The Meaning of Federalism / 213 

pendent. Indeed, the independence of the states stands on more soUd 
historical ground than does that of the national government. 

James Madison noted that in this and several other matters, ''The 
State governments will have the advantage of the federal govern- 
ment." As proof, he pointed out that "The State governments may be 
regarded as constituent and essential parts of the federal government; 
whilst the latter is nowise essential to the operation or organization 
of the former." His meaning was that elections occur within states, and 
that the general government depends upon the states to come into 
being. "On the other side," he continued, "the component parts of the 
State governments will in no instance be indebted for their appoint- 
ment to the direct agency of the federal government. . . ."^ Moreover, 
some of the states existed before the United States. True, after the 
adoption of the Constitution, states are admitted to the union by act 
of Congress. But they come into being at their own instance, draw up 
their own constitutions, and select their own officers. Their indepen- 
dence of the general government, then, is antecedent to it. 

The important point, however, is that both the government of the 
union and the states are distinct and separate entities. They are gov- 
ernments in their own right, neither being the creation of the other. 
Devotees of the states have sometimes argued that the United States 
was created by the states.^ Not so, however. The states did send dele- 
gates to the Constitutional Convention, and they did hold elections for 
the consideration of ratification of the Constitution. But the latter dele- 
gates were chosen by the electorate, and the preamble to the Constitu- 
tion refers to "We the people" as the origin of the government. In any 
case, both governments possess the essentials of separateness, distinct- 
ness, powers, and independence to be considered governments in their 
own rights. 

Local Governments 

By contrast, local governments are not independent governments. 
Except for the District of Columbia, aU local governments are creahires 
of the states. They come into being by authority of the states, and 
derive such powers of governments as they exercise from the states. 
They are not, then, a part of the federal system of government, but 
rather a part of state government. Or, to be absolutely precise, they are 
linked to federalism only by their ties to state governments. 

If the independence of the state and United States governments 
were all that could be said about federaUsm, however, it would be a 



214 / Clarence B. Carson 

fearful and monstrous system of government. To have one indepen- 
dent government over the inhabitants is bad enough, but to have two 
would be intolerable, if each or either could exercise its power without 
restraint. That is not the case, however. Both governments are re- 
strained, restrained by each other by the delineation of their separate 
jurisdictions, the denial of powers to one or the other or both, and by 
the specified manner in which they are to exercise their powers. Their 
independence of each other is important, because it provides a safe- 
guard against intrusion by either into the jurisdiction of the other. But 
it is of even greater importance — that in the assignment of jurisdictions 
both governments are limited and restrained. It is these restraints that 
protect the liberties of the people. 

The bulk of these restraints are found in the United States Consti- 
tution. In the first place, the United States government was never 
granted all the powers that it might be claimed are inherent in govern- 
ment itself. It was granted only a limited jurisdiction to deal with 
certain objects of government. These powers were described in general 
terms in the following ways at the time of the debate over the ratifica- 
tion of the Constitution. John Jay, speaking in the New York state 
convention, maintained that the powers were largely restricted to the 
following objects: "They comprehend the interests of the states in rela- 
tion to each other, and in relation to foreign powers."^ James Madison 
observed that "the powers of the general government relate to external 
objects and are but few."^ Again, he emphasized that "The powers 
delegated by the proposed Constitution to the federal government are 
but few and defined."^ In the Virginia convention, Edmund Pendleton 
argued that the general government was to act "in great national 
concerns, in which we are interested in common with other members 

of the Union At another point, and more heatedly, he insisted that 

the government authorized was not clothed with all powers of govern- 
ment. "It only extends," he said, "to the general purposes of the Union. 
It does not intermeddle with the local, particular affairs of the states."^® 

Specified Limited Powers 

It is not necessary, however, to rely solely upon the comments and 
descriptions of contents by the Founders to learn that the Constitution 
granted only limited powers to the general government. The docu- 
ment speaks for itself in this regard. The powers of the government 
were enumerated in several places in the Constitution, above all, in 
Article I, Section 8. For example, such powers as these are granted: 



4 



The Meaning of Federalism / 215 

To define and punish Piracies and Felonies committed on the 
high Seas and Offences 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 

To provide cind maintain a Navy. 

To establish an uniform Rule of Naturalization, and uni- 
form Laws on the subject of Bankruptcies throughout the 
United States. 

In the most general terms, then, the Constitution provided for a 
general government to conduct foreign relations, to settle disputes 
among the states, and to facilitate trade and intercourse among the 
peoples of the states. 

Further, the United States government is prohibited to do some 
things. For example, "No Bill of Attainder or ex post facto Law shall 
be passed." "No Tax or Ehity shall be laid on Articles exported from 
any State." "No Title of Nobility shall be granted by the United States 
. . . ," and so on. The government is further restricted by amendments, 
such as the Fourth, which reads: "The right of the people to be secure 
in their persons, houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated, and no Warrants shall 
issue, but upon probable cause, supported by Oath or affirmation, and 
particularly describing the place to be searched and the persons or 
things to be seized." Beyond all these, there is a blanket limitation 
contained in the 10th Amendment: "The powers not delegated to the 
United States by the Constitution, nor prohibited by it to the States, 
are reserved to the States respectively, or to the people." 

Limits to State Powers 

The jurisdiction of the states was conceived as being much more 
comprehensive than that of the United States at the time of the draw- 
ing of the Constitution. The Constihition does prohibit certain powers 
to the states. For example, "No State shall enter into any Treaty, Alli- 
ance, or Confederation; grant Letters of Marque and Reprisal; coin 
money, emit Bills of Credit; make any Thing but gold and sUver Com 
a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto 
Law, or Law impairing the ObUgation of Contracts, or grant any Title 
of NobiUty." 

There are hirther prohibitions on the states in amendments, the 
most general of which are to be found in the Fourteenth, and the 



216 / Clarence B. Carson 

central ones are embodied in these words: "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." 
Beyond such prohibitions, however, the main powers of government 
over the lives of persons were reserved to the states. 

James Madison stated the case for the residual powers of the states 
this way. "Those which are to remain in the State governments are 

numerous and indefinite The powers reserved to the several States 

will extend to all the objects which, in the ordinary course of affairs, 
concern the lives, liberties, and properties of the people, and the inter- 
nal order, improvement, and prosperity of the State. "^^ 

State Constitutions also Limit 

It should be noted, however, that the states are further restrained 
by their own constitutions, and most of these have much more exten- 
sive restrictions than are contained in the United States Constitution. 
Moreover, as already noted, since the time of Madison, further exten- 
sive prohibitions on the states have been added to the Constitution. 
Thus, it is correct to say that both the United States and state govern- 
ments are limited and that neither possesses all those powers which 
may be conceived as inherent in government itself. 

The object of this limitation, indeed, the highest object of federal- 
ism itself, was the rights of individuals and the liberties of the people. 
Alexander Hamilton put it this way: "This balance between the nation 
and state governments ought to be dwelt on with peculiar attention, 
as it is of the utmost importance. It forms a double security to the 
people. If one encroaches on their rights, they will find a powerful 
protection in the other. Indeed, they will both be prevented from over- 
passing their constitutional limits, by a certain rivalship, which will 
ever subsist between them."^^ 

From our perspective, it is easy to conclude that Hamilton was 
wrong, at least in part, in his prediction. He was right, of course, in 
holding that the national government would defend its jurisdiction 
from intrusion by the states. He was right, too, in maintaining that this 
would provide security against states' encroaching upon the rights of 
the individual. It has worked that way historically, and it is still work- 
ing that way. But what of that "rivalship" of the states over their 
jurisdiction and the security that was supposed to afford against con- 



The Meaning of Federalism / 217 

centration of power in the central government and its violation of the 
rights of the people? 

Aside from clamors about "states' rights'' and an occasional suit 
by some state in the courts of the United States, the states appear to 
be paper tigers. They are largely unable either to protect their own 
jurisdiction or the rights of their inhabitants from the central govern- 
ment. Either Hamilton was wrong or something has happened in the 
interval. 



An Important Balance 

It will be my position that Hamilton was right about the Constitu- 
tion as it then stood. To understand why, it is necessary to look at the 
structure of the government and how it has been changed so as to 
effect the power of the states to defend their jurisdiction. The answers 
to two questions should lay open to view the crucial structure of the 
government. First, what branch or organization in the central govern- 
ment was crucial to the defense of the jurisdiction of the United States? 
While all the branches play a role in it, the ultimate power for the 
defense lies in the Supreme Court. By its power of review of legisla- 
tion, both national and state, where a constitutional question is raised, 
it can vigorously and effectively assert and defend the jurisdiction of 
the United States. 

Second, in what branch of what government is there an organiza- 
tion with the power and under the control of the states to defend the 
jurisdiction of the states? There is no such organization today. There 
has not been one in the United States since 1913. Until 1913, the United 
States Senate had power to do it (and it still does), and state legisla- 
tures had crucial leverage over the Senate. That leverage was removed 
in that year by the 17th Amendment. The amendment provided for 
the direct election of Senators. 

In the original Constitution, Senators were elected by the legisla- 
hires of the states. In effect, the state governments had representatives 
in Congress; they were the members of the Senate. The Senate is well 
placed in the government to defend the jurisdiction of the states, if it 
will and must. It can refuse to pass any bill which intrudes upon the 
jurisdiction of the states. Moreover, Supreme Court, indeed, all coi^, 
appointees of the United States government, have to be approved by 
the Senate. Presidents, too, have large incentives to get along weU with 
the Senate, for all their major appointees and all treaties must be 
approved by the Senate. Further, trials of impeachment, mcludmg 
judges, are conducted before the Senate. 



218 / Clarence B. Carson 

Since 1913, state legislatures have had little or no effective control 
over Senators. No longer do they have to please the state legislatures 
to be reelected. State governments are no longer represented in the 
central government. It is not surprising, then, that the great growth 
and expansion of power of the national government have occurred 
since 1913. The main balance wheel for the states in the Senate no 
longer operates to restrain it. The courts have ever more vigorously 
asserted and expanded the jurisdiction of the United States, and the 
presidents and Congress have not been far behind. 

That is not to say that federalism is meaningless today. It is still 
used to restrain the states. Moreover, the states still retain much juris- 
diction, or portions of it, thanks largely, I susf>ect, to the voters. But 
the central government is no longer restrained significantly by federal- 
ism. It has become the government, indeed, the federal government, 
as we acknowledge in our references to it. 

If the above analysis is correct, federalism can hardly be restored 
by redistributing welfare programs. It will hardly be revitalized, in 
any case, by federal aid or revenue sharing. It will only be able to 
perform its salutary function of protecting its jurisdiction so as to 
defend the rights of its inhabitants when it has a means for doing so 
within the general government itself. Looked at that way, the election 
of Senators by state legislatures was a good idea. 

1. Felix Morley, Freedom and Federalism (Chicago: Henry Regnery, a Gateway edi- 
tion, 1959), p. 21. 

2. Henry S. Commager, Documents of American History, vol. II (New York: Appleton- 
Century-Crofts, 1963), p. 251. 

3. Ibid., pp. 251-52. 

4. Ibid., p. 249. 

5. The Federalist Papers, Willmoore Kendall and George W. Carey, inlro. (New 
Rochelle, N. Y.: Arlington House, n. d.), pp. 290-91. 

6. See, for example, James J. Kilpatrick, The Sovereign States (Chicago: Henry Regn- 
ery, 1957), p. 4. 

7. Elliot's Debates, Bk. I, vol. 2, p. 283. 

8. Ibid., vol. 3, p. 259. 

9. The Federalist Papers, p. 292. 

10. Elliot's Debates, Bk. I, vol. 3, pp. 40, 301. 

11. The Federalist Papers, pp. 292-93. 

12. Elliot's Debates, Bk. I, vol. 2, pp. 257-58. 



Freedom and Democracy 
by John Hospers 



The very word "democracy" in our time has become a term of 
commendation. Every system of government wants to call itself a de- 
mocracy, even if it is actually a dictatorship. "Democracy" has become 
such a term of approval that to call something democracy is implicitly 
to commend it. Even Communist nations whose governments are ty- 
rannical to the core pride themselves on being "people's democracies." 
In non-Communist nations such as the United States this tendency is 
equally evident: we hear of wars to defend democracy, and the need 
to "preserve the tradition of liberal democracy." 

Whether one is talking about the right to vote or the "need to share 
our resources," people will use the word "democracy" to praise what- 
ever political system or ideal they favor. The harshest criticism of any 
procedure is that it is "anti-democratic." And yet it was not always so: 
even a hundred years ago in this country, to call a nation a democracy 
could be construed simply as a description, not an evaluation — some- 
times even as a criticism. Almost nowhere is this any longer true. 

Majority Rule 

Democracy is rule by the majority. In a direct democracy, such as 
that of ancient Athens, or like the New England town meetings, every 
citizen can vote on every measure. In an indirect, or representative, 
democracy, each citizen can vote to elect representatives (Congress, 
ParUament) who then do the voting, and it is the majority of the 
representatives rather than the majority of the citizens themselves who 
determine the outcome. 

Let us consider representative democracy, the only kind that is 
feasible in large nations. Several conditions have first to be spelled out 
before our description is complete. 

First, in a democracy there are elections. But how often? Suppose 
there were an election only once in a hundred years. In such a "democ- 

S^^spers is professor emeritus in the Department of Philosophy ^J.^^ 1^">^^^^ 
sity of Southern Cahfomia, Los Angeles. This article was origmally published m the 
June 1984 edition of The Freeman. 



219 



220 / JohnHospers 

racy" voters could not vote to change governments more than once 
in a lifetime. Clearly, elections must be fairly frequent, enough to give 
voters a chance to vote for new candidates. 

Second, the vote must be rather widely distributed. If only one 
percent of the population could vote, or only persons whose iiutials 
were R. Z., no election would represent the will of the majority of the 
people, no matter how often they were held. There are almost always 
certain restrictions on voting — e.g., minors cannot vote, convicted fel- 
ons cannot vote while in prison, persons in mental institutions cannot 
vote, and non-citizens cannot vote — ^but in the twentieth century at 
least there are many times more residents who can vote than cannot. 
Only after World War I could women vote in the United States, and 
for many decades no blacks could vote, as they still [1984] cannot in 
South Africa. 

Third, even if everyone could vote, and at frequent intervals, it 
would be to no purpose if there were no diversity of positions avail- 
able to vote for (or agair\st). In the Soviet Union people can vote, at 
least for some offices, but only for one Communist candidate or an- 
other — ^non-Communists are not permitted to be on the ballot. In other 
Eastern bloc nations, numerous political parties are permitted, but no 
one is permitted to be a candidate who is not officially approved by 
the government in power. Such a restriction on candidacy can have 
the sanie effect as permitting only Communists to be candidates. In 
both cases, a wide diversity of preferences is ignored. If a democracy 
is to function at all, it must be possible for persons of whatever opinion 
to sponsor candidates for office and there must be means for getting 
them on the ballot. 

Nor is even this sufficient. No choice by voters is meaningful 
imless that choice has at least the opportimity to be an informed 
choice; and this is not possible if all the channels of publicity are re- 
served for the officially sponsored parties. Electors must be able to find 
out all they need to know about the alternative Ceindidates. If the 
government owns all the television and radio stations, and owns or 
controls the content of newspapers and magazines, the voter will not 
be able to receive an accurate impression of the choices available. 

Even if the press is not owned by the government, if newspapers 
are censored or prohibited from expressing opinions contrary to those 
of the party in power, voting citizens will not be able to make choices 
on the basis of reliable information. If newspapers and the media cire 
monopolized by one group or party, it is not possible for the groups 
which are denied access to the media to receive a fair hearing. And 



Freedom and Democracy / 221 

thus a controUed press is incompatible with democracy, and a free 
press essential to it. 

There may weU be other conditions, but these at least are indispen- 
sable if any system of government is to be called a functioning democ- 
racy.^ 

Self 'Government 

Democracy is often spoken of as "self-government." But if we treat 
this term with any care at all, it is clear that democracy is no such 
thing. I can govern myself, determine to a large extent the course of 
my life, curb my desire for immediate satisfactions in order to achieve 
long-range goals, and so on. And you can do the same with yourself. 
If ten people do this, each is governing himself or herself. But when 
people speak of democracy as self-government, they are not speaking 
about each person governing himself; they are speaking of a process 
in which a majority of voters, or a majority of members of a legislature, 
make decisions which have the force of law for everyone, including 
those who are opposed to what is enacted. It is true that each adult 
individual in a democracy can participate in determining who shall sit 
in the seats of political power — ^but only in a very small way, seldom 
enough to change the outcome of an election. 

In any case, self-government mear\s governing oneself; it is a mis- 
take to extend this from an individual to a collection of individuals 
and say that via democracy the collection is "governing itself." Democ- 
racy is simply government by the majority of a collective (or the major- 
ity of the representatives the voters have voted for). Their decisions 
may not accord with the needs or wishes of you as an individual at 
all. To the extent that they exert coercive power over your life, you are 
being governed by others. 

An individual, of course, may govern himself badly: he may make 
constant mistakes, may ruin his own life, may waste his years on 
useless projects or alcohol; but at least he is doing it to himself. A 
democratic government may also govern others badly. When inhabi- 
tants of a nation freed from colonial rule say, "At least we're govern- 
ing ourselves," what they are saying is that instead of people from 
outside the nation ruling them, there are now people from mside the 
nation ruling them-and sometimes doing so far worse than their 
colonial masters did. 



222 / JohnHospers 
Objections to Democracy 

The most usual, and most easily understood, objection to democ- 
racy as a form of government is that it enables the majority to ride 
roughshod over the rights of a minority — to persecute them, to censor 
their activities, even to kill them. A majority might vote to kill certain 
minority racial elements, or to make life difficult for them in many 
ways. If feelings run high and a majority knows it can get by with it, 
there is every temptation to vote into law whatever prejudices a major- 
ity may have. Is it inconceivable that a majority of Germans, had they 
voted on it, would have voted to do something (not necessarily death) 
to Jews? Certainly a majority of Americans for generations used the 
political means to keep blacks "in their place." When there is no crite- 
rion but majority rule, anything can become law, depending on what 
the whims of the majority are; it is like a ship without a rudder. 

