The foregoing sample, of available material, presented in this Part II is not only indicative of the profoundly sound basis of the Twelve Basic American Principles discussed in Part I but is itself sufficient to make clear the magnificent role in history, and especially in American history, which was played by The Founders--notably the signers of the Declaration of Independence and of the Constitution. It is fitting, however, to continue this discussion by considering in some detail, in the following pages, some additional aspects of the obligation of the present generation and American Posterity to The Founders--why respect should be shown in practice for the Twelve Basic American Principles as an important way in which the people can render due honor to The Founders.
Soundness Ethically, Morally, Socially and Otherwise
The traditional American philosophy and system of limited government require strict limitation of the power of the Federal government, in the economic field, to regulation in the particulars specified in the Constitution--excluding any control by government of the people's economic activities, according to the controlling intent of those who framed and adopted the Constitution in 1787-1788 and thereafter each of its amendments. This economic aspect of the philosophy and system is entirely in harmony with the other aspects--notably the related ethical, moral and social aspects in their broadest and most inclusive connotations. Brief consideration of this view is of particular significance and value at this point.
Individual Enterprise, as contemplated and featured by the traditional American philosophy and system, means private, competitive, individual enterprise or activity concerning things economic. The soundness of this philosophy and system as a whole--ethically, morally, socially and otherwise--necessarily characterizes each and every one of their constituent parts, including Individual Enterprise.
The fight to enjoy the freedom of Individual Enterprise, for private profit, together with the intimately related right to private property, constitute the main elements of Man's economic liberty. This right to economic liberty is the inseparable and indispensable economic aspect of the indivisible whole of Individual Liberty. As Jefferson stated in his first annual Message to Congress in 1801:
"Agriculture, manufactures, commerce, and navigation, the four pillars of our prosperity, are the most thriving when left most free to individual enterprise."
Jefferson's statement holds true equally as to all other parts of the economic realm, according to the American philosophy. Benjamin Franklin expressed a similar view (perhaps about 1766) in his "Remarks on the Plan for Regulating the Indian Affairs" as follows:
"It seems contrary to the Nature of Commerce, for Government to interfere in the Prices of Commodities . . . It therefore seems to me, that Trade will best find and make its own Rates; and that Government cannot well interfere, unless it would take the whole Trade into its own hands (as in some Colonies it does), and manage it by its own Servants, at its own Risque."
During the colonial period, the British government exercised full control over major aspects of the empire's economy and manipulated trade to Britain's benefit at the expense of the economy of the colonies. Some of the ethical, moral and social aspects of this part of economic Liberty--the Individual Enterprise part of Man's Freedom in the economic realm--as viewed by the traditional American philosophy, will now be considered.
First, Individuals must deal with each other by free choice, by mutual and voluntary arrangement, so that the result can be mutual trade for mutual benefit in the light of rational self-interest, with due respect by each for the other's equal rights.
Second, the gain permitted by the private-profit feature of the Individual Enterprise system is The Individual's reward for giving superior service, or superior benefits (of the product purchased), to those with whom he deals--offering them what they prefer to buy in the face of competition with all other offerings. The more the sales and resulting profit he makes, due to the greater value he offers, and the more firmly his superior service becomes established through "repeat" sales to well-satisfied customers, the greater the proof of the value of his services to them as well as to society, to the general welfare, in various ways. This special service, in some instances, takes the form of making various standard items offered more conveniently available to the customer, as in the case of the neighborhood drug-store; the special convenience is the special service. The seller's successful demonstration of sound practices and superior standards helps to influence others to emulate his example and thereby to raise the level of performance by other sellers. This gradually improves the material environment of the people generally, directly and indirectly in a number of ways, while giving evidence of the soundness of the system and making its foundations more secure economically and in the minds of the people, which helps to form beneficent customs and traditions.
Third, Man's freedom in the economic realm--that is, freedom from Government-over-Man--including the freedom of the "free market" economy operating on the basis of the private-profit motive, presupposes the existence of an ethical environment. Such an environment is created by the multiple, beneficent influences within any group, neighborhood, community and society stemming from all of the sound and constructive aspects of life. These influences include, for example, the religious, ethical, moral, social, educational, civic, fraternal, political, as well as the material. An additional and most compelling factor is self-interest based on the desire of The Individual to be known and accepted as an honorable, dependable and entirely worthy participant in the activities of the society--including mutual-trade transactions. In the background always is fear of society's potential disciplinary measure--fear by an offender of being driven out of business by group and community ostracism due to any dishonest or unfair treatment of others, including grossly avaricious conduct.
The potency of the foregoing elements combined, contributing to self-discipline among traders in the "free market," can be readily understood by any one familiar with neighborhood and community life in any locality in America, viewed traditionally. It needs to be kept in mind that any large community, even a city, is merely an aggregation of a number of such neighborhoods. For instance, even in a huge section of a big city such as the "Wall Street" financial community in New York City, nothing is more valuable than a man's reputation for probity ("his word is as good as his bond") and nothing is more disastrous for him in business than publicity of his violating an agreement; and all the more true the smaller the community.
A man's reputation for honest dealing is not only a big asset in economic life but so vitally important to profit-making over the years that the number of these who offend seriously against community or trade-group standards are relatively few indeed. The percentage of such offenders is probably quite similar to the percentage of those who prove themselves unworthy and unacceptable in other ways and in other walks of life. Any instance of an exception, for some special reason peculiar to a particular period or trade or locality, only serves to prove the general rule.
In America the traditional philosophy and system of government--designed primarily to make secure each Individual's unalienable rights against infringement by other Individuals, as well as by government--safeguards against evils in the economic realm such as monopolies through which a person or group might try to disrupt, or eliminate, the freedom of action of others and the free play of the "free market" economy with regard to some commodity or type of business. The worst type of monopoly, government monopoly, through either government control or government ownership, is of course barred above all else under the traditional American philosophy and system. The correctness of the foregoing statements is not affected by the fact that it took time to evolve effective measures to combat the proneness of some men to seek monopolistic control in this or that part of the national economy; nor by the fact that violators are occasionally discovered and punished--their relative fewness being proof of the main point here.
Under the traditional American philosophy and system, the resulting ethical environment in the economic realm helps greatly to give reasonable assurance of ethical conduct by Individuals. This applies to Individuals acting singly, in groups and in organizations such as associations and corporations. This makes the surrounding atmosphere of the "free market" economy in general anything but sordid, evil or degrading to Man. On the contrary, this helps to make it sound, constructive and enduringly fruitful, judged by longtime records of the traditional American system. It has proved to be the most beneficent system of economic operation by a people--from the standpoint of the people in general through the generations--ever devised in human history to serve the supreme end and goal, which are to make fruitful and secure Man's Liberty against Government-over-Man. This means to make secure Man's unalienable rights in general, through the effective operation of his economic liberty as an inseparable part and the material mainstay of the indivisible whole of Individual Liberty. Any exceptions from time to time have only served to prove the rule.