But a second, and even more telling, criticism of democracy is that 
the majority of voters will often vote for policies which turn out to be 
ruinous to themselves, though they do not see this at the time. Legisla- 
tures, responding to the voters who elected them, may vote billions 
of dollars for various schemes of welfare. Even though only a small 
part of the money ultimately reaches the poor for whom it was in- 
tended, the legislators continue to vote for more of these measures. If 
they don't, they are branded as "cold" and "unhumanitarian" (as if it 
were somehow humanitarian for A to take B's money and give it to 
C) and they won't get re-elected. But the voters rebel at the resulting 
high taxes, so the government resorts to increasing quantities of print- 
ing-press money, and the result of course is inflation. The consumer's 
dollars will no longer buy what they did before, and almost everyone 
is worse off than before. But they didn't see the causal connection 
between the measures they voted for and their resultamt poverty. They 
didn't realize that if 40 percent of their income went to finance the 
government, that was 40 percent they couldn't use themselves, and 
yet that 40 percent wasn't enough to finance the government projects 
which they themselves favored. 

When they said "It's government money," they didn't realize that 
it was their money that was being taken from them to finance the 
projects they wanted. They didn't realize that money isn't like manna 
from heaven — that the government has no way of financing anything 
except by taking it from the people themselves. They didn't see that 
for every person who gets something for nothing there must be at least 
one other person who gets nothing for something. Even a superficial 



Freedom and Democracy / 223 

knowledge of elementary economics should have told them this much- 
but they didn't have even that elementary knowledge, so they voted 
themselves mto disaster. Thus, beginning in relative independence of 
government, they voted themselves into utter dependence on govem- 
ment, a result they had completely failed to foresee. 

One may say, "WeU, then they deserve it. They brought it on 
themselves." Perhaps so— but who is the ''they'7 The ''they'' is the 
majority. The minority, who warned against these consequences, and 
were only ridiculed for their efforts, certainly did not deserve such a 
fate; they knew well enough what would happen. But in a democracy 
they must suffer consequences along with the ignorant majority that 
favored the disastrous policies. 

When Benito Juarez, the first president of Mexico, said, "Since 
people do not vote themselves into slavery, freedom flows from de- 
mocracy as water flows from the hills," his words were doubtless 
eloquent and inspiring. But unfortunately they were not true; people 
do vote themselves into slavery. 

Plato on Democracy 

What, after all, is so great about a majority view? Does a majority's 
taste in art determine which art is best? Does a majority vote on New- 
ton vs. Einstein determine which of their theories was right? Are the 
masses of mankind so imbued with political wisdom that the majority 
can always be trusted to make the right choices? On the contrary: the 
majority of people appear to be influenced more by a candidate's 
image than by his argument, and to become bored and uncompre- 
hending when even moderately difficult points are discussed (such as 
the need for capital investment to bring about prosperity). Ignorance 
and confusion multiplied 100 million times are still ignorance and 
confusion. That is why Louis Napoleon characterized democracy cyni- 
cally as "government of the cattle, for the cattle, by the cattle." And 
that is why Plato more than two thousand years ago spoke of democ- 
racy in the following manner: 

Imagine this state of affairs on board a ship or a number of 
ships. The master is bigger and burlier than any of the crew, 
but a Uttle deaf and short-sighted and no less deficient in 
seamanship. The sailors are quarrelling over the control of the 
hehn; each thinks he ought to be steering the vessel, though 
he has never learnt navigation and cannot point to any teacher 



224 / JohnHospers 

iinder whom he has served his apprenticeship; what is more, 
they assert that navigation is a thing that cannot be taught at 
all, and are ready to tear in pieces anyone who says it can. 

Meanwhile they besiege the master himself, begging him 
urgently to trust them with the helm; and sometimes, when 
others have been more successful in gaiiung his ear, they kill 
them or throw them overboard, and, after somehow stupefy- 
ing the worthy master with strong drink or an opiate, take 
control of the ship, make free with its stores, and turn the 
voyage, as might be expected of such a crew, into a drunken 
carousal. 

Besides all this, they cry up as a skiUed navigator and 
master of seamanship anyone clever enough to lend a hand 
in persuading or forcing the master to set them in command. 
Every other kind of man they condemn as useless. They do 
not imderstand that the genuine navigator can only make 
himself fit to command a ship by studying the seasons of the 
year, sky, stars, and winds, and all that belongs to his craft; 
and they have no idea that along with the science of naviga- 
tion, it is possible for them to gain, by instruction or practice, 
the skill to keep control of the helm whether some of them like 
it or not. 

If a ship were managed in that way, would not those on 
board be likely to call the expert in navigation a mere star- 
gazer, who spent his time in idle talk cind was useless to them? 
. . . But our present rulers may fairly be compared to the sailors 
in our parable, and the useless visionaries, as the politicians 

call them, to the real masters of navigation Democracy 

will promote to honor anyone who merely calls himself the 
people's friend.2 

A Republic 

The government of the United States is not a democracy, and the 
Foimding Fathers never thought of it as such. It is, rather, a republic. 

A republic may be democratic in many of its procedures, but there 
are certain things it cannot do. In the constitution of a republic are 
contained certain limitations on what the majority may do. Thus, the 
First Amendment declares that Congress shall pass no law abridging 
freedom of speech or of the press. Even if a law banning freedom of 
speech were passed by Congress, it would be unconstitutional and 
presumably would be struck down by the courts. 



I 



Freedom and Democracy / 225 

In the same way, the Constihition provides for ''due process of 
law/' protects citizens against search and seizure of property entitles 
them to protect themselves against aggressors, and so on-and havine 
these protections embedded in the Constitution gives aU of us protec- 
tion against measures that an ignorant or whimsical majority might 
enact. In short, the Constitution recognizes and protects individual 
rights— ag^nst their violation by other individuals, and by the gov- 
ernment itself— whereas unlimited democracy may flout them with 
abandon, and with nothing between them and us to protect us against 
the ever-changing whims of the majority. 

As James Madison wrote in The Federalist Papers, "A pure democ- 
racy can admit no cure for the mischiefs of faction. A common passion 
or interest will be felt by a majority, and there is nothing to check the 
inducements to sacrifice the weaker party. Hence it is, that democra- 
cies 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." 

What Kind of Republic? 

What whims we are protected against depends, of course, on what 
kind of republic it is. It depends on what kinds of protection are 
written into the constitution; it also depends on whether the constitu- 
tion is actually followed in practice or is simply there for self-adver- 
tisement or window-dressing, like the constitution of the Soviet Union. 

The best constitution is one which provides maximum freedom 
under a rule of law. Maximum freedom means freedom to live by 
one's own choices and not to live by the choices forced on one by 
others. But some choices that people make interfere with the freedom 
of others; some people choose to murder, to plimder, to steal the fruits 
of others' labor. Such errant behavior is the reason why law is re- 
quired. The first maxim of the law is: Do not harm others— whether 
those inflicting the harm are other individuals or the government it- 
self. Law is required so that people may live in freedom, not having 
that freedom forcibly interfered with by the choices of others. 

All this was certaiiUy the intent of the Founding Fathers of the 
American republic. Such freedoms include, certainly, the political free- 
doms, such as the freedom of speech and press, freedom of peaceable 
assembly, and freedom from harm to one's person or property; they 
also include economic freedom, such as the freedom to start a new 
enterprise, freedom to sustain it by one's efforts (not to have it confis- 
cated), and freedom to employ others or be employed by others on 



226 / JohnHospers 

terms voluntarily agreed to by both; in short, the freedom of the mar- 
ket. 

The Founding Fathers saw no reason to assume that a majority of 
citizens should have the final and deciding word on what bills should 
be enacted into law; decisions of such depth and complexity could not 
be left to the ever-changing whims of a majority. "No one imagines 
that a majority of passengers should control a plane. No one assumes 
that, by majority vote, the patients, nurses, elevator boys and cooks 
and ambulance drivers and internes and telephone operators and stu- 
dents and scrubwomen in a hospital should control the hospital. 
Would you ever ride on a train if all the passengers stepped into 
booths and elected the train crews by majority vote, as intelligently as 
you elect the men whose names appear in lists before you in a voting 
booth? Then why is it taken for granted that every person is endowed 
on his 21st birthday with a God-given right and ability to elect the 
men who decide questions of political philosophy and international 
diplomacy? 

"This fantastic belief is no part of the American Revolution. 
Thomas Paine, Madison, Monroe, Jefferson, Washington, Franklin, did 
not entertain it for a moment. When this belief first affected American 
government, it broke John Quincy Adams' heart; to him it meant the 
end of freedom on earth. "^ 

And yet, things haven't quite turned out that way. As one ob- 
serves the United States today, it often seems as if very little of the 
original republic remains, and that it has been gradually, sometimes 
imperceptibly, but nevertheless surely been transformed into the de- 
mocracy that the Founding Fathers feared. How has this happened? 

Election to Federal Offices 

One important straw in the wind is the gradual transformation of 
the manner in which individuals are elected or appointed to high 
office in the federal government. Most people seem to assume that 
congressmen and presidents always came into office as the result of 
democratic elections. But the founders of our republic carefully framed 
it otherwise. Consider how it was when the republic was founded, and 
for many years thereafter, based on the original (unamended) Consti- 
tution: 

1. The only exercise of majority rule in the federal government 
was the House of Representatives. The majority of voters were em- 
powered to elect — and to recall in two years — the members of the 
House, the only body having the authority to sf>end the money col- 



Freedom and Democracy / 227 

lected from the people in taxes. (Voting was also much more restricted 
during those years.) 

2. The Senate was not elected by the citizens. Its members— two 
from each state— were appointed by the legislatures of their respective 
states, according to rules determined by the states and not the federal 
government The popular election of senators did not come about until 
the 17th Amendment, in 1913. 

3. The president was not elected by popular vote at all. Article 2 
of the Constitution reads, in part: "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. ... The electors shall meet 
in their respective states, and vote by ballot for two persons. . . . 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 trar\smit 
sealed to the seat of the 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 shall be the president, if such nimiber be a 
majority of the whole number of electors appointed — ''It was done 
this way so that the president would not be subject to the whims of 
any section of the nation, but would represent the entire republic. 

Today, of course, the president is elected by popular vote, and the 
Electoral College is an empty charade. This is yet another step toward 
emasculating the republic and instituting democracy. "And many a 
president in a time of crisis, since that right [freedom from popular 
election, hence from special interest groups] was taken away from his 
high office, must have silentiy cursed the amendment that plunges 
him to the neck in a mob of short-sighted, local-minded, clamoring 
men, clutching and pulling at him with a thousand hands. Today that 
Amendment does not let the captain of this ship of State make one 
clear decision unhampered by the ignorance and prejudices and fears 
of all the passengers on all the decks and aU the men playing poker 
in the ship's bar. An ocean liner could not be navigated for a day 
under such conditions.'"* 

The Courts and the Republic 

But that is only the tip of the iceberg. What has occurred in tiiis 
nation, and only partiy because of changes in the method of electing 
presidents and Congressmen, is an enormous expansion of governmental 



228 / JohnHospers 

powers. When this republic was founded, the main purpose of the 
federal government was defense against aggression: police to defend 
citizens against internal aggression, and armed forces to defend them 
against external aggression. But since government, to discharge these 
functions, requires a monopoly on the use of physical force — or at least 
a monopoly on the power to say who will be entitled to wield that 
force — it is tempting for a government, once installed, to use that 
coercive force in ways that were no part of the original plan. "Give 
them an inch and they'll take a mile" was never more applicable than 
to the powers usurped by governments: power to regulate industry 
and agriculture, power to control and inflate the currency, power to 
seize the earnings of those who work and give them to those who do 
not — and so on endlessly. 

"But the United States is a republic; and the republic's powers are 
limited by its constitution. The Constitution does not mention any of 
these powers as being among those delegated to the federal govern- 
ment. The federal government is not constitutionally empowered to 
do any of these things." 

This is quite true. But the Constitution is interpreted by the courts, 
and the courts — particularly during and since Roosevelt's "New 
Deal" — ^have conspicuously failed to prevent the expansion of Federal 
powers. The result has been to sanction Federal interference in virtu- 
ally every branch of economic activity, in which, as a republic, it has 
no place. 

Interstate Commerce 

For example, the Constitution empowers the federal government 
to handle "interstate commerce." But the interstate commerce clause 
has been construed by the courts so as to permit all manner of activi- 
ties never envisaged by the framers of the Constitution, such as "tax- 
ing North Dakota farmers to build flood control dams on a dry creek 
rising in the mountains of Los Angeles County, flowing through Los 
Angeles County, and discharging into the Pacific Ocean in Los Ange- 
les County. "5 Interstate commerce has been construed to include the 
wages of men who wash the windows of buildings in which interstate 
trade is conducted. It has been construed to permit all manner of 
regulation of agriculture, such as regulating the kind and amounts of 
crops a farmer may grow. (The federal government has the authority 
to regulate that which it subsidizes, said the Court; but what gave it 
the authority to subsidize in the first place?) It has been construed so 



Freedom and Democracy / 229 

as to permit the government to set the price of natural gas at the 
well-head (the Phillips Petroleum Case of 1954), thus discouraging the 
search for new sources of natural gas and meanwhile encouraging 
consumers to be wasteful of gas because of the government-set low 
price. Indeed, it has enabled the government to create an energy short- 
age where in nature no energy shortage exists.^ These and thousands 
of other intrusions into the free market have been brought about by 
these court decisions, giving to the federal government tremendous 
regulatory powers never granted in the Constitution of this republic/ 
And yet, in numerous polls throughout the last decade, a majority 
of Americans appear to believe that what is needed are more controls, 
not fewer. The majority have no idea of the cost of these controls: the 
tremendously expensive and wasteful regulatory apparatus, the ball 
and chain it places on production, the countless men and women who 
xvould have helped to create a prosperous economy, who would (for 
example) have found natural gas and sold it at market price (and with 
greater abundance, the price would have come down). The majority 
see only that "we think the price is too high,'' and vote to control the 
producers. And thus they kill the goose that lays the golden egg. The 
minority who see clearly enough what is happening are outvoted at 
the polls. Such is the course of democracy. 

The General Welfare 

The federal government has also assumed enormous powers 
through a distortion of the phrase ''the general welfare." In the first 
Congress, in 1789, a bill was introduced to pay a bounty to fishermen 
at Cape Cod, as well as a subsidy to certain farmers. James Madison 
said: "If Congress can employ money indefinitely to the general wel- 
fare, they may take the care of religion into their own hands; they may 
appoint teachers in every state, county, and parish, and pay them out 
of the pubUc treasury: they may take into their own hands the educa- 
tion of children, establishing in like manner schools throughout the 
Union: they may seek the provision of the poor ... [all of which] would 
subvert the very foundations, and transmute the very nature of the 
limited government established by the people of America." 

And so Congress rejected the bill, and Thomas Jefferson said with 
reUef, "This will settie forever the meaning of the phrase general 
welfare,' which, by a mere grammatical quibble, has countenanced the 
general government in a claim of universal power. It is an irony o 
history Li the Hydra that Jefferson thought he had laid to rest has 



230 / JohnHospers 

within our own century grown a hundred new heads, each of them 
aimed at our liberty. 

The Constitution read: "Congress shall have the power to lay and 
collect taxes, duties, imposts and excises, to pay the debts and provide 
for the defense and general welfare of the United States." This meant 
that the national government could raise money only and spend 
money only to carry out its enumerated powers. They thought it ri- 
diculous to construe two words "general welfare" as if they super- 
seded the detailed enumeration of specific powers, rather than as 
merely summarizing them. The two words were always interpreted 
in the latter way by the Supreme Court during the first century and a 
half of American history. Hieir meaning, they held, could be changed 
only by amendment to the Constitution. 

Yet today the amount of transfer payments — to promote "the gen- 
eral welfare" — takes up almost half the budget; more than that, if one 
includes all the entitlement programs. Moreover, the majority of 
Americans apparently consider all these things as their right. Those 
receiving money from the federal government now outnumber those 
who labor to sustain it. The resulting level of taxation, as well as 
national indebtedness, is causing the republic to hemorrhage to death 
in the name of the democracy. 

Market Alternatives 

Without the vast bureaucracy created through the regulatory 
agencies, free-market alternatives could be devised. For example, 
"Building codes and fire codes could presumably be replaced quite 
easily by privately enforced codes drafted by insurance companies. 
Few developers would construct hazardous firetraps if they knew 
beforehand that they could not acquire insuremce for their buildings. 
And as Bernard Siegan brilliantly demonstrated in his 'Non-zoning in 
Houston,'^ egregious, incompatible property uses will not often co- 
habit if land use regulations were summarily abolished. Restrictive 
covenants that nm with the land, renewable at intervals of several 
decades, could very expeditiously insure that a slaughterhouse will 
not locate in the middle of Shaker Heights, Beverly Hills, or Boca 
Raton. If one were so unfortunate as to find one's house suddenly 
within proximity of a noisome chemical plant a remedy would lie in 
nuisance law, for no one has a right to use his property in such a way 
as to adversely affect another's enjoyment of his property."^ 



Freedom and Democracy / 231 
Democracy vs. the Market 

The only thing that can increase a nation's standard of living is 
greater production. And anything that inhibits that production makes 
the nation poorer. If a farmer or manufachirer has part of his output 
taken away from him for distribution to others, he wiU be less moti- 
vated to produce in the fuhire. If he is regulated by men from the 
Department of Agriculhire who trample over his fields to determine 
how much com he has planted, if the factory owner is regularly fined 
for trivial offenses that shouldn't be offenses at all (but are only con- 
trary to rules set up by the government regulatory agency), he will 
sooner or later be forced into bankruptcy or to continue production 
under great difficulties (and higher prices). And if the government 
pays the farmer money to grow or not to grow crops, this increases 
the burden of every taxpayer in the land without any increase of 
production. 

In a democracy, ail such processes are easily sanctioned by popu- 
lar outcries: "He's a profiteer — take it away from him." "He's getting 
too much — give it to us." People who haven't succeeded, or weren't 
willing to make the sacrifices he made, will do all they can to take it 
away from him after he has succeeded. A democracy easily becomes 
dominated by the morality of envy. A fickle mob, unaware of the facts 
of basic economics, but easily swayed by demagogues demanding as 
their right the fruits of the labor of others, can easily bring about the 
passage of laws which will inhibit production, destroy the free market, 
and in the end lead to such shortages and bottlenecks in production 
that they result, just as Plato said, in riots, calls for "law and order," 
and dictatorship. 

Only a republic, in which the powers of the goverrmient are consti- 
tutionally limited, can avoid this fate. That is why the Founding Fa- 
thers were careful to create this nation as a republic, so that each 
person could determine his own destiny and not have it determined 
by others, whether by the tyranny of one (dictatorship) or of a few 
(oligarchy), or of many (democracy). "It is the blessing of a free people, 
not that they live under democratic government, but that they do 
not."io 

If the return to a republic is not achieved, Alexis de Tocqueville's 
prediction of a century and a half ago may yet come true: that the 
American government wiU become for its citizens "an immense and 
tutelary power, which takes upon itself alone to secure their gratihca- 
tions, and to watch over their fate. ... For their happiness such a gov- 
ernment willingly labors, but it chooses to be the sole agent and the 



232 / JohnHospers 

only arbiter of that happiness: it provides for their security, foresees 
and supplies their necessities, facilitates their pleasures, manages their 
principal concerns, directs their industry, regulates the descent of 
property, and subdivides their inheritances — ^what remains, but to 
spare them all the care of thinking and all the trouble of living? . . . The 
will of man is not shattered, but softened, bent, and guided; men are 
seldom forced by it to act, but they are constantly restrained from 
acting; such a power does not destroy, but it prevents existence; it 
does not tyrannize, but it compresses, enervates, extinguishes, and 
stupefies a people, till each nation is reduced to nothing better than a 
flock of timid and industrious animals, of which the government is the 
shepherd/'ii 

Indeed, it is not difficult to make a case for the view that what 
Tocqueville predicted has already come to pass. 

1. See S. I. Benn and Richard Peters, Social Principles and the Democratic State (Lon- 
don: Allen & Unwin, 1959), Chapter 15. Also published as Collier-Maonillan paperback 
entitled Principles of Political Thought. 

2. Plato, The Republic, translation by Francis M. Comford (London: Oxford Univer- 
sity Press, 1941), pp. 195-6. 

3. Rose Wilder Lane, The Discovery of Freedom (New York: Amo Press, 1943), pp. 
207-8. 

4. Rose Wilder Lane, op. cit., p. 203. 

5. Newton Garber, Of Men and Not of Law (Greenwich, Conn.: Devin- Adair, 1%2), 
pp. 13 ff. See also Philip Kurland, ed.. The Supreme Court and the Constitution (Chicago: 
University of Chicago Press, 1960), and the recent t)ook by Henry M. Holzer, Sxveet Land 
of Liberty? (Costa Mesa, Calif.: Common Sense Press, 1983), for many other examples. 

6. On the so-called energy crisis, see for example C. V. Myers, Money and Energy 
(Darien Conn.: Soundview Books, 1980), and Lindsey Williams, The Energy Non-Crisis 
(Wheatridge, Colo.: Worth Publishing Co., 1980). 

7. Dan Smoot, The Business End of Government (Belmont, Mass.: Western Islands, 
1973), p. 83. See also Alan Stang, The Oshacrats (from the same publisher). 

8. Bernard Siegan, "Non-Zoning in Houston," Journal ofLmv and Economics, Vol. 13 
(1970); and hand Use without Zoning (Lexington Books, 1972), Chapter 2. 

9. Ellen Frankel Paul, "On Three 'Inherent Powers of Government,'" The Monist, Vol 
66, No. 4 (Oct. 1983), pp. 539-40. 

10. Richard Taylor, "The Basis of Political Authority," The Monist, Vol. 66, No. 4 
(Oct. 1983), p. 471. See also Richard Taylor, Freedom, Anarchy, and the Law (Prentice-Hall, 
1973). 

11. Alexis de Toqueville, Democracy in America, pp. 579-80 of the edition edited by 
Henry Steele Commager, 1946. 



Reasserting the Spirit of 76 
by W. H. HiUendahl 



A fresh spirit of change is in the air. It has swept into the Office 
of President a man who, as the Governor of California, has shown his 
dedication to the principles of limited government. It has carried into 
ascendancy in the halls of Congress men who by their records have 
demonstrated their commitment to support constitutional principles 
which were designed to protect individual liberty. 

Let us seek the roots of that spirit. Perhaps we may find the key 
to curing what the late Dean Clarence Manion termed ''Cancer in the 
Constitution."! 

An examination of the Declaration of Independence will produce 
several important clues: "(Men) are endowed by their Creator with 
certain unalienable rights . . . among these are life, liberty and the 
pursuit of happiness — [T]o secure these rights governments are in- 
stituted . . . deriving their just powers from the consent of the gov- 
erned." Government is to be founded on principles and its powers 
organized in such form "most likely to effect safety and happiness." 

Men capable of expressing thoughts such as these had of necessity 
developed an inbred sense of self-reliance. They were God-fearing, 
Bible-reading people who were accustomed to taking responsibility 
for their own actions. Whence would they likely receive guidance for 
these ideas of liberty? We know they invariably looked to the Bible as 
the source of inspiration and direction. So let us follow their steps. 

James, the President of the church at Jerusalem, was eloquent in 
translating the spirit of the Old Testament law into Christianity. In 
Chapter 1:25 he wrote: "But whoever looks into the perfect law of 
liberty and abides in it is not merely a hearer of the word which can 
be forgotten, but a doer of the work, and this man shall be blessed in 
his labor. "2 In Chapter 2:11, James admonished those who have bro- 
ken the commandments: "You have become a transgressor of the law 
... so speak and act as men who are to be judged by the law of 
liberty."^ This clearly denotes that individuals are to be held respon- 



Mr. HiUendahl, a retired bank officer, was a long-time member of FEE's Board of 
Trustees. This article was originally published in the March 1981 edition of The Freeman. 



233 



234 / W.H. Hillendahl 

sible for their choices and actions. Irresponsible actions are to be 
judged accordingly. 

Paul wrote from Corinth encouraging the Galatians to maintain 
Christian liberty. Chapter 5:1, "Stand firm therefore in the liberty with 
which Christ has made us free, and be not harnessed again under the 
yoke of servitude." In Romans 8:21 we find that servitude is the bond- 
age of corruption. Then in Galatians, Chapter 5:13 and 14, "For my 
brethren you have been called to liberty, only do not use your liberty 
for an occasion to the things of the flesh, but by love serve one another. 
For the whole law is fulfilled in one saying that is: You shall love your 
neighbor as yourself." Underlying liberty is freedom of choice. We are 
admonished to make only responsible choices. Our actions should 
focus on service rather than on the accumulation of wealth as an end 
in itself. To live within the laws of the Commandments also includes 
the prohibition of making laws which institutionalize greed, envy, 
lust, or coveting of property. So herein is the spirit of the law. 

The Purpose of Law 

As to the purpose of law, we may turn to the great English judge. 
Sir William Blackstone, who said "The principal aim of society is to 
protect individuals in the enjoyment of those absolute rights which 

were vested in them by the immutable laws of nature The first and 

primary end of human laws is to maintain and regulate those 'abso- 
lute' rights of individuals."^ Frederic Bastiat, a Frenchman, wrote in 
The Law: "We hold from God the gift which includes all others. This 
gift is life — physical, intellectual and moral life Life, faculties, pro- 
duction — in other words, individuality, liberty, property — this is man. 
And in spite of the cunning of artful political leaders, those three gifts 
from God precede all human legislation, and are superior to it. 

"Life, liberty and property do not exist because men have made 
laws. On the contrary, it was the fact that life, liberty, and property 
existed beforehand that caused men to make laws in the first place — 
The law is the organization of the natural right of lawful defense. It is 
the substitution of a common force for individual forces. And this 
common force is to do only what the individual forces have a natural 
and lawful right to do; to protect persons, liberties, and properties; and 
to maintain the right of each, and to cause justice to reign over us all."^ 

Constitutional Law — Power to the People 

In the United States Constitution we find a codification of the 
Biblical laws. It provided for the protection of life, liberty, property. 



Reasserting the Spirit of 76 / 235 

and the pursuit of happiness. It provided for the freedom of choice of 
individuals with impUed self-responsibility for their actions, and the 
protection of individuals against those who would abridge or infringe 
those rights. A society wherein individuals are free to choose requires 
a government supported willingly by the consent of the governed. 
Individuals who choose to be free must be wiUing to support laws 
which protect the rights of all others who choose to be free. This 
constitutes a free and open society wherein each can choose to serve 
God and mankind in the ways of his own choice, free from the will of 
others. 

At the same time, the men who drafted the Constitution accepted 
the fact that individuals are corruptible. They are subject to tempta- 
tion; they can be envious, and greedy; they may steal, or covet prop- 
erty. As someone has said, each man has his price, and it is indeed a 
rare individual who is totally incorruptible, given the opportimity to 
gain power. So the principal concern of the Framers was how to de- 
velop a legal framework that would prevent corruptible individuals 
or groups from acquiring power to infringe on the rights of other 
individuals. The key word is power. The division of power, fragmenta- 
tion of power, and the checks and balances of power extend through 
the entire fabric of the Constitution. A horizontal division of power 
was provided in the form of legislative, executive, and judicial separa- 
tion. A vertical division of power appears in the form of the federal, 
state, and local governments. The goal was to limit opportunities to 
concentrate powers taken from the people. 

Limiting the Government 

The Bill of Rights includes a set of specific "thou shalt nots" which 
were designed to constrain the federal govemment from infringing 
on specific individual rights. In substance, the Constitution is a docu- 
ment which was designed to hold in chains the powers and authority 
of the federal govemment along with those who would use govem- 
ment to further their own ends. 

For such a system to survive requires a continual effort toward 
maintaining the distribution and balance of power at all times. During 
a speech in Ireland on July 10, 1790, John Curran warned, "The condi- 
tion upon which God hati\ given liberty to man is eternal vigilance." 

The guarantees of "freedom to"— to choose, to try and to fail-nzan 
only be made under a govemment which is restricted from interfermg 
with individual choices. In contrast, the constitution of the Soviet 
Union and the United Nations charter are vehicles of unlimited power. 



236 / W.H. Hillendahl 

Their goals of "freedom from" — from war, disease, want, unemploy- 
ment, and the like — can only be enforced by an unlimited central 
authority and bureaucracy. 

Being aware that neither the Constitution nor statutory law can 
ever change the nature of man, nor force him to be what he cannot or 
will not be, we may ask how successful were the framers of the Consti- 
tution. We live in an imperfect world. It is an imperfect Constitution 
and we are imperfect individuals. Yet for nearly two centuries with 
freedom of opportunity the people of the United States increased their 
standard of living more rapidly than did those of any other nation in 
the world. Given the choice, the acid test is whether one would rather 
live in the United States or somewhere else in the world. The vast 
influx of legal and illegal aliens speaks for itself. 

The Problems of Government — Man Was Made Vain 

Yet we are troubled today; inflation, unemployment, economic 
instability, housing shortages, high taxes, high interest rates, are but a 
few of our problems. How do the conditions underlying the problems 
of today compare with the concerns and grievances of the Founding 
Fathers? Let's look again at the Declciration of Independence. The 
signers were concerned about "relinquishing the rights of representa- 
tion in the legislature." Today we are concerned about centralized 
government and administrative law. 

In 1776 they were concerned about being "exposed to dangers of 
invasion from without and convulsions from within." Increasing num- 
bers today are concerned about our defense posture today and the 
problems of internal unrest. 

They complained that "judges were dependent on the will (of the 
King) for tenure of their offices." Today's judges cire political appoint- 
ees who, to a significant extent, legislate according to their ideologies 
rather than seek precedent for decisions. 

The Founders were concerned about "a multitude of new offices/' 
and we are concerned about burgeoning bureaucracy. 

They were concerned about "imposing taxes without our con- 
sent." Who isn't concerned today about high taxes, with our consent 
or otherwise? 

They were concerned about "deprived . . . benefits of trial by jury." 
Today administrative law has gone a long way to the same end, and 
has altered fundamentally the forms of government. 

They complained about exciting "domestic insurrections among 
us." Today who is not concerned about crime and personal safety? 



Reasserting the Spirit of 76 / 237 

The very survival of our system is threatened by the encroachment of 
a totalitarian ideology. 

Are we not faced again today with the problems of 200 years ago? 
We are in fact encountering an ageless collision with a destructive 
ideology. Paul wrote in his letter to the Romans 8:20, 21, 'Tor man 
was made subject to vanity. . . /' (Definitions of vanity include ''in- 
flated pride of one's self" or "emptiness, worthlessness." We may 
ponder the significance of this polarity of meaning.) "For man was 
made subject to vanity, not willingly, but by reason of him who gave 
him free will in the hope that he would choose rightly. Because man 
himself shadl be delivered from the bondage of corruption into the 
glorious liberty of the Children of God." 

Or perhaps more clearly, man (of) himself shall be delivered 

Man only by his own choice of responsible thoughts and actions can 
achieve the soul growth that is required to achieve grace, and entrance 
into the Kingdom of God. 

But in fact, has he chosen "rightly"? In spite of the commandment 
"Thou shalt not covet thy neighbor's property," we have permitted 
laws to be passed which, taken all together, confiscate almost half of 
our neighbor's property via taxes in the vain concept of doing good. 
These vain thoughts manifest in a number of syndromes: 

• The "welfare" syndrome which enforces the privilege of the 
few at the expense of the rights of the individuals who con- 
stitute the body politic. 

• The "free lunch" syndrome which looks on dollars sent 
from Washington as free. If we don't get them, someone else 
will. 

• The "meddling in the affairs of others" syndrome in which 
individuals feel compelled to attempt to solve the problems 
of others rather than minding their own business and con- 
centrating on solving their own problems. 

• Similarly, the "let George do it" syndrome considers today's 
problems to be too complex to be solved equitably at the 
state or local level— they must be sent to Washington. 

• The "exploitation" syndrome in which the producers in so- 
ciety are held to have victimized those less stationed. There- 
fore the producers must be chained with regulations and 
their ill-gotten profits must be taxed away. 

• The "victims of society" syndrome maintains that cnmma^ 
are the innocent victims of society-they cannot be held 
responsible for their crimes or misdeeds; therefore they 



238 / W.H. Hillendahl 

must be pampered and "rehabilitated" rather than pun- 
ished, while many live in fear that they may be the next 
victims. 
• Finally, the "homogenized milk" syndrome which is de- 
stroying all natural affinity groups and is forcing all people 
to live and work together on the basis of a "social adjust- 
ment" formula of equality based on race, color, creed, or 
whether one fancies dogs, cats, horses or, white rats. 

These syndromes are all manifestations of an ideology that is 
anathema to liberty. They reflect the attitude of those who lack faith 
in the ability of each individual to solve his or her own problems; 
hence, a forced redistribution of society is necessary to overcome mal- 
adjustments. 

The thermometer of a redistributive society is what? Inflation. 
Inflation is a measure of the maldistribution of wealth via govern- 
ment — ^no more, no less. The underlying motivating forces and the 
mechanics of inflation are complex and widely misunderstood. Yet 
no one in good conscience can deny the necessity to help those who 
are in a condition of misfortune. However, today much redistributed 
wealth is going to those who have established vested positions of 
privilege. The consequence is that regardless of how legitimate a given 
cause may be, the total burden of aggregate causes on the nation has 
exceeded the carrying capacity of its productive resources to the point 
where inflation is an unavoidable condition. The problem goes far 
deeper than any transient federal administration, its roots extend back 
through decades. Inflation is the manifestation of vain thoughts and 
ideas applied cumulatively since the Civil War. It represents the mis- 
application of free will and an accumulation of a vast number of 
wrong choices. 

The Redistribution of Power 

What have been the mechanics of change wherein these false doc- 
trines have gained ascendancy? 

Dr. Cornelius Cotter, Professor of Political Science at the Univer- 
sity of Wisconsin, appeared before a special Senate committee in April, 
1973.^ He remarked: "You know. Senator Mathias, it has been said — 
and, I think wisely so — that if the United States ever developed into a 
totalitarian state we would not know it. We would not know that it 
had happened. It would be all so gradual, the ritualism would aU be 
retained as a facade to disguise what had happened. Most people in 



Reasserting the Spirit of 76 / 239 

the United States, in official position, would continue to do the sorts 
of things that they are doing now. The changes would have all been 
so subtle although so fundamental that people generally would be 
unaware." 

Senator Church responded, "That is the way it happened 
in Rome, is it not?" 

Dr. Cotter: "Indeed." 

Senator Mathias: "No Roman was more deferential than 
Augustus." 

Dr. Cotter: "Exactly." 

Senator Church: "And kept the Senate happy, although 
the Senate had lost its power." 

So this age-old collision of ideas is producing very subtle changes 
in the power structure of the United States. The mechanism of change 
involves power, its balance and the concentration. Four simultaneous 
flows have been underway for a century: (1) Power from the Congress 
to the Executive Br2mch, (2) power from the Congress to the Supreme 
Court, (3) power from the states to the federal government, and (4) 
power from individuals to the government. 

Judicial Abuses 

Let's examine some of these flows of power. First, the Supreme 
Court. The Bill of Rights expressly forbids the federal government to 
interfere with the fundamental personal liberties of individuals in this 
society. That's clear enough. As an outfall of the Civil War, the Four- 
teenth Amendment was adopted in 1868. This amendment forbids the 
states to interfere with the rights of the people. However, it had a 
devious intent, namely to give Congress control over the people of the 
South. But in 1873 the Supreme Court thwarted that intent in the 
"Slaughterhouse Cases." For half a century an ideal sihiation pre- 
vailed in which both the federal government and the states were con- 
strained by the Constitution and its amendments from interfering with 
the liberties of the people. 

However, in more recent years a subtle but profound change has 
been effected by the Supreme Court. Dean Clarence Mamon wrote, 
"For the 32 years of service together on the Supreme Court, Justices 
Black and Douglas have been repetitiously citing each odier as author- 
ity for a gross and grahiitous misconstruction of the First ana i4m 
Amendments."^ 



240 / W.H. Hillendahl 

"The accumulation of these malignant constitutional misconstruc- 
tions of the first eight amendments with the 14th has placed a cancer 
near the heart of our constitutional system which is proliferated with 
each successive term of the United States Supreme Court. "^ Essen- 
tially, today the Court has legislated its jurisdiction over the rights of 
people by effectively merging the Bill of Rights into the Fourteenth 
Amendment and reversing its position in 1873. 

The specific consequences of the Black and Douglas decision were 
highlighted in an editorial which appeared in the San Diego Union: 
"The United States Supreme Court has returned three more decisions 
drastically altering the pattern of American life. 

"For more than 15 years now the Court has been steadily rewriting 
the laws and reinterpreting the Constitution to suit the ideologiccd 
bias or judicial whinis of its members — 

"In recent days the Supreme Court has ridden over states' rights 
abolishing residency requirement for relief, sidestepped a ruling in a 
case of burning the American Flag, and placed further restrictions on 
law enforcement by freeing a convicted rapist because the police took 
his fingerprints in some legal hocus-pocus — 

"... Court majorities in those 15 years have returned more than 
30 decisions . . . have brought about basic and often demoralizing 
changes in the fields of politics, criminal procedure, religion, race rela- 
tions, subversion and communism, antitrust laws and obscenity. 