Fourth, as proved by life in any American community, the property (including money) accumulated by Individuals, through operation of the Individual Enterprise system stimulated by the private-profit motive, is generally used soundly. This means constructively and even beneficently in the main. It is used by most Individuals not only for the support of self and of all of his dependents, so they can enjoy continued physical existence (the minimum meaning of life), but also for that supremely important purpose: the support of their unalienable rights in general. By this course, The Individual sets a good example for all others. This encourages all Individuals in the community and in the larger society to stand up for their equal rights, especially the right to Freedom from Government-over-Man, while demonstrating how this can be done successfully. This creates a salutary "climate" conducive to the well-being of Free Man in the neighborhood and in the entire country.
This indicates the impregnable foundation, the firm basis, for the sound ethics of rational self-interest for each Individual. Multiplied by the number of people involved--for the whole country--this contributes to a strong, constructive, enduring community of Free Men operating normally on a reasonably high plane, morally and governmentally, in a manner always consistent with the duty factor of Individual Liberty-Responsibility and with the primary meaning of Individual Liberty--Freedom of Man from Government-over-Man. Again, any relatively few violators of this standard constitute merely the exceptions which help to prove the general rule.
Fifth, as Man operates successfully on the basis of the private-profit motive, he accumulates property beyond the requirements of his and his dependents' necessities and normal life in general, judged by neighborhood and community standards. This generally results in most Individuals making financial and other contributions to betterment of group, neighborhood, community and society at large--to the higher things of life, to be shared by self and others, embraced by the all-inclusive words: "Life, Liberty and the pursuit of Happiness." Such contributions, varying in form and frequency, are made moreover on the voluntary basis of the freedom of choice of Man, free in mind and spirit--much of the time on his own initiative, without request by others. Contributions by way of personal service in infinitely varied ways are commonly made by a multitude of persons daily in the communities of America. This helps greatly to create and maintain the previously-mentioned ethical environment. The average American community has over the generations proved this to be true in such remarkable degree as to cause this aspect of life, in the traditionally "free economy" civilization in America, to constitute a high goal to which other peoples have long looked with amazement and most with admiration and longing. The fact that an Individual's service to community often leads to material benefits to him--for instance, the additional rewards through increased employment by the public in his work or profession due to prominence gained in serving the community--as well as to inner fulfillment, does not alter the Soundness of such service or the integrity of The Individual's motivation in this connection.
The mixture of direct self-interest with indirect self-interest through community service, traditionally so typical of the American scene, is potent proof of the efficacy of the private-profit motive (within an ethical environment) in serving the higher things of life for The Individual and for society--for the "general welfare." This reflects the truth that society's ethical level is but the sum of that of all Individuals, on the average, whether considered from the standpoint of neighborhood, community, region, or country as a whole. (Note especially the Dickinson quotation on page 74, ante.)
Sixth, Man's indulging the demands of rational self-interest, through operating on the basis of the private-profit motive, is in harmony with the "self" factors of self-governing, genuine Free Man. These factors are major elements of Individual Liberty-Responsibility. They are as follows--the spiritual: self-respect; the economic: self-reliance; and the political-social: self-discipline. (See pages 88-90, ante.)
Effective self-discipline by Individuals, in making the "free market" economy function soundly, contributes to the reality of the surrounding ethical environment which is essential to its enduring success. This forestalls and precludes any real, or pretended, excuse for discipline being imposed by the government. In last analysis, this is the best safeguard against Government-over-Man. Self-discipline is a main element of Individual Liberty-Responsibility. It is the alternative to being disciplined, just as self-government is the alternative to being governed.
The foregoing six considerations are, of course, only a part of those embraced by the subject as a whole. They help to clarify the fundamental value of economic liberty--including Individual Enterprise and the related private-profit motive--as an inseparable part of the indivisible whole of Individual Liberty-Responsibility.
A point needs noting here to clarify thinking. It is that the frequently heard term "free enterprise" is not accurately descriptive and involves some misleading connotations. It is an inadequate translation of the French phrase: laissez faire et laissez passer; which, roughly translated, means leave me alone and let me work. This phrase became popular in France generations ago as a protest against the strict and infinitely-detailed government controls of the people's economic activities, such as manufacturing. The term "free enterprise" is often misinterpreted as meaning free in the sense of license--not in the true sense of Free Man operating in an ethical environment and with due respect for the equal rights of others and, of great importance, with freedom from Government-over-Man, as discussed above. The term should, therefore, be avoided in favor of the more soundly and accurately descriptive phrase: "Individual Enterprise"--meaning individual, private, competitive enterprise within an ethical environment, as exemplified by the American scene traditionally, operating always with due respect for the equal rights of others. The foregoing assumes, of course, showing in practice due regard for just laws which are expressive of "just powers" (to use the term of the Declaration of Independence) and designed to protect the equal rights of all Individuals through proper government regulation--as authorized by the Constitution--but not government control, or ownership.
The conclusion, as to this aspect of Man's Freedom, is that on the basis of the foregoing considerations alone--though merely a brief and partial commentary--it must be conceded that the morality and sound ethics of rational self-interest of The Individual are readily apparent and soundly founded. Even this brief discussion proves the point here: that the private-profit motive is sound, constructive and an essential element of the economic system required for the preservation and support of The Individual's God-given, unalienable rights--chief of all Liberty against Government-over-Man.
Any human activities, like human nature, have their weaknesses and imperfections. Though true with regard to the American people's activities in the economic aspect of life, this has to be judged comparatively--in contrast to the infinitely greater imperfections of any alternative, economic system ever devised by Man, especially any other system which could ever be conceived but would lack the prime requisite: Freedom of Man from Government-over-Man, which is of the essence of the traditional American system. The American philosophy condemns this lack and rests secure in its comparative virtue--its infinitely greater value to Free Man. The unsoundness of any unfavorable comparison of this American system with some theoretically perfect system, which has never existed anywhere in the world in all history--a tactic resorted to only by critics who are either themselves confused or seek to confuse others--is so self-evident as to need mere mention in passing and not any discussion.
Limited Government under the Constitution in Relation to Religious Considerations Which the Declaration of Independence Makes Express
The Constitution was designed to translate into enduring, governmental reality the ideals, goals and principles of the Declaration of Independence. This is made clear by the inspiring words of the Constitution's Preamble. It provides the connection between these two documents--the chief link being the word "Liberty" in both--with regard especially to the expressly stated religious considerations underlying the traditional American philosophy as defined in the Declaration, notably the concept of God-given, unalienable rights.
Belief in God as the Creator of Man and the giver of his unalienable rights--unalienable because God-given--is the basis of this philosophy; which is an indivisible whole and must be accepted, or rejected, as such. The Constitution's primary role, or function, was intended to be the safeguarding of these rights of every Individual--partly through so limiting the power of the Federal government that it could never interfere with the religious life and practices of the people of the separate States (the people in each State being in complete control of pertinent policy for themselves), always involving implicitly recognition of belief in God as the only basis of the unalienable character of these rights.