"The Court has told the states how they are to portion their legisla- 
tures, granted avowed Communists the run of defense plants; made a 
criminal's confession almost impossible to use; approved even second- 
ary school demonstrations against the South Vietnam war; banned 
prayers or reading of the Bible in public classrooms; ruled that pass- 
ports caimot be withheld from Communists just because they are 
Communists; and held that deserters from the armed forces, even in 
wartime, cannot be stripped of citizenship 

"In the notorious Keylishian case, a majority opinion held that a 
college professor may not be dismissed for teaching cind advocating, 
in college, or anywhere, the overthrow of our government by force 

and violence ^ The Court, once the ultimate in both prudence and 

jurisprudence, is now the darling of the liberal radicals; it has done for 
them what the Congress has refused to do.''^^ 

This is a most concise sunmiary of the consequences of the Court's 
abrogation of states' rights and the jurisdiction of Congress. 



Reasserting the Spirit of 76 / 241 
Courts Take Charge as Congress Forfeits Control 

At this point, the more perceptive will grasp the real issue which 
underlies the polarization of the nation concerning the Equal Rights 
Amendment. Under the facade of women's rights, the real objective 
is to deliver the jurisdiction for defining the rights of all individuals 
into the hand of a congress which has already defaulted its jurisdiction 
to the legislative whims of the Supreme Court. At the heart of the 
opposition to ERA are those who recognize its passage would give 
validity to the Supreme Court's abridgement of the Bill of Rights, and 
encourage further intrusions into the private affairs of individuals. 

As a curtain over these actions, a myth has been erected which 
holds that Supreme Court decisions are the "Law of the Land." It 
presumes that once the Court takes a position on a case, every similar 
case would be adjudged that way. In actuality, each ruling is the "law 
of the case." It is possible for a court, made up of the same or different 
justices, to arrive at a different interpretation if it were to rule on a 
similar case. 

Under a second myth, the prevailing belief is that Congress has 
no control over the Supreme Court, hence, Congress has no way to 
redress the sorties of the Court into the legislative arena. Such an 
alleged lack of control is far from fact. Congress enacted the first 
Federal Judiciary Act in 1789 and this act has been employed to apply 
its unquestioned constitutional power over the jurisdiction of all Fed- 
eral courts. 

The Congress by a wide margin recently voted to deny the Su- 
preme Court the right to spend appropriated funds to conduct hear- 
ings into school busing cases, in effect, denying the court jurisdiction. 

Dean Clarence Manion of Notre Dame held that a major step will 
be taken toward rectifying the consequences of the Court's unconstitu- 
tional decisions when the Congress restricts, abolishes or controls se- 
lected types of appellate jurisdiction of both the Supreme Court and 
all other Federal Courts.^^ A federal court system comprised mainly 
of judges and justices who are committed to upholding the original 
tenets underlying the Constitution, can do a great deal to curb the 
judicial misuses and excesses which have prevailed in recent years. 

Legislative Abuses 

For many decades the Supreme Court routinely struck dov\^ as 
unconstihitional various acts passed by Congress which mfrmged on 



242 / W.H. Hillendahl 

the Bill of Rights. However, over the last two decades the Congress, 
taking its cue from the Black-Douglas Supreme Court decisions, has 
enacted a number of bills which have intruded ever-increasingly into 
those rights which were originally held to be out of bounds. These 
intrusions are being felt by the public in their opportunities for em- 
ployment, work environment, on the highway, in the air, while shop- 
ping and banking, in schools, among family relations and in the home. 
While obviously accomplishing some benefits, the bulk of this legisla- 
tion has been undertaken in response to the highly vocal, sometimes 
rowdy, pressure of special-interest groups. In the main, these intru- 
sions have caused vast ntimbers of people to become outraged, resent- 
ful, and rebellious. 

In its attempts to legislate social justice and equality, the Congress 
has cut to the core of the mores of the incredibly complex but generally 
balanced and tolerant American society. 

The wisdom of those who insisted on including the Bill of Rights 
in the Constitution is gradually seeping into the subconscience of all 
but the most hardheaded advocates of reform by coercion. It would 
be a wise Congress indeed that undertook to reverse or modify these 
imconstitutional intrusions which prior congresses have made over 
the years. 

Executive Abuses 

The scope of the powers of the executive branch has been ex- 
panded enormously, particularly in recent years. Authority of the of- 
fice of the President has increased while departments, commissions, 
boards and agencies have proliferated. 

Professor Cotter and Professor J.M. Smith determined that the 
powers entrusted by Congress to the Executive Branch can be group>ed 
in four categories: (1) Powers over persons, (2) powers to acquire 
property, (3) powers to regulate property, and (4) control of communi- 
cations. ^^ 

Executive Orders: The President normally employs Executive Or- 
ders to implement the efficient conduct of the daily routines of the 
office.^3 However, several presidents have employed Executive Orders 
to conduct international relations and to effect legislation. 

For example. President Roosevelt used an Executive Order in 1933 
to establish diplomatic relationships with the Communist regime in 
Russia at a time when it was unlikely that such action by Congress 
would have been supported by a consensus of the people. 

Under the pressure of time, the President has employed emer- 
gency orders properly in the declaration of national emergencies. 



Reasserting the Spirit of 76 / 243 

However, one would beUeve that matters as basic as the legal frame- 
work for the conduct of government under such national emergencies 
would be given extensive examination by the Congress in the process 
of passing suitable laws. Such is not the case. 

President John F. Kennedy issued a series of Executive Orders in 
1962 which established a comprehensive legal framework to deal with 
any national emergency as defined by the President or the Congress.^^ 
On its face, this would appear to have constituted an imwarranted 
intrusion into the legislative process. 

On October 11, 1966, President Lyndon Johnson issued Executive 
Order 11310 which continued the process by transferring the authority 
granted under the emergency orders from the Office of Emergency 
Planning to the E>epartment of Justice. 

President Richard Nixon also gave attention to updating the emer- 
gency orders while in office. 

Early in the 1970s Congress became sufficiently concemed about 
the existence of national emergencies that the Senate established a 
Special Committee on the Termination of the National Emergency. ^^ 
Tliis led in 1976 to the passage of the National Emergencies Act.^^ This 
act terminated all existing declared emergencies and established pro- 
cedures and limits for the declaration of future national emergencies. 

The matter took on new impetus when, on July 20, 1979, President 
Jimmy Carter issued two new Executive Orders: 

(1) E.0. 12148 Federal Emergency Management, which authorized 
a thorough overhaul of both civil and war emergency procedures and 
placed them under a newly created Federal Emergency Management 
Council. 

(2) E.0. 12149 Federal Regional Councils, which established coun- 
cils for ten standard federal regions, their principal function being to 
implement federal programs. 

Taken separately or together these Executive Orders provide 
wide-ranging ramifications when analyzed from the point of view of 
the powers delegated to these Councils. While these struchires may 
be thought of as logical provisions for the implementation of federal 
poUcy, increasing numbers of states are taking the position that^Re- 
gional Councils constitute a major intrusion into their autonomy.^ 

Such widespread reaction would lead one to conclude that a deep 
rift has developed in the power structure as a consequence of the 
thrust underlying these Executive Orders. As a consequence of these 
and other Executive Orders, a broad review by Congress of their use 
and abuses should lead to establishing guidelines which defme appro- 
priate uses of Executive Orders by the Executive Branch. 



244 / W.K Hillendahl 

Administrative Law: The myriad of statutes, regulations, and 
codes by whic±i the various departments and bureaus of government 
administer their operations under the Executive Branch constitute ad- 
ministrative law. In large part they are established to implement de- 
tails of the broad language of the acts of Congress. These regulations 
are essential to the smooth and orderly functioning of government. 

Nevertheless, the structure of departments which combines execu- 
tive, legislative, and enforcement or judicial functions, provides a con- 
centration of power and authority which lends itself to potential bu- 
reaucratic abuses. Among many possible examples, congressional 
hearings have revealed that the detailed statutes developed in admini- 
stering the Occupational Safety and Health Act (OSHA) went far be- 
yond the intent of the act, and provided the basis for executive abuses 
and deliberate harassment, in particular of small business. Many are 
aware of instances in which the Antitrust Division of the Justice De- 
partment, using the charge of conspiracy and restraint of trade, has 
imposed fines and /or jail sentences tiiough the accused firms and their 
officers were innocent. These firms chose to make payment under a 
plea of nolo contendre because the legal fees required to establish their 
innocence would exceed the fine. 

Administered properly, government agencies should facilitate 
trade and conunerce, and protect the various interests of the people. 
At best, administrative law can only regulate, prohibit, or constrain 
individuals or groups from imposing on the rights of others. However, 
in increasing numbers of cases the bureaucracy has gone far beyond 
its legitimate functions. One may find dozens of magazine and news- 
paper articles reciting wasteful or counterproductive bureaucratic ac- 
tivities, and arrogant abuses of power. 

Today the friction and costs to society of the bureaucracy have 
reached destructive proportions. These excesses must be brought 
again under control. The implementation of reforms is too broad a 
subject to address here. A comprehensive report by the Heritage Foun- 
dation^s has recommended a broad platform of reforms to President- 
Elect Reagan "to roll back big government." Included are sf>ecific rec- 
ommendations concerning Executive Orders and administrative law. 
Implementation of these recommendations should go a long way in 
restoring a proper balance of power. 

Revitalizing the American Dream 

The foregoing are but a few examples of the restructuring of 
power which has been achieved during the last century. They have 



Reasserting the Spirit of 76 / 245 

been selected to Ulustrate the vast departure from the spirit in which 
the Constitution was written some 200 years ago. As a consequence, 
people in all walks of life— both the providers and the recipients of 
government aid — are hurting as they have never hurt before. The 
thermometer— inflation— shows that the waters of our economic and 
political environment are approaching the boiling point. Not one 
amongst us is immune to the heat. 

In the face of these adversities, a new spirit is emerging in the land. 
The new religious revival extending from neighborhoods to nation- 
wide television is a new expression of the old Spirit of 76. People are 
going back to basics. They are thinking, questioning, and organizing.^^ 

The overwhelming choice by the electorate of a new administra- 
tion dedicated to redressing these abuses of power is a manifestation 
of the revival of the spirit. 

The retirement of many congressmen who have aided and abetted 
this misdirection of power, together with the election of other con- 
gressmen who affirm the original precepts of the Constitution are 
further manifestations of the spirit. 

Yet this is only a beginning. We must not expect miracles from any 
administration, nor can any of us escape the painful process of read- 
justment. We are presently in a position to achieve a victory in this 
battle. But the foes in the ageless war for the minds of men are not to 
be easily vanquished. It will require years of unrelenting effort to 
overcome the damages which have been incurred by the Republic. 

We know in our hearts that cold, impersonal welfare will never 
succeed loving charity. Government can never provide security to 
replace self-reliance. No government can accomplish those things we 
must do for ourselves if our souls and spirits are to expand. If we are 
to restore the American dream we must never again become compla- 
cent and allow ourselves to be overridden by those who are in a vain 
quest for false goals. 

Let us again restore the balance between spiritual and material 
values. The institutions of church and state are inseparable, they are 
as inseparable as two ends of a rope, each is a manifestation of the 
spirit and substance of society .20 We may recaU that the spirit of Uberty 
was heralded from every pulpit during our Revolutionary War. I 
maintain that Spirit of 76 has never reaUy disappeared, we have sim- 
ply allowed it to become encrusted with false doctrine. 

Paul offered words of encouragement: ''Stand firm therefore m 
Uberty with which Christ has made us free. Be not harnessed agam 
under the yoke of servitude ... the bondage of corruption." James 
urged us: "So speak and so act as men and women who are to be 



246 / W.H. Hillendahl 

judged by the law of liberty." Let freedom-loving individuals prevail 
by reasserting the Spirit of '76. 

1. Clarence E. Manion, Cancer in the Constitution (Shepherdsville, Ky.: Victor Pub- 
lishing Company, 1972). 

2. Holy Bible, trans., George M. Lamsa (Philadelphia: A. J. Holman, 1957). This 
version is translated into English form the Aramaic, the language of Jesus and is recog- 
nized for accuracy and clarity of expression. 

3. The Law of Liberty within the context of Bible usage expresses freedom of choice 
with consequence. All thoughts and actions cause reactions for which we are to be held 
accountable. The Law of Liberty is the Christian counterpart of the Sanscrit term. Karma. 

4. James Mussatti, The Constitution of the United States, Our Charter of Liberties 
(Princeton: D. Van Nostrand Co., Inc., 1960), p. 9. 

5. Frederic Bastiat, The Law, trans. Dean Russell (Irvington-on-Hudson N.Y.: The 
Foundation for Economic Education, Inc., 1950), pp. 5, 6, 7. {The Law was first published 
as a pamphlet in June 1850.) 

6. U. S. Congress, Senate Special Conunittee on the Termination of the National 
Emergency, National Emergency, Part 1 Constitutio?ud Questions Concerning Emergency 
Powers, Hearings before the Special Committee of the Senate, 93rd Cong., 1st sess., 
April 11, 12, 1973, p. 29. 

7. Manion, p. 33. 

8. Ibid., p. 35. 

9. As a consequence of this Supreme Court decision, by 1975 an estimated 2,000 
campus "radical economists" who "respect the point of view of Mao" and who believe 
in "a socialism of affluence" were members of the Union of Radical Political Economists. 
{Los Angeles Times, December 21, 1975). 

10. San Diego Union, April 28, 1%9. 

11. Manion, p. 27. 

12. C. P. Cotter and J. M. Smith, Poxvers of the President During Crises (Washington, 
D. C: Public Affairs Press, 1960). 

13. Executive Orders are issued by the President, reviewed by the Office of Legal 
Coimsel, and published in the Federal Register. They become law unless rescinded by 
Congress within a specified period of time. 

14. Executive Orders including numbers 10995, 10997, 10998, 10999, 11000, 11001, 
11002, 11003, 11004, 11005, and 11051 define procedures during war, attacks, or other 
emergencies for executive control of communications, energy, food and farming, all 
modes of transportation, civilian work brigades, health, education and welfare func- 
tions, housing, public storage, and so on. 

15. U.S. Congress, Senate, National Emergency. 

16. National Emergencies Act, U.S. Code, vol. 50, sec. 1601-51 (1976). 

17. Extensive hearings on regional governance have been conducted by legislative 
committees in a score of states. The proceedings of these hearings appear in bulletins 
published by the Committee to Restore the Constitution, Inc., Fort Collins, Colorado. 

18. Charles Heatherly, ed. Mandate for Leadership (Washington, D.C.: Heritage Foun- 
dation, 1980). 

19. For an example of grass roots organization see "The Pro-Family Movement: A 
Special Report" in Conservative Digest 6 (May /June 1980). 

20. Into the artfully contrived rift between church and state has been driven the 
wedge of Humanism. According to the book The Assault on the Family, "As a religion. 



Reasserting the Spirit of 76 / 247 

Humanism demands the end of all religions that are God oriented, and the abolition of 
the profit-motivated society, so that a world Utopian state may be established which 
will dictate the distribution of the means of life for everyone." See "Our Last Opportu- 
nity" in Don Bell Reports, November 13, 1980. 



VI. EPILOGUE 



On the Destiny of Liberty 
by Jackson Pemberton 



The Creator endowed man with the power to perceive and to 
understand his world, the ability and the will to act upon it, and the 
liberty to choose his actions. His discernment and freedom stretches 
from the center of his secret heart to the outermost stars of his celestial 
world, and his decisions determine his destiny. 

Man is a mighty being, capable of unthinkable feats, and that 
wondrous capacity coupled as it is with freedom of his will, favors him 
with the most awesome potentialities. A man may, by learning and 
energy, make himself a god or a devil, to build or to destroy, to 
experience exquisite joys or perverted pleasures. The choice is left to 
each to decide from which cup he shall drink. To make the wise choice 
is to make him more powerful and more free, for that places him in 
harmony with the laws of all Nature and releases his capacity to 
create, which together provide an enduring happiness; but to make 
the choice elicited by the sirens of pleasure and pride is to bind him 
down with the chains of enslaving habit, an afflicted mind, and a 
weakened body. Thus he reaps the just reward of the use of his liberty. 

Every man bears in his breast a spark struck from the soul of 
Almighty God, and in that spark glows the light of love and liberty. 
Every man yearns to be good and to be great, to be a blessing to all 
within the circle of his society; yet there are those who, intoxicated 
with the lust for power and wealth, turn from that divine inheritance 
for the corrupt pleasure of control over their fellows, and gain by their 
loss. Thus has the vanity of kings and despots devoured the lives of 
their poor subjects, and thus began the King of England to feed upon 
our toils and treasures. We repulsed his intrusions and gave you the 
Constihition to protect you from such, for we knew the history of man 
to he overflowing with the tyranny of bad governments. 

In our day the tyrant came to us in open defiance of our rights, 
with hostility and violence, with sword and cannon. Through tears, 
prayer, and blood we threw him off and drove him out. 

Now he is among you again, but not in open war upon your 
houses and lands, but in subtle disguise, bearing gifts of free money, 

™^rticle originaUy appeared in the December 1976 issue of The Freeman. 



251 



252 / Jackson Pemberton 

free food, free houses, and free security; trading them to you in the 
name of equality, rights, and liberty: offering the goods he took from 
you by heavy taxes and a deliberate inflation. With flattering words 
he coddles your vanity, legalizes your selfishness, and leads you 
through a political mirage into his fool's paradise where he has ap- 
pointed himself the Grand Regulator. Yet, your greatest danger lies 
in none of those things, but in your failure to recognize the pattern he 
follows, for it is ancient; what he cannot accomplish by force and 
violence he will attempt by lure and deceit. 

You are now engaged in a mighty conflict: a contest between 
freedom and "free-loading," between liberty and license, and between 
government by the people and government by the government: a 
struggle testing whether you can stand tall enough amidst the turmoil 
to see above the trappings of your proud affluence and catch the vision 
of your own sons of liberty a hundred years hence, moving as free 
beings in a world where free men can labor and draw to themselves a 
portion of this world's blessings and work and live in the safety and 
liberty of their own self-discipline; or whether your appetite and pas- 
sion for the transitory pleasures of your opulence will propel you on 
into the enslaving security of the oppressive government you are al- 
lowing to grow up around you as an angry bramble about the feet of 
the last free people on the planet. 

But for all this, you must be careful to understand me, for I have 
not come to discourage you or to prepare the grave of liberty, but to 
warn and encourage you to be about the work which is to be done 
before all mankind may enjoy the fullness of the rights with which the 
Creator endowed them. For the perfection of human governments was 
conceived in this nation and has been carried in its womb these many 
years, and you now enter into the time of the last travail before it is 
brought forth to all the world; a time in which conspiring men seek 
to destroy it that they might own the glory and riches of the world for 
themselves. 

I have come to you in humility, and I speak from my heart. I have 
raised the cry of freedom and the alarm of oppression in your minds. 
Do not be troubled that I think your lot is destruction, or that you will 
not awake in time to save yourselves. Nay, not that, for I know you, 
and I know you will act in time. The cause of my great concern is my 
love for my children and the knowledge that the slower you act the 
more you will pay for your liberty: a lesson we learned in fear. 

Contrary to your many doubts, it is not inevitable that you must 
go down. Was it inevitable that we should have won our struggle for 
freedom? Nay, 'twas the natural consequence of the pouring out of 



On the Destiny of Liberty / 253 

our purses and our blood, and the intervention of Divine Providence 
in the affairs of His children. You may act in the same faith, with the 
same courage, with the same determination, and with the same assur- 
ance of the same glorious result. 

And I am consoled, for even now the nation is stirring, the desire 
for liberty wells up in the nation's bosom, and the cry of freedom 
whispers in its mind. Nay, I have no fear for your destiny, but I fear 
the price you may pay for it if you hesitate another decade. 

I challenge you to set a noble cause: to set your face, your hand, 
and your heart to the restoration of the Constitution. If you harbor any 
doubt as to the correctness or worthiness of that aim, then search for 
a better goal until you are convinced. Study my words, for I have 
brought you the fund<mientals of good goverrm\ent and laid them 
before you in eaunestness and simplicity. Then set about to apply those 
principles; first in your own lives, then in your towns and cities, then 
your counties and states. Thus you will gain by experience the wisdom 
necessary to fully restore the most effective protector of human rights, 
and the most skilled artisan of noble human progress ever given to 
man for his general government. 

More than any other institute of goveniments, the Constitution 
has guided the virtue of man, discouraged his baseness, and given full 
release to the productive capacity of his talents and energies. When 
you have restored those three functions to your government, you will 
have set the stage for the fulfullment of the manifest destiny of the 
nation. You will have displayed the proper example before the world, 
you will have gone back into an era of social and techrucal progress 
far beyond your fondest dreams, and thus you will be empowered by 
wealth and wisdom to instruct a jealous planet in the way of true 
progress. 

But you live in a day when selfishness is glorified, benevolence 
belittled, and the government enthroned as the patriarchal source of 
all blessings, the healer of aU wounds, the savior of society, a singular 
entity to which one prays for his share of his neighbor's goods. And 
there are many who promote the deception, unwittingly moved by a 
lazy conscience and a selfish habit. And aU are partakers in the delu- 
sion; all are tainted by the hypocrisy of pubHc distribution of private 
production. 

Those who seek to rule you promise to make you happy by cap- 
turing you in their private Utopia; and while their desires may some- 
times be honorable, their theory is dross; and while ^ley know li 
unjust for one to thrust his wiU upon another or to revel m the huits 
of another's toU, yet they refuse to confess the immorahty of their 



254 / Jackson Pemberton 

politics. Yet, notwithstanding their false theories, they will succeed in 
your capture if you allow them to spoil you with promises of wealth 
without labor and security without honor. 

You stand now as at the wye of time. Your mind feels the two 
alternatives before you; you may trade your respect and your freedom 
for a short-lived security and sell your children to the aristocracy, or 
you may work and strive for liberty with honor. In your heart you 
know the right, while the comforts of government welfare and the 
narcotic of a lazy morality woo you to carelessness in the choice. 

How long my children will you halt between? For decades you 
have stood, hoping you might be spared the price of liberty, hoping 
all would be well with you while the ambitious and the vain have 
framed the laws to enforce your happiness. Now as their work nears 
completion, the urgency of their success strikes fear in your hearts 
while their soft promises urge you to sleep. 

How long will you halt between? How high must the cost of 
freedom ascend ere you appreciate its worth and determine to pay its 
price? Can you not perceive that we once made the self-same error 
Must each generation stumble in the same road? Must the cycles of 
history ever turn full round? 

Nay, my children! Not so! This time you may break the ancient 
pattern, for this is the first time and the last time the cycles in the 
nations have all been brought together in step and in time, for now the 
whole world lies in bondage, save a few. But the seeds of liberty 
germinate quickly under the tyrant's heel, and the embers of freedom 
glow brightest in the dark winds of oppression. Now those seeds grow 
and those embers glow, and the people of the earth peer out of dark- 
ness and look for your light! Now you, being free, may lead yourselves 
and them also into the full light of liberty. 

Oh, America! America! May the Almighty look upon you with the 
tenderness of a loving Father. May you look to Him with the faith of 
a chosen child. If you will reach for Him, He will touch you. If you 
will serve Him, He will lift you up. Can you hear my voice? This is the 
message I have come to deliver: I challenge you, each and every one 
of you, to listen to the humility of your own heart, for it will guide you 
back to the glorious liberty which is your rightful inheritance if you 
will but qualify yourself by obedience to the voice of your own con- 
science. If you will listen and follow, the light of liberty will shine 
again in your face, and the nation will shine forth in a world darkened 
by the tyranny of despots and evil politicians. Rise up my people! 
Take your proper place in the progress of freedom! 

If you will be faithful to your own hearts and the blood of your 



On the Destiny of Liberty / 255 

fathers, you may have the privilege of being the political saviors of the 
world, not by coercion or conspiracy but by example and precept. 
That is your challenge and your duty, your opportimity and your 
blessing. And that is the true destiny of liberty. I know it; and there is 
not one of you who does not in his own heart know it also. Then — ^my 
Sons of Liberty — be true to it! Farewell! 



APPENDIX 



I 



The Virginia Declaration of Rights 
1776 



A declaration of rights made by the representatives of the good people of 
Virginia, assembled in full and free convention; which rights do pertain to 
them and their posterity, as the basis and foundation of government. 

1. That all men are by nature equally free and independent, and 
have certain inherent rights, of which, when they enter into a state of 
society, they cannot, by any compact, deprive or divest their posterity; 
namely the enjoyment of life and liberty, with the means of acquiring 
and possessing property, and pursuing and obtaining happiness and 
safety. 

2. That all power is vested in, and consequently derived from, the 
people; that magistrates are their trustees and servants, and at all times 
amenable to them. 

3. That government is, or ought to be, instituted for the common 
benefit, protection, and security of the people, nation, or community; 
of all the various modes and forms of government, that is best which 
is capable of producing the greatest degree of happiness and safety, 
and is most effectually secured against the danger of maladministra- 
tion; and that when any government shall be found inadequate or 
contrary to these purposes, a majority of the community hath an indu- 
bitable, unalienable, and indefeasible right to reform, alter, or abolish 
it, in such manner as shall be judged most conducive to the public 
weal. 

4. That no man, or set of men, are entitled to exclusive or separate 
emoluments or privileges from the community, but in consideration 
of publick services; which, not being descendible, neither ought the 
offices of magistrate, legislator, or judge to be hereditary. 

5. That the legislative and executive powers of the state should be 
separate and distinct from the judiciary; and that the members of the 
two first may be restrained from oppression, by feeling and participat- 
ing the burthens of the people, they should, at fixed periods, be re- 
duced to a private station, return into that body from which they were 
originally taken, and the vacancies be supplied by frequent, certam, 
and regular elections, in which all or any part of the former members 
to be again eUgible or ineUgible, as the laws shall direct. 

6. That elections of members to serve as representatives of the 



259 



260 / Appendix 

people in assembly ought to be free; and that all men having sufficient 
evidence of permanent conunon interest with, and attachment to the 
commimity, have the right of suffrage, and cannot be taxed or de- 
prived of their property for publick uses, without their own consent, 
or that of their representatives so elected, nor bound by any law to 
which they have not, in like manner, assented for the public good. 

7. That all power of suspending laws or the execution of laws by 
any authority, without consent of the representatives of the people, is 
injurious to their rights, and ought not to be exercised. 

8. That in all capital or criminal prosecutions a man hath a right 
to demand the cause and nature of his accusation, to be confronted 
with the accusers and witnesses, to call for evidence in his favor, and 
to a speedy trial by an impartial jury, of his vicinage, without whose 
unanimous consent he cannot be found guilty; nor can he be com- 
pelled to give evidence against himself; that no man be deprived of his 
liberty, except by the law of the land or the judgment of his peers. 

9. That excessive bail ought not to be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted. 

10. That general warrants, whereby an officer or messenger may 
be commanded to search suspected places without evidence of a fact 
committed, or to seize any person or persons not named, or whose 
offence is not particularly described and supported by evidence, are 
grievous and oppressive, and ought not be granted. 

11. That in controversies respecting property, and in suits between 
man and man, the ancient trial by jury is preferable to any other, and 
ought to be held sacred. 

12. That the freedom of the press is one of the great bulwarks of 
liberty, and can never be restrained but by despotic governments. 

13. That a well-regulated militia, composed of the body of the 
people trained to arms, is the proper, natural, and safe defence of a 
free State; that standing armies in time of peace should be avoided as 
dangerous to liberty; and that in all cases the military should be under 
strict subordination to and governed by the civil power. 

14. That the people have a right to uniform government; and, 
therefore, that no government separate from, or indef)endent of the 
government of Virginia, ought to be erected or established within the 
limits thereof. 

15. That no free government, or the blessings of liberty, can be 
preserved to any people but by a firm adherence to justice, modera- 
tion, temperance, frugality and virtue, and by frequent recurrence to 
fundamental principles. 

16. That religion, or the duty which we owe to our Creator, and 



Virginia Declaration of Rights / 261 

the manner of discharging it, can be directed only by reason and 
conviction, not by force or violence; and therefore all men are equally 
entitled to the free exercise of religion, according to the dictates of 
conscience; and that it is the mutual duty of all to practise Christian 
forbearance, love, and charity towards each other. 



The Declaration of Independence 
In Congress, July 4, 1776 

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 sepa- 
rate 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 separa- 
tion. 

We hold these truths to be self-evident, that all men are created 
equal, that they are endowed by their Creator with certain uncdienable 
Rights, that among these are Life, Liberty and the pursuit of Happi- 
ness. That to secure these rights. Governments an 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 dic- 
tate that Governments long established should not be changed for 
light and transient causes; and accordingly all experience hath shown, 
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, pursu- 
ing 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 is a 
history of repeated injuries and usurpations, all having in direct object 
the establishment of an absolute Tyranny over these States. To prove 
this, let Facts be submitted to a candid world. 

He has refused his Assent to Laws, the most wholesome and nec- 
essary for the public good. 



262 



Declaration of Independence / 263 

He has forbidden his Governors to pass Laws of immediate and 
pressing importance, unless suspended in their operation till his As- 
sent should be obtained; and when so suspended, he has utterly ne- 
glected to attend to them. 

He has refused to pass other Laws for the accommodation of large 
districts of people, unless those people would relinquish the right of 
Representation in the Legislature, a right inestimable to them and 
formidable to tyrants only. 

He has called together legislative bodies at places unusual, uncom- 
fortable, and distant from the depository of their Public Records, for 
the sole purpose of fatiguing them into compliance with his measures. 

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 endeavoured to prevent the population of these States; for 
that purpose obstructing the Laws for Naturalization of Foreigners; 
refusing to pass others to encourage their migration hither, and raising 
the conditions of new Appropriations of Lands. 

He has obstructed the Administration of Justice, by refusing his 
Assent to Laws for establishing Judiciary Powers. 

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 harrass our People, and eat out their substance. 

He has kept among us, in times of peace. Standing Armies without 
the Consent of our legislature. 

He has affected to render the MiUtary independent of and superior 
to the Qvil Power. 

He has combined with others to subject us to a jurisdiction foreign 
to our constitution, and unacknowledged by our laws; giving his As- 
sent to their Acts of pretended Legislation: 

For quartering large bodies of armed troops among us: 

For protecting them, by a mock Trial, from Punishment for any 
Murders which they should commit on the Inhabitants of these States: 

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 transporting us beyond Seas to be tried for pretended offences: 



264 / Appendix 

For abolishing the free System of English Laws in a neighbouring 
Province, establishing therein an Arbitrary government, and enlarging 
its Boxmdaries so as to render it at once an example and fit instrument 
for introducing the same absolute rule into these Colonies: 

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 abdicated Government here, by declaring us out of his 
Protection and waging War against us. 

He has plundered our seas, ravaged our Coasts, burnt our towns, 
and destroyed the lives of our people. 

He is at this time transporting large Armies of foreign Mercenaries 
to compleat the works of death, desolation and tyranny, already begun 
with circumstances of Cruelty & perfidy scarcely paralleled in the 
most barbarous ages, and totally unworthy the Head of a civilized 
nation. 

He has constrained our fellow Citizens taken Captive on the high 
Seas to bear Arms against their Country, to become the executioners 
of their friends and Brethren, or to fall themselves by their Hands. 

He has excited domestic insurrections amongst us, and has en- 
deavoured to bring on the inhabitants of our frontiers, the merciless 
Indian Savages, whose known rule of Wcirfare, is an undistinguished 
destruction of all ages, sexes and conditions. 

In every stage of these Oppressions We have Petitioned for Re- 
dress 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. 

Nor have We been wanting in attention to our British brethren. 
We have warned them from time to time of attempts by their legisla- 
ture to extend an unwarrantable jurisdiction over us. We have re- 
minded them of the circumstances of our emigration and settlement 
here. We have appealed to their native justice and magnanimity, and 
we have conjured them by the ties of our common kindred to disavow 
these usurpations, which would inevitably interrupt our connections 
and correspondence. They too have been deaf to the voice of justice 
and of consanguinity. We must, therefore, acquiesce in the necessity, 
which denounces our Separation, and hold them, as we hold the rest 
of mankind. Enemies in War, in Peace Friends. 

We, therefore, the Representatives of the united States of America, 
in General Congress, Assembled, appealing to the Supreme Judge of 



Declaration of Independence / 265 

the world for the rectitude of our intentions, do, in the Name, and by 
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 cdl 
other Acts and Things which Independent States may of right do. And 
for the support of this Declaration, with a firm reliance on the Protec- 
tion of Divine Providence, we mutually pledge to each other our Lives, 
our Fortunes and our sacred Honor. 



The CONSTITUTION OF THE 
UNITED STATES 

(1787) 



[Preamble] 

We the People of the United States, in Order to form a more 
perfect Union, establish Justice, insure domestic Tranquility, provide 
for the common defence, 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. 

Article I 

Section 1. All legislative Powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate and 
House of Representatives. 

Section 2. The House of Representatives shall be composed of Mem- 
bers chosen every second Year, by the People of the several States, cmd 
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. 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 Nimiber 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 chuse three, Massachusetts 



266 



The Constitution of the United States of America / 267 

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. 

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 chuse 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, 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 tt\e sbcth 
Year, so that one third may be chosen every second Year; and if Vacan- 
cies 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. 

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 chuse their other Officers, and also a President 
pro tempore, in the Absence of the Vice President, or when he shall 
exercise the Office of President of the United States. 

The Senate shall have the sole Power to try all impeachments. 
When sitting for that Purpose, they shaU be on Oath or Affirmation. 
When the President of the United States is tried, the Chief Justice shaU 
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 hirther than 
to removal from 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, Inai, 
Judgement and Punishment, according to Law. 



268 / Appendix 

Section 4. The Times, Places and Manner of holding Elections for 
Senators 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 chusing Senators. 
The Congress shall assemble at least once in every Year, and such 
Meeting shall be on the first Monday in E>ecember, unless they shall 
by Law appoint a different Day. 

Section 5. Each House shall be the Judge of the Elections, Returns and 
Qualifications of its own Members, and a Majority of each shall consti- 
tute 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 Behaviour, 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 judg- 
ment 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 Compensa- 
tion 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 encreased 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 Amend- 
ments as on other Bills. 



The Constitution of the United States of America / 269 

Every BiU which shaU 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 shaU sign it, but if not 
he shaD return it, with his Objections to that House in which it shall 
have originated, who shall enter the Objections at large on their Jour- 
nal, and proceed to reconsider it. If after such Reconsideration two 
thirds of that House shall agree to pass the Bill, it shall be sent, to- 
gether with the Objections, to the other House, by which it shall like- 
wise be reconsidered, eind 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 repassed 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 Defence and general Welfare of the United States; but all 
Ehities, Imposts and Excises shall be imiform throughout the United 
States; 

To borrow Money on the credit of the United States; 

To regulate Commerce with foreign Nations, and among the sev- 
eral States, and with the Indian Tribes; 

To estabUsh an uniform Rule of Nahiralization, and uniform Uws 
on the subject of Bankruptcies throughout the United States; 

To coin Money, regulate the Value thereof, and of foreign Com, 
and fix the Standard of Weights and Measures; 

To provide for \he Punishment of counterfeiting the Securities and 
current Coin of the United States; 

To establish Post Offices and post Roads; 

To promote \he Progress of Science and useful Arts, by securmg 



270 / Appendix 

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 Offences 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 
the 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 the Erection of Forts, Magazines, Arse- 
nals, 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 one thousand eight hundred and 
eight, but a Tax or duty may be imposed on such Importation, not 
exceeding ten dollars for each Person. 

The Privilege of the Writ of Habeas Corpus shall not be sus- 
pended, 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 Propor- 
tion to the Census or Enumeration herein before directed to be taken. 



The Constitution of the United States of America / 271 

No Tax or Duty shaU be laid on Articles exported from any State 

No Preference shaU 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 
Outies 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 pub- 
lished 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 imder them, shall, 
without the Consent of the Congress, accept of any present. Emolu- 
ment, 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 Confed- 
eration; grant Letters of Marque and Reprisal; coin Money; emit Bills 
of Credit; make any Thing but gold and silver Coin a Tender in Pay- 
ment 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 the Congress, lay any Im- 
posts 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 Dan- 
ger as will not admit of delay. 

Article II 

Section 1. The executive Power shaU be vested in a President of the 
United States of America. He shaU 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 thereot 
may direct, a Number of Electors, equal to the whole Number of 
Senators and Representatives to which the State may be entitled m the 
Congress: but no Senator or Representative, or Person holdmg an 



272 / Appendix 

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 the 
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 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 chuse, by Ballot one of 
them for President; and if no Person have a Majority, then from the 
five highest on the list, the said House shall in like manner chuse the 
President. But in chusing 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 chuse from them by Ballot the Vice President. 

The Congress may determine the Time of chusing 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 bom 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, Resig- 
nation 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. 