The traditional American philosophy's first and fundamental principle is that "The Spiritual Is Supreme," that Man is of Divine origin and his spiritual, or religious, nature is of supreme value and importance compared with things material. This principle was the basis of the assertion in the Declaration of Independence that ". . . all men are created . . . endowed by their Creator . . ." This philosophy teaches that belief in God is the fundamental link which unites the adherents of all religions in a spiritual brotherhood under the common fatherhood of God; and it allows for no differentiation between them as to this unifying conviction.
This applies not only to those who adhere to some one of the organized religions but also to The Individual holding a strictly personal, but genuinely religious, belief--however unorthodox or strange it may seem to others. Belief in God is the common denominator here; but no element of required, religious conformity is involved.
America was colonized originally by adherents of the Christian religion, in the main, and the vast majority of them were Protestants of various denominations. The Founding Fathers nevertheless adhered faithfully to the all-embracing character of the approach of the American philosophy to religion, as indicated by the affirmative and express statement in the Declaration, quoted above. This approach was also indicated, negatively, in the Constitution by way of its denying to the Federal government any power pertaining to religion--no such power was included among the few powers which were delegated to this government by the people. This denial of such power was confirmed by the later addition of the First Amendment, which expressly prohibits the Federal government from making any law "respecting an establishment of religion, or prohibiting the free exercise thereof . . ." (Here "an establishment of religion" was intended to mean only an official church organization--one controlled, supported and preferred by the government--such as the Church of England organization which then existed in some of the States.) America is, in fact, a haven for all religions and their adherents; her traditional philosophy in this regard is actually practiced.
This aspect of the American philosophy was emphasized strikingly when discussion was in progress in the legislature of Virginia regarding the Bill to establish religious freedom--finally adopted in 1786. As Jefferson observed in his "Autobiography," it was proposed during the long-continued discussion of the Bill that the reference to "the holy author of our religion" (meaning God) be changed so as to refer to Jesus Christ; but the proposal was rejected by vote of "a great majority," as Jefferson (the author of the first draft) stated:
". . . in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination." ("Mahometans" means Moslems, also called "Musselmen." Here "Infidel" means any religious believer although a non-Christian.)
The foregoing comment about America's being a haven for all religions is sound even though in some early colonial communities of a strongly religious character, such as the initial ones in Massachusetts, there was extreme intolerance on the part of the governing group which impelled some dissenters, such as Roger Williams, to leave and found settlements elsewhere. By the time of the Declaration of Independence, however, insofar as government was concerned, religious toleration was widespread in America; although it was some decades before every "establishment of religion" (to use the term of the First Amendment), as defined above, had been abolished by all of the States which had one in 1791 when the First Amendment was adopted.
It is true that the traditional American philosophy is basically religious and that America and Americans in general are a religious country and people. It is equally true that the American people are predominantly Christian in their beliefs. It is, however, unsound to characterize the Constitution of the United States government as being either religious, or Christian. The Constitution is a charter adopted by the people for defining the framework of the federated system of government composed of the central Republic and the State Republics. No such charter, in and of itself, can properly be classified as being religious; just as a government, in and of itself, cannot be so classified. This truth was the basis of the statement in the Treaty of Peace and Friendship entered into by President John Adams, a devoutly religious man and a steadfast Christian, in 1797, between the United States and Tripoli of Barbary, that:
"As the government of the United States of America is not in any sense founded on the Christian Religion,--as it has in itself no character of enmity against the laws, religion, or tranquillity of Musselmen . . ." [Moslems]
The non-religious character of government becomes more obvious when it is considered that, under the American philosophy, the sovereign people create their governments as their tools; and no tool can be called religious. To continue with this metaphor, the government, as a tool, is created by the people according to the "blueprint" (the Constitution) which they design in order to help define the characteristics and operating limits of this tool; and no "blueprint" can be classified as religious. As a further illustration, consider the architect's "blueprints" (drawings) for a church building; the edifice will be for religious purposes but the "blueprints" cannot properly be labelled religious in nature, in and of themselves.
This would be true even if it were possible for certain purposes to classify as "religious" a government which is completely dominated by, and an official reflection of, the hierarchy of some church or denomination. Nothing could be more antithetical to the American philosophy than to consider the United States government in any such category. As President Jefferson observed in his Second Inaugural Address (1805):
"In matters of religion, I have considered that its free exercise is placed by the constitution independent of the powers of the general government. I have therefore undertaken, on no occasion, to prescribe the religious exercises suited to it; but have left them, as the constitution found them, under the direction and discipline of state or church authorities acknowledged by the several religious societies."
By "state" authorities acknowledged by the several religious societies, Jefferson referred to those States in which the previously-mentioned, official, church organizations, or establishments--"establishments of religion"--still existed; some of which continued to exist thereafter for a number of years, in Massachusetts until 1834.
No Constitution or government, Federal or State, in America can soundly be called "religious"; and it is equally unsound, of course, to classify any of them as being Christian. This applies also to the Declaration of Independence because it is a political statement; which is true despite the fact that it expresses, in part, the fundamentally religious nature of the American-philosophy. To confuse the religious with the political in this connection impedes clear thinking and sound comprehension of the real values in both of these fields.
The infinite greatness of the Declaration of Independence and the Constitution as political documents, and their supreme and timeless value to all Americans--and as guidelights to all peoples--do not depend on mistaken adulation due to confused thinking on the basis of the erroneous assumption that they are religious in nature.
The foregoing conclusions do not, of course, conflict with the idea held by many people that the men who framed the Constitution were religiously inspired in performing this great task. This view is the basis, for example, of one of the tenets of two religious sects--the Church of Christ, Scientist (Christian Scientists) and the Church of Jesus Christ of Latter Day Saints (Mormons)--whose members are admonished, if not obligated, by the teachings of their respective founders, as a matter of religious duty, to be loyal to the Constitution. There is striking and express support for the belief in such religious inspiration on the part of The Framers in a statement by Benjamin Franklin--not ardently affiliated with any organized religion, with any "establishment of religion," but ever a firm believer in God; though he is erroneously assumed by some to have been a skeptic, a non-believer in God, because of his fame as a scientific-minded person. This statement was published by him during the period of ratification of the Constitution, in The Federal Gazette & the Philadelphia Evening Post of April 8, 1788, in part as follows:
"To conclude, I beg I may not be understood to infer, that our general convention was divinely inspired when it formed the new federal constitution, merely because that constitution has been unreasonably and vehemently opposed; yet I must own, I have so much faith in the general government of the world by PROVIDENCE, that I can hardly conceive a transaction of such momentous importance to the welfare of millions now existing, and to exist in the posterity of a great nation, should be suffered to pass without being in some degree influenced, guided and governed by that omnipotent, omnipresent and beneficent Ruler, in whom all inferior spirits live and move and have their being." (Text per newspaper original.)
In the preceding year, during the debates in the Framing Convention, Franklin had recommended the invocation of Divine guidance of the deliberations of that body, partly in these words:
"The small progress we have made after 4 or five weeks . . . is methinks a melancholy proof of the imperfection of the Human Understanding . . . how has it happened, Sir, that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings?"
(The Franklin quotations on page 5, ante, are of particular interest here.) That Divine Providence--Man's Creator, as proclaimed in the Declaration of Independence--was influential in guiding The Framers in their work in the 1787 Convention is a belief shared by others, too. Note, for example, the assertion by Charles Pinckney, one of this group, in 1788 that he was skeptical at the outset as to the prospect of success of the undertaking due to the conflicting interests involved, and was amazed at the final result, believing that:
"Nothing less than that superintending hand of Providence, that so miraculously carried us through the war (in my humble opinion), could have brought it [the Constitution] about so complete, upon the whole."
Hamilton expressed a similar view soon after the Framing Convention adjourned, in a published essay commenting on the proposed Constitution's system of government:
"For my own part, I sincerely esteem it a system, which, without the finger of God, never could have been suggested and agreed upon by such a diversity of interests." (Emphasis Hamilton's.)
Madison agreed, as he made expressly clear in The Federalist (no. 37). One more illustration is the resolution adopted by the U.S. House of Representatives on September 25, 1789 recommending that the President proclaim a day of Thanksgiving to God and prayer by the people of the entire nation:
"acknowledging, with grateful hearts, the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a Constitution of government for their safety and happiness."
It is sometimes mistakenly asserted that the words of the original Constitution contain no recognition of the existence of God. Besides a formal reference in the closing (execution) clause: "the year of our Lord 1787," Article VI requires an oath, or affirmation, of office by all officials, Federal and State, to support the Constitution. This is in the same sentence prohibiting any religious test for Federal office; which makes it clear that such an oath of office was not considered by The Framers and Adopters of the Constitution to be such a prohibited test. As understood by them, as well as their fellow leaders and the people in general, such an oath (or affirmation, in the alternative, by those whose religious convictions bar their "swearing") is fundamentally religious--in effect and impliedly acknowledging belief in, and invoking punishment by, a Supreme Being (as the oath-taker conceives such a Being, without any degree of enforced, religious conformity) for any failure to tell the truth or other falsification, as the case may be. The reference by The Framers in this document in this indirect way to religion, evidencing recognition of God, was emphasized by John Quincy Adams in his previously quoted "Jubilee" address on April 30, 1839:
"The constitution had provided that all the public functionaries of the Union, not only of the general but of all the state governments, should be under oath or affirmation for its support. The homage of religious faith was thus superadded to all the obligations of temporal law, to give it strength; and this confirmation of an appeal to the responsibilities of a future omnipotent judge, was in exact conformity with the whole tenor of the Declaration of Independence--guarded against abusive extension by a further provision . . ." [against a religious test for Federal office].
To repeat, the Constitution cannot soundly be classified as a religious document; but in the foregoing respects, for example, it is intimately bound up with recognition of the existence of God and with an assumption of the profound connection of this recognition with sound self-government. Furthermore, as the pertinent quotations presented in the first portion of this study-guide indicate, it was the firm conviction of The Founders that religion is the basis of morality and that firm religious conviction and faith are, therefore, essential to sound morality among a people; just as sound morality was considered by them to be essential to sound character of Individuals and of the people of a country, as the only firm basis upon which successful self-government could be created and endure.
It is also of special interest to note in this connection that the philosophy of the American people, through the generations preceding the period of the Declaration of Independence and the framing of the Constitution as well as during this period, was characterized in the main by a dominant element of the religious. This philosophy, underlying these two instruments as discussed previously, was as we have seen actively and substantially influenced by religious leaders--chief of all clergymen of New England in the long course of their own gradually developing struggle toward "Liberty and Independence" within the realm of religion as well as with regard to their role as citizens in the field of government: that is, independence of country from foreign control accompanied by Individual Liberty, especially in the realm of conscience and all things religious--freedom of conscience and freedom of The Individual to reason and to decide religious questions himself without interference by any superintending, earthly Authority. These developments within the realm of religious thinking strongly influenced and fostered the kindred developments, in the governmental realm, which culminated in the Declaration of Independence and the Constitution. Various sound volumes devoted to this subject--especially the role of the New England clergy in the development of the philosophy leading up to 1776, make inspiring and enlightening reading for any student of the fundamentals of the traditional American philosophy. They participated in governmental activities, moreover--notably in Town-meetings--during consideration of fundamental matters; and, for instance, thirteen clergymen were members of the Constitutional Convention of 1779-1780 in Massachusetts which framed this State's first Constitution.
There is an important consideration which needs to be kept in mind by every generation, including especially the Clergy and all others particularly interested in preserving religious liberty--freedom of conscience--in America, with fullest protection under the Constitution. This is that freedom of conscience and religion is only one aspect of the indivisible whole of Individual Liberty and must stand or fall with the other parts; it cannot be treated separately and preserved, as observed in 1776 by the Reverend John Witherspoon--president of Princeton College and a signer of the Declaration of Independence:
"There is not a single instance in history in which civil liberty was lost, and religious liberty preserved entire. If therefore we yield up our temporal property, we at the same time deliver the conscience into bondage."
Samuel Adams asserted the same conclusion as to civil and religious liberty in 1774: "they rise and fall together." Hamilton also observed in the same year in this regard that: "if the foundation of the one be sapped, the other will fall of course." In the 1785 document drafted by Madison: "A Memorial and Remonstrance Against Religious Assessments"--opposing a tax in Virginia to support "teachers of the Christian religion," it was stated in conclusion:
"Because, finally, 'the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience' is held by the same tenure with all our other rights."
An impressive expression of a similar view was contained in a letter written by the General Association of Congregational Ministers of Connecticut, in their Annual Meeting on June 22, 1774, to the clergy of beseiged Boston, stating:
"We consider you as suffering in the common cause of America--in the cause of civil liberty; which, if taken away, we fear would involve the ruin of religious liberty also . . ."
In other words, religious liberty and all other liberties stand, or fall, together; they can be secure only to the extent that their governmental foundation is preserved in its full integrity, only to the extent that the Constitution is respected in its original, true and only meaning--as intended by those who framed and adopted the initial instrument and each amendment--subject only to the people's exclusive power to change it, which can be done solely by amendment.
The final topic, in this presentation of background material, concerns the economic aspect of Individual Liberty and will now be considered in some detail.
The Judicial Branch of the Federal government--authorized by Article III of the Constitution--is a creation and an instrument of the sovereign, self-governing people. By their permission and grant of limited power to the Judiciary, this Branch is assigned the role, in principal part, of helping to enforce the Constitution's system of limited-power government through acting as a check--as intended under the constitutional system--upon the other two Branches to the end of keeping them within the prescribed limits of their power, respectively; while the judges themselves are, of course, obligated to keep strictly within the limits of their own power as fixed by the same system. The limited-power and limited-function character of the Federal courts, including the Supreme Court as the highest judicial authority, is in keeping with the basic purpose of all governments in America as defined in the Declaration of Independence: to exercise the "just powers" (limited powers) granted to them by their creator, the people, in order primarily to make and keep secure the people's God-given, unalienable rights.