The ConsHtution of the United States of America / 273 

The President shaU, at stated Times, receive for his Services a 
Compensation, which shaU neither be encreased nor diminished dm- 
ing the Period for which he shaU have been elected, and he shaU 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 wiU faithfuDy execute the Office of 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 respec- 
tive Offices, and he shall have Power to grant Reprieves and Pardons 
for offences 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 Con- 
sent 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 pro- 
vided for, and which shall be established by Law: but the 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 ex- 
traordinary 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 
ShaU take Care that the Laws be faithfully executed, and shall Commis- 
sion all the Officers of the United States. 



274 / Appendix 

Section 4. The President, Vice President and all civil Officers of the 
United States, shall be removed from Office on Impeachment for, and 
Conviction of. Treason, Bribery, or other high Crimes and Misdemean- 
ors. 

Article III 

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 su- 
preme and inferior Courts, shall hold their Offices during good Behav- 
iour, and shall, at stated Times, receive for their Services, a Compensa- 
tion, which shall not be diminished during their Continuance in Office. 

Section 2. The judicial Power shall extend to aD Cases, in Law and 
Equity, arising imder 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 Con- 
suls; — to all Cases of admiralty and maritime Jurisdiction; — to Contro- 
versies 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 be- 
tween a State, or the Citizens thereof, and foreign States, Citizens or 
Subjects. 

In all Cases affecting Ambassadors, other public Ministers and 
Consuls, and those in which a State shall be Pcirty, the supreme Court 
shall have original Jurisdiction. In all the other Cases before men- 
tioned, 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 the 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 Con- 
fession in open Court. 



The Constitution of the United States of Amenca / 275 

The Congress shaU have Power to, declare the Punishment of 
Treason, but no Attainder of Treason shaU work Corruption of Blood 
or Forfeiture except during the Life of the Person attainted. 

Article IV 

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 Labour 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 Labour, but 
shall be dehvered up on Claim of the Party to whom such Service or 
Labour may be due. 

Section 3. New States may be admitted by the Congress into this 
Union; but no new State shall be formed or erected within the Jurisdic- 
tion 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 Legisla- 
tures 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 be- 
longing 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 Repubhcan Form of Government, and shall protect each ot 
them against Invasion; and on Application of the Legislature, or ot the 
Executive (when the Legislature cannot be convened) agamst domestic 
Violence. 



276 / Appendix 

Article V 

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 Amendment 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; and that no State, 
without its Consent, shall be deprived of its equal Suffrage in the 
Senate. 

Article VI 

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 su- 
preme Law of the Land; and the Judges in every State shall be bound 
thereby, any Thing 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 judi- 
cial 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 imder the United States. 

Article VII 

The Ratification of the Conventions of nine States, shaD be suffi- 
cient for the Establishment of this Constitution between the States so 
ratifying the Same. 

Done in Convention by the Unanimous Consent of the States pre- 
sent the Seventeenth Day of September in the Year of our Lord one 
thousand seven hundred and Eighty seven and of the Independence 



The Constitution of the United States of America / 277 

of the United States of America the Twelfth. IN WITNESS whereof 
We have hereunto subscribed our Names, 



George Washington — President and Deputy from Virginia 



The Bill of Rights 



Article I 

Congress shall make no law respecting an establishment of reli- 
gion, or prohibiting the free exercise thereof; or abridging the freedom 
of speech, or of the press; or the right of the people to peaceably 
assemble, and to petition the Government for redress of grievances 

Article II 

A well regulated Militia, being necessary to the security of a free 
State, the right of the people to keep and bear Arms, shall not be 
infringed. 

Article 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. 

ArHcle IV 

The right of the people to be secure in their persons, houses, pa- 
pers, and effects, against unreasonable searches and seizures, shall not 
be violated, and no Warrants shaU issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the 
place to be searched, and the persons or things to be seized. 

Article V 

No person shall be held to answer for a capital, or otherwise 
infamous crime, unless on a presentment or indictment of a Grand 
Jury, except in cases arising in the land or naval forces, or in the 
Militia, when in actual service in time of War or public danger; nor 
shall any person be subject for the same offence to be twice put in 
jeopardy of life or limb; nor shall be compelled in any Criminal Case 
to be a witness against himself, nor be deprived of life, liberty, or 



278 



Bill of Rights / 279 

property, without due process of law; nor shaU private property be 
taken for public use, without just compensation. 

ArHcle VI 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the State and district 
wherein the crime shall have been committed, which district shall 
have been previously ascertained by law, and to be informed of the 
nature and cause of the accusation; to be confronted with the witnesses 
against him; to have compulsory process for obtaining witnesses in his 
favor, and to have the Assistance of Counsel for his defence. 

Article 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. 

ArHcle VIII 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 

ArHcle IX 

The enumeration in the Constitution, of certain rights, shall not 
be construed to deny or disparage others retained by the people. 

ArHcle X 

The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respec- 
tively, or to the people. 

—Adopted December 15, 1791 



Washington's Farewell Address 



Friends and Fellow-Citizens: 

The period for a new election of a citizen to administer the Execu- 
tive Government of the United States being not far distant, and the 
time actually arrived when your thoughts must be employed in desig- 
nating the person who is to be clothed with that important trust, it 
appears to me proper, especially as it may conduce to a more distinct 
expression of the public voice, that I should now apprise you of the 
resolution I have formed to decline being considered among the num- 
ber of those out of whom a choice is to be made. 

I beg you at the same time to do me the justice to be assured that 
this resolution has not been taken without a strict regard to all the 
considerations appertaining to the relation which binds a dutiful citi- 
zen to country; and that in withdrawing the tender of service, which 
silence in my situation might imply, I am influenced by no diminution 
of zeal for your future interest, no deficiency of grateful respect for 
your past kindness, but am supported by a full conviction that the step 
is compatible with both. 

The acceptance of and continuance hitherto in the office to which 
your suffrages have twice called me have been a uniform sacrifice of 
inclination to the opinion of duty and to a deference for what appeared 
to be your desire. I constantly hoped that it would have been much 
earlier in my power, consistently with motives which I was not at 
liberty to disregard, to return to that retirement from which I had been 
reluctantly drawn. The strength of my inclination to do this previous 
to the last election had even led to the preparation of an address to 
declare it to you; but mature reflection on the then perplexed and 
critical posture of our affairs with foreign nations and the unanimous 
advice of persons entitled to my confidence impelled me to abandon 
the idea. I rejoice that the state of your concerns, external as well as 
internal, no longer renders the pursuit of inclination incompatible with 
the sentiment of duty or propriety, and am persuaded, whatever parti- 
ality may be retained for my services, that in the present circumstances 
of our country you will not disapprove my determination to retire. 

The impressions with which I first undertook the arduous trust 
were explained on the proper occasion. In the discharge of this trust I 
will only say that I have, with good intentions, contributed toward the 



280 



Washington's Farewell Address / 281 

organization and administration of the Government the best exertions 
of which a very faihble judgment was capable. Not unconscious in the 
outset of the inferiority of my qualifications, experience in my own 
eyes, perhaps stiU more in the eyes of others, has strengthened the 
motives to diffidence of myself; and every day the increasing weight 
of years admonishes me more and more that the shade of retirement 
is as necessary to me as it wUl be welcome. Satisfied that if any circum- 
stances have given peculiar value to my services they were temporary, 
I have the consolation to believe tiiat, while choice and prudence invite 
me to quit the political scene, pabriotism does not forbid it. 

A Prayer of Gratitude 

In looking forward to the moment which is intended to terminate 
the career of my political life my feelings do not permit me to suspend 
the deep acknowledgment of that debt of gratitude which I owe to 
my beloved country for the many honors it has conferred upon me; 
still more for the steadfast confidence with which it has supported 
me, and for the opportunities I have thence enjoyed of manifesting 
my inviolable attachment by services faithful and persevering, though 
in usefulness unequal to my zeal. If benefits have resulted to our 
country from these services, let it always be remembered to your 
praise and as an instructive example in our annals that under circum- 
stances in which the passions, agitated in every direction, were liable 
to mislead; amidst appearances sometimes dubious; vicissitudes of 
fortune often discouraging; in situations in which not unfrequentiy 
want of success has countenanced the spirit of the constancy of your 
support was the essential prop of the efforts and a guaranty of the 
plans by which they were effected. Profoundly penetrated with this 
idea, I shall carry it with me to my grave as a strong incitement to 
unceasing vows that Heaven may continue to you the choicest tokens 
of its beneficence; that your union and brotherly affection may be 
perpetual; that the free Constitution which is the work of your hands 
may be sacredly maintained; that its administration in every depart- 
ment may be stamped witii wisdom and virtue; that, in fine, the happi- 
ness of the people of tiiese States, under the auspices of liberty, may 
be made complete by so careful a preservation and so prudent a use 
of this blessing as will acquire to them the glory of recommending it 
to the applause, the affection, and adoption of every nation which is 
yet a stranger to it. 

Here, perhaps, I ought to stop. But a solicitude for your welfare 
which can not end but with my life, and the apprehension of danger 



282 / Appendix 

natural to that solicitude, urge me on an occasion like the present to 
offer to your solemn contemplation and to recommend to your fre- 
quent review some sentiments which are the result of much reflection, 
of no inconsiderable observation, and which appear to me all impor- 
tant to the permanency of your felicity as a people. These will be 
offered to you with the more freedom as you can only see in them the 
disinterested warnings of a parting friend, who can possibly have no 
personal motive to bias his counsel. Nor can I forget as an encourage- 
ment to it your indulgent reception of my sentiments on a former and 
not dissimilar occasion. 

Interwoven as is the love of liberty with every ligament of your 
hearts, no recommendation of mine is necessary to fortify or confirm 
the attachment. 

In Union Lies Strength 

The unity of govemn\ent which constitutes you one people is also 
now dear to you. It is justly so, for it is a main pillar in the edifice of 
your real independence, the support of your tranquility at home, your 
peace abroad, of your safety, of your prosperity, of that very liberty 
which you so highly prize. But as it is easy to foresee that from differ- 
ent causes and from different quarters much pains will be taken, many 
artifices employed, to weaken in your minds the conviction of this 
truth, as this is the point in your political fortress against which the 
batteries of internal and external enemies will be most constantly and 
actively (though often covertly and insidiously) directed, it is of infi- 
nite moment that you should properly estimate the immense value of 
your national union to your collective and individual happiness; that 
you should cherish a cordial, habitual, and immovable attachment to 
it; accustoming yourselves to think and speak of it as of the palladium 
of your political safety and prosperity; watching for its preservation 
with jealous anxiety; discountenancing whatever may suggest even a 
suspicion that it can in any event be abandoned, and indignantly 
frowning upon the first dawning of every attempt to alienate any 
portion of our country from the rest or to enfeeble the sacred ties 
which now link together the various parts. 

For this you have every inducement of sympathy and interest. 
Citizens by birth or choice of a common country, that country has a 
right to concentrate your affections. The name of American, which 
belongs to you in your national capacity, must always exalt the just 
pride of patriotism more than any appellation derived from local dis- 
criminations. With slight shades of difference, you have the same reli- 



Washington's Farewell Address / 283 

gion, manners, habits, and poUtical principles. You have in a common 
cause fought and triumphed together. The independence and Uberty 
you possess are the work of joint councils and joint efforts, of common 
dangers, sufferings, and successes. 

But these considerations, however powerfully they address them- 
selves to your sensibility, are greatly outweighed by those which ap- 
ply more immediately to your interest. Here every portion of our 
country finds the most commanding motives for carefully guarding 
and preserving the union of the whole. 

The North, in an unrestrained intercourse with the South, protected 
by the equal laws of a common government, finds in the productions 
of the latter great additional resources of maritime and commercial 
enterprise and precious materials of manufacturing industry. The 
South, in the same intercourse, benefiting by the same agency of the 
North, sees its agriculture grow and its commerce expand. Turning 
partly into its own channels the seamen of the North, it finds its par- 
ticular navigation invigorated; and while it contributes in different 
ways to nourish and increase the general mass of the national naviga- 
tion, it looks forward to the protection of a maritime strength to which 
itself is unequally adapted. The East, in a like intercourse with the 
West, already finds, and in the progressive improvement of interior 
communications by land and water will more and more find, a valu- 
able vent for the commodities which it brings from abroad or manufac- 
tures at home. The West derives from the East supplies requisite to its 
growth and comfort, and what is perhaps of still greater consequence, 
it must of necessity owe the secure enjoyment of indispensable outlets 
for its own productions to the weight, influence, and the future mari- 
time strength of the Atlantic side of the Union, directed by an indissol- 
uble community of interest as one nation. Any other tenure by which 
the West can hold this essential advantage, whether derived from its 
own separate strength or from an apostate and uimatural connection 
with any foreign power, must be intrinsically precarious. 

Harmonious Interests 

While, then, every part of our country thus feels an immediate and 
particular interest in union, all the parts combined can not fail to find 
in the united mass of means and efforts greater strength, greater re- 
source, proportionably greater security from external danger, a less 
frequent interruption of their peace by foreign nations, and what is of 
inestimable value, they must derive from union an exemption trom 
those broils and wars between themselves which so frequently atmct 



284 / Appendix 

neighboring countries not tied together by the same governments, 
which their own rivalships alone would be sufficient to produce, but 
which opposite foreign alliances, attachments, and intrigues would 
stimulate and imbitter. Hence, likewise, they will avoid the necessity 
of those overgrown military establishments which, under any form of 
government, are inauspicious to liberty, and which are to be regarded 
as particularly hostile to republican liberty. In this sense it is that your 
imion ought to be considered as a main prop of your liberty, and that 
the love of the one ought to endear to you the preservation of the 
other. 

These considerations speak a persuasive language to every reflect- 
ing and virtuous mind, and exhibit the continucince of the union as a 
primary object of patriotic desire. Is there a doubt whether a common 
government can embrace so large a sphere? Let experience solve it. 
To listen to mere speculation in such a case were criminal. We are 
authorized to hope that a proper organization of the whole, with the 
auxiliary agency of goverrunents for the respective subdivisions, will 
afford a happy issue to the experiment. It is well worth a fair and full 
experiment. With such powerful and obvious motives to union affect- 
ing all parts of our country, while experience shall not have demon- 
strated its impracticability, there will always be reason to distrust the 
patriotism of those who in any quarter may endeavor to we«iken its 
bands. 

Divisive Issues Avoided 

In contemplating the causes which may disturb our union it occurs 
as matter of serious concern that any ground should have been fur- 
nished for characterizing parties by geographical discriminations — 
Northern and Southern, Atlantic and Western — whence designing men 
may endeavor to excite a belief that there is a real difference of local 
interests and views. One of the expedients of party to acquire influence 
within particular districts is to misrepresent the opinions and aims of 
other districts. You can not shield yourselves too much agcunst the 
jealousies and heartburnings which spring from these misrepresenta- 
tions; they tend to render alien to each other those who ought to be 
boimd together by fraternal affection. The inhabitants of our Western 
coimtry have lately had a useful lesson on this head. They have seen 
in the negotiation by the Executive and in the unanimous ratification 
by the Senate of the treaty with Spain, and in the universal satisfaction 
at that event throughout the United States, a decisive proof how un- 
founded were the suspicions propagated among them of a policy in 



Washington's Farewell Address / 285 

the General Government and in the Atlantic States unfriendly to their 
interests in regard to the Mississippi. They have been witnesses to the 
formation of two treaties— that with Great Britain and that with 
Spain— which secure to them everything they could desire in respect 
to our foreign relations toward confirming their prosperity. Will it not 
be their wisdom to rely for the preservation of these advantages on 
the union by which they were procured? Will they not hence forth be 
deaf to those advisers, if such there are, who would sever them from 
their brethren and connect them with aliens? 

To the efficacy and permanency of your uiuon a government for 
the whole is indispensable. No alliances, however strict, between the 
parts can be an adequate substitute. They must inevitably experience 
the infractions and interruptions which all alliances in all times have 
experienced. Sensible of this momentous truth, you have improved 
upon your first essay by the adoption of a Constitution of Government 
better calculated than your former for an intimate union and for the 
efficacious management of your common concerns. This Government, 
the offspring of our own choice, uninfluenced and una wed, adopted 
upon full investigation and mature deliberation, completely free in its 
principles, in the distribution of its powers, uniting security with en- 
ergy, and containing within itself a provision for its own amendment, 
has a just claim to your confidence and your support. Respect for its 
authority, compliance with its laws, acquiescence in its measures, are 
duties enjoined by the fundamental maxims of true liberty. The basis 
of our political systems is the right of the people to make and to alter 
their constitutions of goverrmient. But the constitution which at any 
time exists till changed by an explicit and authentic act of the whole 
people is sacredly obligatory upon all. The very idea of the power and 
the right of the people to establish government presupposes the duty 
of every individucd to obey the established government. 

Special Interests and Factions 

All obstructions to the execution of the laws, aU combinations and 
associations, under whatever plausible character, with the real design 
to direct, control, counteract, or awe the regular deUberation and ac- 
tion of the constituted authorities, are destructive of this fundamental 
principle and of fatal tendency. They serve to organize faction; to give 
it an artificial and extraordinary force; to put in the place of the dele- 
gated will of the nation the wiU of a party, often a smaU but artful and 
enterprising minority of the community, and, accordmg to the alter- 
nate triumphs of different parties, to make the pubUc administration 



286 / Appendix 

the mirror of the ill-concerted and incongruous projects of faction 
rather than the organ of consistent and wholesome plans, digested by 
common counsels and modified by mutual interests. 

However combinations or associations of the above description 
may now and then answer popular ends, they are likely in the course 
of time and things to become potent engines by which cunning, ambi- 
tious, and unprincipled men will be enabled to subvert the power of 
the people, and to usurp for themselves the reins of government, 
destroying afterwards the very engines which have lifted them to 
imjust dominion. 

Toward the preservation of your Government and the perma- 
nency of your present happy state, it is requisite not only that you 
steadily discoimtenance irregular opposition to its acknowledged 
authority, but also that you resist with care the spirit of innovation 
upon its principles, however specious the pretexts. One method of 
assault may be to effect in the forms of the Constitution alterations 
which will impair the energy of the system, and thus to undermine 
what can not be directly overthrown. In all the changes to which you 
may be invited remember that time and habit are at least as necessary 
to fix the true character of governments as of other human institutions; 
that experience is the surest standard by which to test the real ten- 
dency of the existing constitution of a country; that facility in changes 
upon the credit of mere hypothesis and opinion exposes to f>erf>etual 
change, from the endless variety of hypothesis and opinion; and re- 
member especially that for the efficient management of your common 
interests in a country so extensive as ours a government of as much 
vigor as is consistent with the perfect security of liberty is indispensa- 
ble. Liberty itself will find in such a government, with powers properly 
distributed and adjusted, its surest guardian. It is, indeed, little else 
than a name where the government is too feeble to withstand the 
enterprises of faction, to confine each member of the society within the 
limits prescribed by the laws, and to maintain all in the secure and 
tranquil enjoyment of the rights of person and property. 