The Constitution's limits on the power of government, including the limits on the power of the courts, are of real significance only to the extent that they are respected in practice. The limits on the power of the Federal courts, chief of all the Supreme Court, under the constitutional system, merit careful consideration in this discussion of limited government.
The Federalist is a rich source of knowledge in this regard. In the following comments, reference is made to some of its pertinent essays ---notably numbers 78-83 devoted mainly to the subject of the Judiciary. It is believed that readers of this study-guide will find certain portions of that material of such great interest and practical value to the clarity of their thinking, which is of the gravest importance to enlightened and sound self-government in America, that it will be helpful if ready reference can be made to these selected portions of the original text; so they are presented in a special section in the Appendix (pages 271-286, post). Main additional references are the volumes reporting the debates in the Framing Convention of 1787 and in the State Ratifying Conventions in 1787-1788: The Records of the Federal Convention of 1787, four volumes edited by Max Farrand, and The Debates in the Several State Conventions on the Adoption of the Federal Constitution, etc., edited by Jonathan Elliot, in five volumes (fifth presenting debates in Framing Convention).
It merits stressing at this point that there is no mystery about the fundamentals of self-government under a written Constitution. Common sense is all that is needed to understand the subject in its essentials. As John Adams stated, with regard to the virtues of the forefathers in America before his day:
"They knew that government was a plain, simple, intelligible thing, founded in nature and reason, and quite comprehensible by common sense."
This applies to all aspects of constitutionally limited government, including the meaning of the Constitution which is readily understandable if considered with common sense and studied adequately. As Chief Justice John Marshall stated for the Supreme Court in the 1824 Gibbons case (page 188 of opinion):
"As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said."
During the ratification debates in 1787-1788, one of The Framers, Oliver Ellsworth, who later became Chief Justice of the United States, highlighted the common-sense wording of the Constitution, stating:
"It is an excellency of this Constitution that it is expressed with brevity, and in the plain, common language of mankind."
The common-sense approach applies to all aspects of constitutionally limited government including the limited role assigned, and the limited power granted, by the people to the Supreme Court as a part of the constitutional system.
Some essentials regarding this limited role and power of the Supreme Court will now be considered--as understood and intended by those who framed and adopted the Constitution and created the constitutional system, according to their writings, notably The Federalist, as is clear when they are studied with requisite competence and intellectual integrity: free from warping bias stemming from any hostility to The Founders and their handiwork.
1. The Constitution is controlling, as the "supreme Law of the Land." Article VI makes it supreme over all laws (legislative Acts)--as well as over treaties, as we have seen--and requires all judges and other officials, Federal and State, to be "bound by Oath or Affirmation, to support this Constitution." It automatically makes null and void all governmental Acts (laws), decisions, orders, pronouncements, and actions in conflict with it--null and void from the time each one may occur. (See, for example, The Federalist, nos. 33 and 78 by Hamilton.) "Affirmation" is permitted for those whose religion forbids "swearing."
2. The original meaning is controlling, as determined by the intent of those who framed and adopted the Constitution in 1787-1788 and by those who framed and adopted each amendment on behalf of the sovereign people, who alone can change it as their fundamental law and only by amending it. This was commonly understood in the 1776-1787 period, as noted in The Federalist number 53 by Madison:
"The important distinction so well understood in America between a constitution established by the people, and unalterable by the government; and a law established by the government, and alterable by the government, seems to have been little understood and less observed in any other country."
The government is powerless to change the Constitution; and this applies to the Judiciary, acting alone or in collaboration with the other Branches. A particularly impressive restatement by the Supreme Court--of the basic rule that "the original meaning is controlling"--in the 1905 South Carolina case, is presented in a special section of the Appendix (page 291, post).
3. The original meaning is ascertainable from the Constitution's own words--construed in the light of the intent of the framing and ratifying bodies with respect to the particular provision (of the original instrument, or any amendment) under consideration--as supplemented by all pertinent historical records which cannot change or be changed, just as that intent is unchangeable.
4. The strictly limited role of judges in "interpreting" the Constitution--the role as clearly defined under the constitutional system and well understood by all competent and .reliable authorities ever since 1788--is to ascertain, define and apply this intent and meaning solely on the basis of its words and the above-mentioned historical records. That is, merely to clarify--not to make--the fundamental law (which the Constitution itself determines) as intended by those who framed and adopted it (per pars. 2 and 3 above). As explained particularly in The Federalist number 78 by Hamilton, in so doing judges are obligated to apply their honest Judgment to such ascertainment, definition and application; and not to indulge their Will, or whim, in disregard of the original intent and meaning mentioned above. As Hamilton there also emphasizes, in deciding cases thus involving principles of the Constitution, judges--chief of all those on the Supreme Court as the highest judicial authority--are obligated to respect precedent (to abide by prior decisions which have so ascertained, defined, and applied that unchangeable intent and meaning on the basis of those historical records). Therefore, they may not change their minds as and when they please concerning the meaning of this fundamental law, concerning the definition of these principles. Any such power so to change their minds could not but result in its belittlement, if not doom, as the intended source and basis of stability of limited government in America--as the reliable guide for the conduct of the people and the dependable bulwark of their liberties. In this connection, decisions by the Supreme Court must be made impartially, "according to the rules of the Constitution," as Madison asserted in The Federalist number 39. (See also number 81, by Hamilton.)
5. Interpreting, or construing, the provisions of the Constitution properly, in keeping with the foregoing traditional precepts--which is all that judges are empowered and authorized to do under the constitutional system--is entirely different, and must always be distinguished, from the role of judges in the entirely separate field of ordinary, day-to-day, law (called Common Law) which involves not the Constitution but judge-made rules pertaining to matters such as contracts, Wills, real estate transactions, and so on. Judges may, of course, change the legal rules which they themselves have power to make (separate and apart from the Constitution and legislative Acts); but they have no power to change either legislative Acts--which the enacting, legislative body alone may make and change---or the Constitution, which the people alone may make and change. This is elementary, and a controlling principle, in constitutional law--under the constitutional system--as intended by The Framers and Adopters. The principle of stare decisis (meaning "adhere to prior decisions and do not disturb settled points") is the general rule even in the field of judge-made law (Common Law), because Law is designed primarily to provide a stable guide for the people's conduct of their affairs and not to be changed from day to day according to the whims of judges; which indicates the difference between the antithetical systems of Rule-by-Law and Rule-by-Man. If Justice requires, however, in a particular case in this field of judge-made law, the judge of course has power to disregard prior judge-made rules and to make a new rule to fit the facts of that case. This stare decisis principle permits such changing only in the field of judge-made law (the Common Law) because it has nothing to do with the field of people-made law: that is, the people's fundamental law, the Constitution, which the people alone have the power to make and change; as various Supreme Court cases have made entirely clear, notably the 1935 Dimick case. Nothing but common sense is needed to understand this vitally important difference between the two entirely separate fields of judge-made law and people-made law.
6. Judges possess the power of "judicial review" (reviewing legislative Acts, or any governmental pronouncements or actions--so as to decide their validity under the Constitution) under the American constitutional system due to the basic principles of limited government, although there is no express mention of this judicial power in the Constitution, as Hamilton pointed out in The Federalist number 81--also noting there the point that the Constitution must always be considered the controlling standard and supreme over laws. (This point is discussed in other numbers also, for example 33, 39, 78 and 80.) The fact that the courts have the power, and are under an obligation, so to enforce the Constitution--by deciding in appropriate cases that all laws found to be in conflict with the Constitution are null and void from the start--was well understood and repeatedly stated in the Framing Convention and in the State Ratifying Conventions: notably by Madison, Gerry, King and Mason in the Framing Convention and, in State Ratifying Conventions, by a number of members including two who later became Chief Justice of the United States: Oliver Ellsworth (Conn.) and John Marshall (Va.), also by James Wilson (Pa.) who became a member of the Supreme Court. It is important to keep in mind that it is only the Constitution itself which makes a conflicting law void, from the start, and not the decision of the Court--which has power merely to ascertain and declare this to be the fact; therefore the court has the power thus to clarify and explain the existing legal situation (under the Constitution), meaning the existing law, but not create it--not make law in the constitutional field. The principle that a constitution is supreme and makes void all laws in conflict with it was well understood in America long before the United States Constitution was framed--for instance, in arguing in 1761 in a Boston court against the infamous "Writs of Assistance" law enacted by Parliament, James Otis declared: "An act against the constitution is void." (Likewise in 1764 in his "The Rights of the British Colonies.") Debatable as to that (British) "constitution," it is unchallengeable as to a written Constitution of the American type. This is unquestionably correct as to a law in conflict with a written Constitution such as the United States Constitution.
7. Judges are limited by Article III, Section 2, to deciding genuine controversies in cases properly brought before any court, including the Supreme Court---controversies which are capable of final settlement by a court in accordance with legal principles. They have no power to offer "advisory opinions," or to consider political issues (which are properly determinable only by the Executive or the Legislative Branches). This is in accordance with the Constitution's definition of the judicial authority and jurisdiction of the Federal courts. Judges are, of course, powerless to enlarge their own authority, or jurisdiction; as Hamilton emphasized in The Federalist number 83.
8. Supreme Court decisions do not constitute the "supreme Law of the Land." Its decision in a case is limited by the facts involved and constitutes only "the law of the case," binding merely the parties to the case. This is true as to all cases and all courts, including the Supreme Court. Even in a case involving consideration of the Constitution, therefore, the Supreme Court's decision--involving a mixture of legal rules and principles as applied to the facts involved--cannot and does not constitute a part of the "supreme Law of the Land;" which the Constitution (Article VI) defines as including only this fundamental law itself, as well as Federal Laws, meaning Acts of Congress, and treaties (which conform to the Constitution).
9. Once the meaning of any part of the Constitution has been properly ascertained, in keeping with the original intent (Paragraphs 2 and 3 above), and defined accordingly as a principle of the Constitution by the Supreme Court as the highest judicial authority on the basis of all pertinent, historical records (which can never change or be changed), so as to clarify the original intent and meaning, this definition--as first determined by the Supreme Court--becomes in effect a part of the Constitution's words thus construed (as concerns the Court's power to interpret) and cannot thereafter be changed by the Court; because the records and intent are unchangeable. This meaning and principle--as so ascertained and defined for the first time---may thereafter be nullified and supplanted only by the people and only by amendment. Once the Supreme Court thus first determines the definition in any particular, it thereby exhausts its power and authority as to this particular topic and thereafter has no power to make any new and conflicting definition of the Constitution's words involved--according to the constitutional system as understood and intended by the Framers and Adopters in 1787-1788. This is necessarily true because any power of the Court to "change its mind" at its pleasure--to re-define at will the words of the people's fundamental law--would be a power without limit; and the effect would be endless "changing of mind" and endless changing of definitions so as to have judge-made law in place of the Constitution's people-made law to the doom of the intended stability as a guide for the people's conduct and as a bulwark of their liberties. This would be a monstrous absurdity, according to the American philosophy of Man-over-Government proclaimed in the Declaration of Independence--necessarily put into practice through constitutionally limited government. Such changeability by judges would spell unlimited Rule-by-Man.
10. Any judge's decision is null and void if in conflict with the Constitution in its original meaning (per paragraph 2 above)--so nullified automatically from the start by the Constitution itself due to the fact of such conflict. This applies to all judges and all courts. Any judge, acting alone or as one of a group of judges on a court, who makes such a conflicting decision thereby acts outside of the scope of his judicial authority under the Constitution--therefore outside of the Law, in violation of Rule-by-Law (basically the people's fundamental law: the Constitution). It amounts to Rule-by-Man.
11. Any judge who violates the Constitution acts as a usurper, in conflict with his oath of office. Every Federal judge is sworn to support the Constitution only (necessarily in its original and controlling meaning) so his responsibility and culpability--legally and morally--as a usurper is individual and personal in each case. Usurpation by a higher court cannot excuse violation of his oath of office and the Constitution by a lower-court judge, through his adhering to the anti-Constitution policy and decisions of the higher court and claiming their leadership as an excuse for his default as a public trustee.
12. The real chaos of Rule-by-Man, supplanting Rule-by-Law (basically the people's fundamental law, the Constitution), would inescapably result from any violation of the Constitution--in its original and controlling meaning--by judges who would misinterpret it so as to make it seem to mean something different, to suit their own wishes, changing from time to time according to their changing aims. This would apply especially to the highest judicial authority: the Supreme Court. Considered from the standpoint of the stability and security of the Republic and of the God-given rights of every Individual--entirely dependent for their security upon a stable Constitution-any such Rule-by-Man practices could not but produce judge-made chaos. For any lower-court judge to violate his oath of office (to support the Constitution only) by collaborating with higher-court judges in any such usurpation of power would amount to his helping to produce this chaos of Rule-by-Man, this judge-made chaos. (It is pertinent at this point to refer to the comment on page 175, ante, about judges not being given the Rule-by-Man type of power to construe the words of the Fourteenth Amendment, in relation to the Bill of Rights, according to their changing whims.)
13. What is sometimes referred to as "judicial chaos"--meaning the situation created by a lower-court judge's refusal to give unlimited and unquestioning submission to judges on a higher court--could apply only to a Rule-by-Man system under which highest judges would be omnipotent and fill the role of The Authority Supreme (not bound by any Constitution as the supreme law); than which nothing could be more hostile to the American philosophy and system of constitutionally limited government. The term "judicial chaos" obviously has no place, therefore, under the American philosophy and system of Rule-by-Law based upon the Constitution as the "supreme Law of the Land" with every judge sworn, as a public servant and trustee of the people, to support the Constitution only (necessarily in its original and controlling meaning). Every judge is not only not obligated to obey any usurper-judges on a higher court but is clearly obligated to defy and denounce such violators of the Constitution as defaulting trustees.