The Spirit of Party 

I have already intimated to you the danger of parties in the State, 
with particular reference to the founding of them on geographical 
discriminations. Let me now take a more comprehensive view, and 
warn you in the most solemn manner against the baneful effects of the 
spirit of party generally. 

This spirit, unfortunately, is inseparable from our nature, having 



Washington's Farewell Address / 287 

its root in the strongest passions of the human mind. It exists under 
different shapes in aU governments, more or less stifled, controlled, 
or repressed; but in those of the popular form it is seen in its greatest 
rankness and is truly their worst enemy. 

The alternate domination of one faction over another, sharpened 
by the spirit of revenge nahiral to party dissension, which in different 
ages and countries has perpetrated the most horrid enormities, is itself 
a frightful despotism. But this leads at length to a more formal and 
permanent despotism. The disorders and miseries which result gradu- 
ally incline the minds of men to seek security and repose in the abso- 
lute power of an individual, and sooner or later the chief of some 
prevailing faction, more able or more fortimate than his competitors, 
turns this disposition to the purposes of his own elevation on tiie ruins 
of public liberty. 

Without looking forward to an extremity of this kind (which nev- 
ertheless ought not to be entirely out of sight), the common and contin- 
ual mischiefs of the spirit of party are sufficient to make it the interest 
and duty of a wise people to discourage and restrain it. 

It serves always to distract the public councils and enfeeble the 
public administration. It agitates the community with ill-founded jeal- 
ousies and false alarms; kindles the animosity of one part against 
another; foments occasionally riot and insurrection. It opens the door 
to foreign influence and corruption, which find a facilitated access to 
the government itself through the channels of party passion. Thus the 
policy and the will of one country are subjected to the policy and will 
of another. 

Dangerous in a Free Country 

There is an opinion that parties in free countries are useful checks 
upon the administration of the government, and serve to keep alive 
the spirit of liberty. This within certain limits is probably true; and in 
governments of a monarchical cast patriotism may look with indul- 
gence, if not with favor, upon the spirit of party. But in those of the 
popular character, in governments purely elective, it is a spirit not to 
be encouraged. From their natural tendency it is certain there will 
always be enough of that spirit for every salutary purpose; and there 
being constant danger of excess, the effort ought to be by force ot 
pubUc opinion to mitigate and assuage it. A fire not to be quenched, 
it demands a uniform vigUance to prevent its burstmg into a tlame, 
lest, instead of warming, it should consume. 

It is important, likewise, that the habits of thinking in a free coun- 



288 / Appendix 

try should inspire caution in those intrusted with its administration 
to confine themselves within their respective constitutional spheres, 
avoiding in the exercise of the powers of one department to encroach 
upon another. The spirit of encroachment tends to consolidate the 
powers of all the departments in one, and thus to create, whatever the 
form of government, a real despotism. A just estimate of that love of 
power and proneness to abuse it which predominates in the human 
heart is sufficient to satisfy us of the truth of this position. The neces- 
sity of reciprocal checks in the exercise of political power, by dividing 
and distributing it into different depositories, and constituting each 
the guardian of the public weal against invasions by the others, has 
been evinced by experiments ancient and modem, some of them in 
our country and under our own eyes. To preserve them must be as 
necessary as to institute them. If in the opinion of the people the 
distribution or modification of the constitutional powers be in any 
particular wrong, let it be corrected by an amendment in the way 
which the Constitution designates. But let there be no change by usur- 
pation; for though this in one instance may be the instrument of good, 
it is the customary weapon by which free governments are destroyed. 
The precedent must always greatly overbalance in permanent evil any 
partial or transient benefit which the use can at any time yield. 

Religion and Morality 

Of all the dispositions and habits which lead to political prosper- 
ity, religion and morality are indispensable supports. In vain would 
that man claim the tribute of patriotism who should labor to subvert 
these great pillars of human happiness — these firmest props of the 
duties of men and citizens. The mere politician, equally with the pious 
man, ought to respect and to cherish them. A volume could not trace 
all their connections with private and public felicity. Let it simply be 
asked. Where is the security for property, for reputation, for life, if the 
sense of religious obligation desert the oaths which are the instruments 
of investigation in courts of justice? And let us with caution indulge 
the supposition that morality can be maintained without religion. 
Whatever may be conceded to the influence of refined education on 
minds of peculiar structure, reason and experience both forbid us to 
expect that national morality can prevail in exclusion of religious prin- 
ciple. 

It is substantially true that virtue or morality is a necessary spring 
of popular government. The rule indeed extends with more or less 
force to every species of free government. Who that is a sincere friend 



Washington's Farewell Address / 289 

to it can look with indifference upon attempts to shake the foundation 
of the fabnc? Promote, then, as an object of primary importance insti- 
hitions for the general diffusion of knowledge. In proportion 'as the 
structure of a government gives force to public opinion, it is essential 
that public opinion should be erUightened. 

As a very important source of strength and security, cherish pubUc 
credit One method of preserving it is to use it as sparingly as possible, 
avoiding occasions of expense by cultivating peace, but remembering 
also that timely disbursements to prepare for danger frequently pre- 
vent much greater disbursements to repel it; avoiding likewise the 
accumulation of debt, not only by shuiming occasions of expense, but 
by vigorous exertions in time of peace to discharge the debts which 
unavoidable wars have occasioned, not ungenerously throwing upon 
posterity the burthen which we ourselves ought to bear. The execution 
of these maxims belongs to your representatives; but it is necessary 
that public opinion should cooperate. To facilitate to them the perfor- 
mance of their duty it is essential that you should practically bear in 
mind that toward the payment of debts there must be revenue; that 
to have revenue there must be taxes; that no taxes can be devised 
which are not more or less inconvenient and unpleasant; that the 
intrinsic embarrassment inseparable from the selection of the proper 
objects (which is always a choice of difficulties), ought to be a decisive 
motive for a camdid construction of the conduct of the Government in 
making it, and for a spirit of acquiescence in the measures for obtain- 
ing revenue which the public exigencies may at any time dictate. 

Observe good faith and justice toward all nations. Cultivate peace 
2ind harmony with aU. Religion and morality enjoin this conduct. And 
can it be that good policy does not equally enjoin it? It will be worthy 
of a free, enlightened, and at no distant period a great nation to give 
to marUdnd the magnanimous and too novel example of a people 
always guided by an exalted justice and benevolence. Who can doubt 
that in the course of time and things the fruits of such a plan would 
richly repay any temporary advantages which might be lost by a 
steady adherence to it? Can it be that Providence has not connected 
the permanent feUcity of a nation with its virtue? The experiment, at 
least, is recommended by every sentiment which ennobles human 
nature. Alas! is it rendered impossible by its vices? 

International Policy 

In the execution of such a plan nothing is more essential than that 
permanent, inveterate antipathies against particular nations and pas- 



290 / Appendix 

sionate attachments for others should be excluded, and that in place 
of them just and amicable feelings toward all should be cultivated. The 
nation which indulges toward another an habitual hatred or an habit- 
ual fondness is in some degree a slave. It is a slave to its animosity or 
to its affection, either of which is sufficient to lead it astray from its 
duty and its interest. Antipathy in one nation against another disposes 
each more readily to offer insult and injury, to lay hold of slight causes 
of umbrage, and to be haughty and intractable when accidental or 
trifling occasions of dispute occur. 

Hence frequent collisions, obstinate, envenomed, and bloody con- 
tests. The nation prompted by ill will and resentment sometimes im- 
pels to war the government contrary to the best calculations of policy. 
The government sometimes participates in the national propensity, 
and adopts through passion what reason would reject. At other times 
it makes the animosity of the nation subservient to projects of hostility, 
instigated by pride, ambition, and other sinister and pernicious mo- 
tives. The peace often, sometimes perhaps the liberty, of nations has 
been the victim. 

So, likewise, a passionate attachment of one nation for another 
produces a variety of evils. Sympathy for the favorite nation, facilitat- 
ing the illusion of an imaginary common interest in cases where no 
real common interest exists, and infusing into one the enmities of the 
other, betrays the former into a participation in the quarrels and wars 
of the latter without adequate inducement or justification. It leads also 
to concessions to the favorite nation of privileges denied to others, 
which is apt doubly to injure the nation making the concessions by 
unnecessarily parting with what ought to have been retained, and by 
exciting jealousy, ill will, and a disposition to retaliate in the parties 
from whom equal privileges are withheld; and it gives to ambitious, 
corrupted, or deluded citizens (who devote themselves to the favorite 
nation) facility to betray or sacrifice the interests of their own country 
without odium, sometimes even with popularity, gilding with the ap- 
pearances of a virtuous sense of obligation, a commendable deference 
for public opinion, or a laudable zeal for public good the base or 
foolish compliances of ambition, corruption, or infatuation. 

As avenues to foreign influence in innumerable ways, such attach- 
ments are particularly alarming to the truly enlightened and indepen- 
dent patriot. How many opportunities do they afford to tamper with 
domestic factions, to practice the arts of seduction, to mislead public 
opinion, to influence or awe the public councils! Such an attachment 
of a small or weak toward a great and powerful nation dooms the 



Washington's Farewell Address / 291 

former to be the satellite of the latter. Against the insidious wUes of 
foreign influence (I conjure you to believe me, feUow-citizens) the 
jealousy of a free people ought to be constantly awake, since history 
and expenence prove that foreign influence is one of the most baneful 
foes of repubUcan government. But that jealousy, to be useful, must 
be impartial, else it becomes the instnmient of the very influence to 
be avoided, instead of a defense against it. Excessive partiality for one 
foreign nation and excessive dislike of another cause those whom they 
actuate to see danger only on one side, and serve to veil and even 
second the arts of influence on the other. Real patriots who may resist 
the intrigues of the favorite are liable to become suspected and odious, 
while its tools and dupes usurp the applause and confidence of the 
people to surrender their interests. 

The great rule of conduct for us in regard to foreign nations is, in 
extending our commercial relations to have with them as little political 
connection as possible. So far as we have already formed engagements 
let them be fulfilled with perfect good faith. Here let us stop. 

Avoid Political Alliance 

Europe has a set of primary interests which to us have none or a 
very remote relation. Hence she must be engaged in frequent contro- 
versies, the causes of which are essentially foreign to our concerns. 
Hence, therefore, it must be unwise in us to implicate ourselves by 
artificial ties in the ordinary vicissitudes of her politics or the ordinary 
combinations and collisions of her friendships or enmities. 

Our detached and distant situation invites and enables us to pur- 
sue a different course. If we remain one people, under an efficient 
government, the period is not far off when we may defy material 
injury from external annoyance; when we may take such an attitude 
as will cause the neutrality we may at any time resolve upon to be 
scrupulously respected; when belligerent nations, under the impossi- 
bility of making acquisitions upon us, will not lightly hazard the giv- 
ing us provocation; when we may choose peace or war, as our interest, 
guided by justice, shall counsel. 

Why forego the advantages of so peculiar a sihiation? Why quit 
our own to stand upon foreign ground? Why, by interweaving our 
destiny with that of any part of Europe, entangle our peace and pros- 
perity in the toils of European ambition, rivalship, interest, humor, or 
caprice? 



292 / Appendix 

The Simple Rules of Trade 

It is our true policy to steer clear of permanent alliances with any 
portion of the foreign world, so far, I mean, as we are now at liberty 
to do it; for let me not be understood as capable of patronizing infidel- 
ity to existing engagements. I hold the maxim no less applicable to 
public than to private affairs that honesty is always the best policy. I 
repeat, therefore, let those engagements be observed in their genuine 
sense. But in my opinion it is unnecessary and would be unwise to 
extend them. 

Taking care always to keep ourselves by suitable establishments 
on a respectable defensive posture, we may safely trust to temporary 
alliances for extraordinary emergencies. 

Harmony, liberal intercourse with all nations are recommended 
by policy, humanity, and interest. But even our commercial policy 
should hold an equal and impartial hand, neither seeking nor granting 
exclusive favors or preferences; consulting the natural course of 
things; diffusing and diversifying by gentle means the streams of com- 
merce, but forcing nothing; establishing with powers so disposed, in 
order to give trade a stable course, to define the rights of our mer- 
chants, and to enable the Government to support them, conventional 
rules of intercourse, the best that present circumstances and mutual 
opinion will permit, but temporary and liable to be from time to time 
abandoned or varied as experience and circumstances shall dictate; 
constantly keeping in view that it is folly in one nation to look for 
disinterested favors from another; that it must pay with a portion of 
its independence for whatever it may accept under that character; that 
by such acceptance it may place itself in the condition of having given 
equivalents for nominal favors, and yet of being reproached with in- 
gratitude for not giving more. There can be no greater error than to 
expect or calculate upon real favors from nation to nation. It is an 
illusion which experience must cure, which a just pride ought to dis- 
card. 

Suggestions to Guide Peaceful National Affairs 

In offering to you, my countrymen, these counsels of an old and 
affectionate friend I dare not hope they will make the strong and 
lasting impression I could wish — that they will control the usual cur- 
rent of the passions or prevent our nation from running the course 
which has hitherto marked the destiny of nations. But if I may even 
flatter myself that they may be productive of some partial benefit. 



Washington's Farewell Address / 293 

some occasional good-that they may now and then recur to moderate 
the fury of party spirit, to warn against the mischiefs of foreign in- 
trigue, to guard against the impostures of pretended patriotism-this 
hope wiU be a fuD recompense for the soUcihide for your welfare bv 
which they have been dictated. ^ 

How far in the discharge of my official duties I have been guided 
by the principles which have been delineated the public records and 
other evidences of my conduct must witness to you and to the world. 
To myself, the assurance of my own conscience is that I have at least 
believed myself to be guided by them. 

In relation to the still subsisting war in Europe my proclamation 
of the 22nd of April, 1793, is the index to my plan. Sanctioned by your 
approving voice and by that of your representatives in both Houses 
of Congress, the spirit of that measure has continually governed me, 
uninfluenced by any attempts to deter or divert me from it. 

After deliberate examination, with the aid of the best lights I could 
obtain, I was well satisfied that our country, under all the circum- 
stances of the case, had a right to take, and was bound in duty and 
interest to take, a neutral position. Having taken it, I determined as far 
as should depend upon me to maintain it with moderation, persever- 
ance, and firmness. 

The considerations which respect the right to hold this conduct it 
is not necessary on this occasion to detail. I will only observe that, 
according to my understanding of the matter, that right, so far from 
being denied by any of the belligerent powers, has been virtually 
admitted by all. 

The duty of holding a neutral conduct may be inferred, without 
anything more, from the obligation which justice and humanity im- 
pose on every nation, in cases in which it is free to act, to maintain 
inviolate the relations of peace and amity toward other nations. 

An Independent Nation 

The inducements of interest for that conduct will best be to your 
own reflections and experience. With me a predominant motive has 
been to endeavor to gain time to our country to settle and mature its 
yet recent institutions, and to progress without interruption to that 
degree of strength and consistency which is necessary to give it, hu- 
manly speaking, the command of its own fortunes. 

Though in reviewing the incidents of my Administration I am 
unconscious of intentional error, I am nevertheless too sensible of my 
defects not to think it probable that I may have committed many 



294 / Appendix 

errors. Whatever they may be, I fervently beseech the Ahnighty to 
avert or mitigate the evils to which they may tend. I shall also carry 
with me the hope that my country will never cease to view them with 
indulgence, and that, after forty-five years of my life dedicated to its 
service with an upright zeal, the faults of incompetent abilities will be 
consigned to oblivion, as myself must soon be to the mansions of rest. 
Relying on its kindness in this as in other things, and actuated by 
that fervent love toward it which is so natural to a man who views in 
it the native soil of himself and his progenitors for several generations, 
I anticipate with pleasing expectation that retreat in which I promise 
myself to realize without alloy the sweet enjoyment of partaking in the 
midst of my fellow-citizens the benign influence of good laws under 
a free government — the ever-favorite object of my heart, and the 
happy reward, as I trust, of our mutual cares, labors, and dangers. 

—September 17, 1796 



Index 



Adams, Abigail, 40, 184 
Adams, John, 40, 69, 85, 181, 182 
Adams, John Quincy, 109, 226 
Administrative law, 244 
Agricultural Adjustment Act, 208 
AUen and Sedition Acts, 181, 284 
American ideal, 19-32 
American Revolution, 45, 50; Ameri- 
can and French Revolutions com- 
pared, 63-74 
Argentina inflation, 23 
Armistice, World War 1, 16 
Articles of Confederation, 129, 158, 
167, 200 

Babeuf, Francois, 66 

Baldwin, Abraham, 163 

Baltimore and Ohio Railroad, 137, 138 

Bank of North America, 170 

Bank of the United States, 179 

BasHat, Frederic, 27, 48, 65, 72, 73, 234 

BasHlle, 65 

Bearce, Robert, 40-48, 101-123 

Bentham, Jeremy, 34, 58 

Berger, Raoul, 203 

Berlin and Milan decrees, 71 

Beveridge, Albert J., 156-157 

Bill of Rights, 20, 52, 87, 106, 120; text 
of, 278-279; see also separate 
amendments I-X listed under 
U.S. Constitution 

Black, Hugo, 239, 240 

Blackstone, WUliam, 35, 38 

Bodin, Jean, 77 

Bolivia, 26 

Bonham's Case, 37 

Boston Massacre, 69 

Bradford, Governor William, 19-20 

Bradford, M.E., 199-206 



Brandeis, Louis, 138 
Brant, Irving, 158, 159 
Bright, John, 27 
Bureaucracy, 111 
Burke, Edmund, 48, 66, 200 
Business monopoly, 75 
Butler, Pierce, 171, 172 

Calhoun, John C, 200 

Carson, Clarence, 1-4, 75-83, 84-98, 
166-175, 176-187, 188-195, 207- 
218 

Carter, Jimmy, 243 

Catholic Church in eighteenth-cen- 
tury France, 66-67 

Certificates of Good Citizenship, 67 

Chamberlain, John, 70 

Charles I, 78 

Checks and balances, 81-82, 106, 183, 
235 

Chevalier, Michel, 27 

Chrysler Corporation, 138 

Church, Frank, 239 

Cleveland, Grover, 137 

Cobden, Richard, 27 

Coke, Edward, 37, 38 

Commentaries on the Law (Black- 
stone), 38 

Communism, 30 

Communist Manifesto, 31 

Conscription, 85 

Constitutional Convention, 127, 131, 
171, 199-200, 204 

Constitutional government, British 
theory of, 77 

Continental Congress, 51, 85 

Cooney, Ronald, 33-36 

Copyright Office, 111 

Corn Laws, 28 



295 



296 / Index 



Corwin, E.S., 190 
Cotter, ComeUus, 238, 239 
Court monopoly as oligarchic despo- 
tism, 186 
Curran, John, 235 

Danton, 44, 69 

Daudet, Leon, 63 

''Declaration of the Causes and Ne- 
cessity of Taking Up Arms," 51 

Declaration of Independence, 20, 33, 
38, 40, 41, 42, 45, 46, 48, 51-52, 
102, 115, 145, 155, 206, 233, 236; 
text of, 262-265 

Democracy, 57-58, 128-129; condi- 
tions necessary for, 219-221; ob- 
jections to, 222; Plato's view of, 
223; vs. the market, 231-232 

Democratic Convention (1960), 155 

Department of Health, Education, 
and Welfare, 189 

Department of Public Welfare, 191 

Depression of 1780s, 170 

Dickinson, John, 85, 199 

Direct election of senators, 217- 
218 

Douglas, William O., 239, 240 

Draft, 85 

Dual sovereignty, 211-212 

Economic growth of U.S., 133-134 
Electoral College, 201-202, 227 
Elizabethan Poor Law, 189 
Elsworth, Oliver, 95, 172 
English Bill of Rights, 78 
English Enlightenment, 205 
Enumeration of powers, 194-195, 

214-215 
Equal Rights Amendment, 201 
Equality, 200-201, 206 
Executive orders, 242 
Established church, 89 
Estates-General, 65 
Ethical arguments for natural rights, 

35 



European thought on natural law 

theory, 77 
Executive abuses, 241-242 

Farrand, Max, 202 

Federal Emergency Management, 243 
Federal Regional Councils, 243 
Federalism, 81, 105, 207-218 
Federalist Papers, 155, 159, 160, 163- 

164, 174, 225 
Fiat Money Inflation in France 

(White), 66 
Fortescue, John, 78 
Founding Fathers, intentions of, 7-15, 

93, 102, 251-255 
Fragment on Government (Bentham), 

35 
France, 23, 24-25 
Frankfurter, Felix, 156 
Franklin, Benjanun, 9, 10, 70, 85, 93, 

155, 199, 200, 204, 226 
Freedom philosophy, 31-32 
Free rider problem, 137 
Free trade, 64, 72, 93-94, 147 
French Revolution, 33, 43, 44; French 

and American Revolutions com- 
pared, 63-74 
Friedman, Milton, 119 
The Future of Federalism (Rockefeller), 

211 

Gallatin, Albert, 70, 71 

General Welfare clause, 109, 110, 154, 
162-163, 164, 188-195, 229 

George III, 7, 20, 41, 43, 61 

Germany, hyperinflation in, 27 

Gerry, Elbridge, 204 

Glorious Revolution of 1688, 33, 63 

Gold and silver coin, 170 

Gorgoglione, Robert D., v 

Gorham, Nathaniel, 171, 172, 174 

Government by Judiciary (Berger), 
203 

Government, dangers of, 75-76; ex- 
penditures, 56-57; growth of, 82; 



Government {continued) 

limitations on authority, 131, 186, 
193; regulation and control, 54- 
55 

Grand Jury, 149 

Grotius, Hugo, 77-78 

Habeas corpus, 87, 149 
Hamilton, Alexander, 70, 102, 155, 

159, 160, 161, 163, 174, 178, 180, 

181, 203, 216, 217 
Harrington, James, 77 
Hayek, F.A., 142 
Henry, Patrick, 42, 45, 46, 47, 87-88, 

101-102, 121 
Higgs, Robert, 49-62 
HUlendahl, W.H., 233-247 
Hitler, Adolf, 82 
Hobbes, Thomas, 34, 35, 49, 58 
Hooker, Richard, 77 
Hospers, John, 219-232 
Hume, David, 205 
Humphreys, R, A., 129 

Impeachment, 150-151 

Incentives, 134-135 

Individual rights, 49-62, 88-89, 103, 

308 
InflaHon, 23, 25, 169 
Interstate commerce, 135, 153, 228 

Jackson, Andrew, 185 

Jacobins, 43 

Japanese-Americans, internment of, 
58 

Jay, John, 159, 214 

Jefferson and Madison (Koch), 158, 162 

Jefferson, Thomas, 48, 61, 70, 85, 87, 
89, 92, 104, 108, 110, 111, 119, 123, 
156-157, 162, 176, 177, 178, 179, 
180, 181, 183, 184, 185, 186, 206, 
226,229 

Johnson, Lyndon, 243 

Johnson, M. Bruce, 134 

Judiciary Act of 1801, 185 



Index 1 1^ 

Judiciary, 114, 217, 227; abuses by, 
239; judicial power, 176-187; ju- 
dicial review, 178 

Keeler, Davis E., 37-39 
Kennedy, John F., 243 
Kentucky Resolution, 179, 181 
Keylishian case, 240 
King, Rufus, 85, 204 
Koch, Adrienne, 158, 162 
Kristol, Irving, 68 
Kropotkin, Piotr, 63 

Laissez faire, 64 

Langdon, John, 95, 173 

The Law (Bastiat), 27, 234 

Lee, Dwight R., 127-144 

Lee, Richard Henry, 85 

Legal tender laws, 166 

Legislative abuses, 241-242 

Leviathan (Hobbes), 34 

Liberty, biblical concepts of, 233-234 

The Life of John Marshall (Beveridge), 

156-157 
Limited government, 21, 82, 84-85, 

102, 141, 145-152 
Lincoln, Abraham, 206 
Livingston, Robert, 158 
Local government, 213 
Louis Napoleon, 223 
Louis XVI, 43, 64, 65, 67 

Madison, 61, 70, 71, 86, 89, 93, 102, 
103, 110, 114, 120, 121, 130, 158, 
159, 161, 162, 166, 171, 173, 194, 
203, 204, 214, 216, 220, 225, 226, 
229 

Madison: Father of the Constitution 
(Brant), 158, 159 

Magna Carta, 37, 128 

Majority rule, 219; departures from, 
201-202; limitations on, 224 

The Making of the Constitution (War- 
ren), 158 

Manion, Clarence, 233, 239, 240 



298 / Index 



Marat, Jean Paul, 69 

Marbury v. Madison, 184 

Marbury, William, 184 

Marquis de Sade, 66 

Marshall, John, 184, 185 

Marx, Karl, 19, 29, 205 

Mason, George, 89, 173, 203 

Massachusetts Bill of Rights, 52 

Massachusetts Declaration of Rights, 
90,91 

Mathias, Senator, 238, 239 

McDonald, Forrest, 132 

McLaughlin, Andrew C, 69 

Mercantilism, 93, 96 

Mercer, John Francis, 172 

Military, 148-149; see also conscrip- 
tion 

Milwaukee and St. Paul Railroad Co. v. 
Minnesota, 138 

Mirabeau, 65 

Mises, Ludwig von, 48, 49 

Monetary provisions in the U.S. Con- 
stitution, 94 

Monroe, James, 194, 226 

Montesquieu, 80, 81 

Morley, Felix, 207 

Morris, Gouverneur, 171, 204 

Morris, Robert, 170, 199 

Muller V. Oregon, 138 

Munn V. Illinois, 138 

Napoleon, 68, 71 

National Endowment for the Arts, 
111 

National Endowment for the Hu- 
manities, 111-112 

National Recovery Act, 190 

National Science Foundation, 111, 112 

Natural law, natural rights, 21, 33-36, 
37-39, 76-78 

Necker, Jacques, 64, 71 

New Deal legislation, 190-191, 228 

"New Federalism," 203 

New Jersey, 168 

Nietzsche, Friedrich, 34 



Nilsson, George W., 153-165 
Nbcon, Richard, 21, 243 
"Non-zoning in Houston" (Siegan), 

230 
Northwest Ordinance, 92 
Norton, Thomas James, 163 

Oaths of office, 101, 165, 185 
Opitz, Edmund A., 145-152 
The Origin and Growth of the American 
Constitution (H. Taylor), 157-158 
Orwell, George, 55 
OSHA, 244 
Otis, James, 69 

Paine, Thomas, 226 

Paris Commune, 66 

Pemberton, Jackson, 7-15, 251-255 

Perkins, Frances, 190 

Peterson, Robert A., 63-74 

Petition of Right, 78 

Physiocrats, 64 

Pickering, John, 185 

Pilgrims, 29 

Pilgrims' experiment with communal 
ownership, 19 

Plato's views on democracy, 223-224 

Polish Alliance v. National Labor Rela- 
tions Board, 156 

Poor Laws, 28 

Privacy, 148 

Private property, 19-20, 59-61, 91, 
114 

Progressivism, U.S., 28 

Pufendorf, Samuel, 77 

Puritans, 37 

Quesnay, Francois, 64 

Randolph, Edmund, 162, 167, 172, 204 
Read, George, 95, 173 
Read, Leonard E., 19-32 
Reagan administration, 210, 244 
Religion, freedom of, 69-70, 89-90, 
204 



"Report on Manufactures" (Hamil- 
ton), 161 
Republic, defined, 224-225 
Rhode Island, 94, 167, 168 
Rights of Englishmen, 200 
Rights, creation of, 35-36 
Roberts, Owen, 208-209, 210 
Robespierre, 44, 69, 72, 205 
Rockefeller, Nelson, 211 
Roosevelt, Franklin D., 160, 242 
Roosevelt, Theodore, 116-117 
Rossiter, Clinton, 133 
Rousseau, Jean Jacques, 72 
Russia, 24 
Rutledge, John, 167 

Saint-Just, 68 

Scott, Otto, 65 

Self-government, 221 

Self-incrimination, 150 

Separation of powers, 80-81, 105, 235 

Shays, Daniel, 204, 205 

Sherman, Roger, 85, 173, 174 

Sidney, Algernon, 77 

Siegan, Bernard, 230 

"Slaughterhouse Cases," 239 

Slavery, 91-93, 133, 151, 202 

Smith, Adam, 64 

Smith, William, L., 203 

Social Security Act, 190, 191 

Society of Equals, 66 

South Carolina, 167 

Sovereignty of individual, 145 

Sovereignty, dual, 211-212 

Special interest groups, 136 

The Spirit of Laws (Montesquieu), 80- 

81 
St. Augustine, 33 
St. Paul, 205, 234, 237, 245 
Stalin, Joseph, 82 
Stamp Tax, 39 

Star Chamber proceedings, 149 
State powers, limitation of, 215 
States' sovereignty, states' rights, 151, 

160-161, 208 



Index I 299 

Stone, Harlan, 190 
Story, Joseph, 155 
Strict construction of U.S. Constitu- 
tion, 179, 182 

Taft, William Howard, 116 

Tariffs, 72 

Taxation, 22-23, 56, 89, 95, 112, 117, 

127, 148, 181, 188, 190, 192, 193, 

215 
Taylor, Hannis, 157-158, 164 
Television programming for children, 

119-120 
Tennessee Valley Authority, 192 
Tennis Court Oath, 65 
Thomas Aquinas, 33-36 
Tocqueville, Alexis de, 48, 140, 231, 

232 
Transfer payments, 134, 140 
Treason, 150 
Trial by jury, 149 
Turgot, Robert, 64 

Undermining the Constitution (Nor- 
ton), 163 
United Nations, 235 
United States v. Griswold, 139 
United States v. Butler, 208 
U.S. Constitution 

Amendment 1, 146, 147, 203, 
224 

Amendment II, 149 

Amendment IV, 113, 148 

Amendment V, 113, 134, 148, 149, 
150 

Amendment VII, 149 

Amendment VIII, 150 

Amendment IX, 106, 146, 161 

Amendment X, 106-107, 110, 117, 
146, 161, 174, 209, 215 

Amendment XIV, 113, 240 

Amendment XV, 147 

Amendment XVI, 177 

Amendment XVII, 217, 227 

Amendment XIX, 147 



300 / Index 



U.S. Constitution {continued) 

Article I, 79, 80, 87, 104, 109, 111, 
114, 147, 148, 149, 151, 153-154, 
160, 188, 214 

Article II, 79 

Article III, 79, 105, 150 

Article IV, 79, 104 

Article VI, 79, 147, 150 

background of, 84 

contract clause, 135 

"elastic clause,'' 114 

enumerated powers, 86 

federal powers restricted by state 
powers, 88 

Fugitive Slave clause, 202 

General Welfare clause, 109, 110, 
154, 162-63, 164, 188-195, 229 

legislative powers, 87 

money, 94 

political economy, 127-144 

Preamble, 109, 110, 146, 188 

ratification, 94 

text of, 266-277 
U.S. Supreme Court, 57, 182 
Utilitiarianism, 35 

Vermont State Constitution, 153 
Victoria, Queen of England, 28 
Virginia Bill of Rights, 52, 90, 91 



Virginia Declaration of Rights, text of, 
259-261 

Virgirua Plan, 167, 204 

Virgirua Statute of Religious Free- 
dom, 89 

Voltaire, 64 

Voluntary way of life, 95-97 

Voting, 201-202, 203, 219-220 

Warren, Charles, 158-159 
Washington, George, 9, 122, 164, 169, 

179, 180, 181, 204, 226 
Washington Post, 176 
Washington's Farewell Address, 280- 

294 
The Wealth of Nations (Snuth), 64 
Webster, Daniel, 107, 164 
Webster, Pelatiah, 93, 157 
Welfare state, 237 
Whig philosophy, 199 
White, Andrew Dickson, 66 
Wilson, James, 172, 173, 200 
Witherspoon, John, 48, 70 
Women, regulation of hours worked, 

138 
Workplace regulation, 138 
World War I, 26, 28 

Zoning, 230 



About the Publisher 



The Foundation for Economic Education Inc., was established in 
1946 by Leonard E. Read to study and advance the moral and intellec- 
tual rationale for a free society. 

The Foundation publishes The Freeman, an award-winning 
monthly joumed of idesis in the fields of economics, history, and moral 
philosophy. FEE also publishes books, conducts seminars, and spon- 
sors a network of discussion clubs to improve understanding of the 
principles of a free and prosperous society. 

FEE is a non-politiccd, non-profit 501 (c)(3) tax-exempt organization, 
supported solely by private contributions and sales of its literature. 

For further information, please contact: The Foimdation for Eco- 
nomic Education, Inc., 30 South Broadway, Irvington-on-Hudson, 
New York 10533. Telephone (914) 591-7230; fax (914) 591-8910. 



If You Liked This Book, Youll Like The Freeman 

The Freeman is the source of the chapters in this book. Since 1956 
it has been published monthly by The Foundation for Economic Edu- 
cation (FEE). 

FEE'S founder, Leonard E. Read, always defended anything that's 
peaceful. The Freeman has, too. For this reason, it has been at the center 
of an intellectual battlefield. If you're now committed to this battle, 
you need intellectual ammunition. You also need moral support. 

The Freeman offers serious readers a unique source of free-market 
information. No other magazine, newspaper, or scholarly joumal in- 
troduces readers to so many implications of what the free society is all 
about: its moral legitimacy, its tremendous efficiency, and its liberating 
effects in every area of life. 

When the FEE began publishing The Freeman, there was literally 
no other source of such popularly written information on the free 
society. Today, dozens of institutions produce thousands of pages of 
material every year on the topic. 

Despite all the competition (and imitation!). The Freeman remains 
the most effective introduction to the fundamentals of the free society. 
For newcomers and old-timers, for high school students and Ph.D.'s, 
The Freeman offers new insights of significant value each month. 

Since 1956, The Freeman has been what today would be called 
politically incorrect, yet it rarely discusses politics. It was dismissed 
in 1956 by "people in the know" as a publishing oddity. Well, it was 
an oddity, and it launched an intellectual revolution in the United 
States. It was an oasis of liberty in a desert of statism. It has been 
guided by a constant star: a belief that responsible individuals, not the 
State, best discern their most personally rewarding opportunities and 
their most valuable services to others. 

Why should you read The Freeman? Because the world is still in 
the midst of a monumental battle of ideas. The collapse of European 
Communism in 1989 has only changed the terms of the debate. It has 
not changed the fundamental issues. 

What are these issues? Government compulsion vs. private choice, 
collective responsibility vs. personal responsibility, the wisdom of cen- 
tral planners vs. the forecasting skills of profit-seeking entrepreneurs, 
compulsory wealth redistribution vs. voluntary charity. Social Secu- 
rity vs. personal thrift. 

All over the world, the debate rages. Yet most people don't know 
where to begin to sort out fact from fiction. 



The Freeman is the place to begin. Why? Because its editorial policy 
is guided by this fundamental premise: the economic issues are at 
bottom moral. The free society rests on that most crucial of founda- 
tions: justice. 

The underlying debate between socialists and defenders of the free 
market is not technical; it is moral. It is a question of what is right, not 
what is cost-efficient. Freedom works because it is just. 

Do you agree? Then you ought to be reading The Freeman every 
month. Find out for yourself. For a free trial subscription, call (914)- 
591-7230. Or write to FEE, Irvington-on-Hudson, NY 10533. Do it now. 



AMERICAN HISTORY / GOVERNMENT 



The Foundations of 
American Constitutional Government 



Environmental protection. Civil rights, 
control Pornography... 



Gun 



Each year, Congress and the courts wrestle with controversial 
issues. And as the debates grow heated, each side claims that 
its view is the only one consistent with the United States 
Constitution. 

Who is right? Anyone can read for himself what the Constitu- 
tion says. But what did its Framers mean? 

In this important new book, 14 distinguished thinkers survey 
the ideas that motivated our Constitution's Framers — and 
what they had originally intended. 

The Foundations of American Constitutional Government is an 
ideal primer for teachers, students, public officials — and ^ 
every citizen who wants to better understand what makes our 
form of government unique. 

Special Bonus: An Appendix containing the U.S. Constitution 
and Bill of Rights, the Virginia Declaration of Rights, the Decla- 
ration of Independence, and Washington's Farewell Address. 



"In this collection of essays, we learn exactly why the 
Founders said what they said. The Constitution becomes a 
living document that speaks, not just to our past, but to our 
future.... A welcome relief in an era of judicial activism and 



loose constructionism." 










— Burton W. Folsom, Jr. 
Historian and author 




^■B" LJJ 




o 


■^^" t 




BIBL 







The Foundation for Economic Education, Inc. 

30 South Broadway 
Irvington-on-Hudson, New York 10533 

Distributed to the Trade by 
Associated Publishers Group 

$14.95 U.S. ^^' 



ISBN 1-57246-018-0 




781572"460188 



51495>