14. Any violation of oath of office by way of usurpation of power is the gravest of civic offenses. It is "treasonable usurpation upon the power and majesty of the people," as Alexander Hamilton correctly characterized any flouting of the people's fundamental law. ("Letters of Phocion," 1784: regarding violation of the New York Constitution.) Any such usurpation "is criminal and odious," as declared by President John Quincy Adams in his first annual Message to Congress (1825). Such condemnation of usurpation--either by misusing granted power, or by grasping power which has not been granted--is in keeping with The Federalist's denunciation of this most heinous offense by any public official as a defaulting public trustee, including especially any and every judge because especially charged with the particular duty of enforcing respect in practice for this basic law.
15. Just as the Constitution and its prescribed oath of office allow for no exceptions in requiring faithful support of this fundamental law by every official including every judge, so does the moral law permit no exception to its pertinent precept that the end does not justify the means--that an alleged good end can never justify resort to evil means. Usurpation by an oath-breaking judge (or by any other public official) is therefore, in effect, despite any "good intentions," anti-Constitution, anti-moral, anti-Rule-by-Law, anti-Republic, and anti-Liberty (Freedom of Man from Government-over-Man); it is utterly hostile to the security of the God-given rights of every Individual and to the principles of the Declaration of Independence. It is hostile to everything governmental for which America has stood traditionally.
To repeat, the foregoing considerations (in the numbered paragraphs)--presenting some essentials of the American constitutional system--reflect in substance the thinking of those who framed and adopted the Constitution, according to their pertinent writings (notably The Federalist) when judged on the basis of the requisite competence and intellectual integrity: free from any warping bias stemming from hostility to The Founders and their handiwork.
The foregoing points, considered together with the related portions of the text of The Federalist presented in a special section of the Appendix (pages 271-286, post), are sufficient to clarify the strictly limited authority and role of all judges--notably all the members of the Supreme Court--under the American philosophy and system of constitutionally limited government. (This is a principal subject of the present author's writings--separate and apart from this book--based upon many years of exhaustive research in this field.)
The critical importance--from the standpoint of the security of the people's liberties and of Posterity's just heritage--of the constitutional system's prohibition against the Judiciary's intruding into the field of political policy was emphasized in his Lectures in 1790-1791 by Justice James Wilson of the United States Supreme Court (who was one of The Framers) in these words:
"Nothing is more to be dreaded than maxims of law and reasons of state blended together by judicial authority. Among all the terrible instruments of arbitrary power, decisions of courts, whetted and guided and impelled by considerations of policy, cut with the keenest edge, and inflict the deepest and most deadly wounds."
The subject of limited government, under the Constitution, involves various important aspects other than those discussed up to this point; but, for present purposes, the foregoing will suffice to make clear some most important considerations, conducive to research by readers.
Before concluding this presentation of background material, there are two other topics which merit special mention because of their profound significance in relation to the traditional American philosophy--one in the religious realm and the other in the economic realm. They will be discussed briefly.
The Constitution is the "supreme Law of the Land." It is controlling as to all officials of the three Branches of the Federal government--Executive, Legislative and Judicial--with regard to all of their pronouncements, actions, decisions, agreements and legislative Acts. Each of them is sworn, by oath of office, to support the Constitution only. To be valid, any treaty must be strictly in conformity to--free from any conflict with--the Constitution. A treaty is like a Federal law in this respect.
The Constitution is supreme over laws and treaties; it expressly states (Article VI, Section 2) that: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . ." This means that any such Law (Act of Congress) which violates the Constitution is automatically made null and void to start with--nullified by the Constitution itself--and therefore cannot be a part of the "supreme Law of the Land." This is also true as to treaties.
The only reason for the special language used in Article VI regarding Treaties was to make it cover those made previously, under the Confederation (notably the Peace Treaty with Great Britain terminating the Revolutionary War), as well as future Treaties. Madison's official record of the Framing Convention's proceedings states that, upon his motion, there was inserted in the Treaty Clause the words "or which shall be made" following the words "all treaties made." Then his record states:
"This insertion was meant to obviate all doubt concerning the force of treaties pre-existing, by making the words 'all treaties made' to refer to them, as the words inserted would refer to future treaties." (In the original, the word pre-existing appears as preexisting.)
The words of Article VI: "under the Authority of the United States" were used regarding Treaties--instead of the words: "in Pursuance thereof" (referring to the Constitution) with regard to laws to be enacted thereafter by Congress--because the prior Treaties could not, of course, be said to have been entered into pursuant to the Constitution because they had been made before the Constitution was framed. The term "the United States" was intended to embrace both the new government and the one existing under the Articles of Confederation which had made the prior Treaties. The intent was that any and every agreement entered into by the new government, including new Treaties, should be pursuant--in conformity--to the Constitution because this government would possess no authority except that granted to it under this instrument. The fact that the above-mentioned, special language was used merely so as to embrace both past and future Treaties was noted, for example, in the 1825 book, A View of the Constitution of the United States of America (pages 59-60), written by William Rawle, a lawyer of Philadelphia who was prominent during President Washington's Administration and was one of his appointees to Federal office.
In the "Camillus" essays--in defense of the Jay Treaty with Great Britain--published by Hamilton and written mostly by him (some by Rufus King, one of The Framers), Hamilton stated in number 37 that the Constitution itself gives ". . . the force of law to treaties, making them equal with the acts of Congress, the supreme law of the land, . . ." This necessarily means they are valid only if not in conflict with the Constitution, as Article VI expressly provides concerning Federal laws. This limitation on these laws (Acts of Congress) is discussed by Hamilton in The Federalist, number 33, as follows:
"Hence we perceive that the clause which declares the supremacy of the laws of the union, . . . only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed." (Emphasis per original.)
This is equally applicable to treaties.
In the Virginia Ratifying Convention, Patrick Henry voiced the fears of many when he took the position that the language of the Treaty Clause was not sufficiently clear in limiting Federal power with regard to treaties. Speaking in the light of his intimate knowledge of the intent of the Framing Convention, Madison refuted this contention, stating:
"Does it follow, because this power is given to Congress, that it is absolute and unlimited? I do not conceive that power is given to the President and Senate to dismember the empire [Union], or to alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation . . . The object of treaties is the regulation of intercourse with foreign nations, and is external."
The understanding of the Virginia Convention in this connection, in keeping with Madison's statement, was even more specifically expressed by member George Nicholas as follows: "They can, by this, make no treaty which shall be repugnant to the spirit of the Constitution, or inconsistent with the delegated powers. The treaties they make must be under the authority of the United States, to be within their province." The question of the Treaty Clause being limited by the Constitution as a whole was discussed in the United States House of Representatives on April 6, 1796 concerning the Jay Treaty (with Great Britain), when the point was made by Madison and other members that the record of debates with regard to ratification in the Pennsylvania, Virginia and North Carolina Conventions in 1787-1788 had made it clear that the understanding was "that the Treaty-making power was a limited power" (limited by the Constitution as a whole).
An especially interesting piece of evidence supporting the conclusion that the Treaty Clause was intended and understood by the Framing and Ratifying Conventions not to authorize the President and Senate, by a treaty, either (a) to override the Constitution, in whole or in part, or (b) to make domestic law (as distinguished from governance of relations with foreign governments), was provided by a statement by Jefferson--presumably reflecting at the time the prevailing opinion among governmental leaders also and especially leaders in Congress--in his 1801 A Manual of Parliamentary Practice. It was written by him as Vice President, while serving as the presiding officer of the Senate. It was reprinted in many editions in the following generations, being incorporated in full in the "Manual" of the Senate and in the "Manual" of the House of Representatives (as to the part applicable to the particular body in each case). Use of his Manual to some extent continues at the present writing. In this guide, Jefferson stated with regard to the Treaty Clause and power:
[Section 52.] "Treaties are legislative acts. A treaty is a law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation . . . 2. By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of these the rights reserved to the States; for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way." (Emphasis added.)
This brief review of even a small part of the pertinent, historical evidence is sufficient to make inescapable the conclusion that the Framing and Ratifying Conventions intended the Treaty Clause to be limited by the Constitution; that in order to be valid a treaty, like any Federal law (Act of Congress), must be in strict conformity to the Constitution, as amended. The pertinent evidence supporting this proposition is so conclusive that not to accept it would mean (to use Jefferson's striking phraseology in another connection) that human reason must be surrendered as a vain and useless faculty, given to bewilder and not to guide us. The United States Supreme Court has repeatedly decided that the foregoing conclusion is correct, that the treaty-power under the Treaty Clause is limited by the Constitution as a whole; and the Court most recently confirmed this, upon full consideration, in the 1957 Reid case.
It merits repetition here, for emphasis, that--as observed earlier in this Part II--the Federal government was not intended by the Framing and Ratifying Conventions to be given under the Constitution any implied power of sovereignty, nor any power whatever other than as enumerated in this instrument. This applies, of course, to the Treaty Clause. Any pretense to the contrary violates historical truth. If such a pretense were sound, it would mean that the Federal government was meant to be a government not of definitely limited powers but, instead, of unlimited and indefinable powers; than which nothing could be more violative of the intent of the Framing and Ratifying Conventions.
(b) Executive Agreements
Executive Agreements with foreign governments made by the President alone are, at the minimum, as limited as treaties insofar as concerns the President's power to enter into them being limited by the Constitution; that is, any such agreement must be in strict conformity to the Constitution in order to be valid. The previously quoted statement by Hamilton, in The Federalist number 33, about the supremacy of the Constitution over any Federal law being implied, even if it had not been made express in the Constitution, is as applicable to Executive Agreements as it is to treaties. If they had had occasion to express themselves on the topic, The Framers and Adopters would unquestionably have stressed the strict limits under the Constitution upon any such power of the President alone, even more than with regard to treaties--as to which they required approval by the Senate. The grave danger inherent in allowing any single official, specifically the President, to have the sole power to make international agreements was discussed by Hamilton in The Federalist number 75. He stated, with regard to the power to make treaties: ". . . it would be utterly unsafe and improper to entrust that power to an elective magistrate of four years duration." After discussing in detail the weaknesses of human nature in government and the danger of excessive power to deal with foreign governments being given to one man occupying the Presidency, he continued:
"The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world to the sole disposal of a magistrate, created and circumstanced, as would be a president of the United States."
Hamilton further commented that, though it would be "imprudent to confide in him solely so important a trust," his being joined with the Senate in this regard provides reasonably adequate protection of the public interest. The danger involved was highlighted in a statement by Madison (in a letter to Jefferson, 1798) as follows:
"The management of foreign relations appears to be the most susceptible of abuse of all the trusts committed to a Government, because they can be concealed or disclosed, or disclosed in such parts and at such times as will best suit particular views . . . Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad."
This makes clear the reason why Executive Agreements, entered into with foreign governments by the President alone, are not only potentially dangerous in highest degree but undoubtedly violate the limits imposed by the Constitution upon the power of the Federal government whenever this device (an Executive Agreement) is used to bring into being any international agreement of a type which traditionally would have been considered to require a treaty to be entered into by the President with the advice and consent of the Senate. Under this principle, only Executive Agreements as to very minor matters would be exempted and permitted to the President alone. The danger involved in any one-man power to make agreements with foreign governments is all the more apparent in the light of this truth stated in Washington's Farewell Address (emphasis per original):
"Against the insidious wiles of foreign influence, (I conjure you to believe me fellow citizens) the jealousy of a free people ought to be constantly awake; since history and experience prove that foreign influence is one of the most baneful foes of Republican Government." (Here "Republican" means that of a Republic.)
For the President to resort to an Executive Agreement in order to evade the Constitution's limits on his power in international dealings constitutes usurpation of power and is as offensive from the standpoint of the American philosophy and system of constitutionally limited government as it is according to the principles of sound morality.
The foregoing discussion also makes clear the reasons why certain fallacious statements, which have sometimes been made by supposedly responsible sources, are utterly unsound. An example is the false pretense that a treaty completely and permanently binds the hands of Congress. The truth is that Congress has the power to revoke a treaty at any time, just as Congress has the power to annul one of its own enactments; because Federal laws and treaties are on a par in this respect. As the above-quoted statement by Jefferson notes, treaties are legislative acts; they are on a par with laws. Another fallacious statement is that a treaty "can override the Constitution;" which defies historical truth, as we have seen. A related and most preposterous allegation is that a treaty "can cut across the rights given the people by the constitutional Bill of Rights"--than which nothing could be further from the truth, partly for two reasons: the Constitution does not authorize any such treaty and, secondly, the people are, of course, given their rights by God and not by themselves through their own creation: the Constitution (including its Bill of Rights, or Bill of Prohibitions, Amendments). The quoted statement is farcical.
There is no limit to the madness which could be perpetrated by Federal officials in violation of the rights of their masters, the sovereign people, if there were any soundness in this monstrous doctrine--that the Treaty Clause gives these officials unlimited authority so to impose their Will, and even a system of tyrannous Government-over-Man, upon the people regardless of, indeed in defiance of, the Constitution as a whole. So to contend is to deal in nonsense.
(c) Foreign Aid
The Constitution (including its Treaty Clause) was designed to accomplish--as to limiting the powers of the Federal government--what is contemplated with regard to all governments created by the people as their instruments: primarily to make and keep secure their God-given, unalienable rights (and the supporting rights, notably the right to property) according to the Declaration of Independence. It is a violation of this fundamental law of the people for the Federal government to deprive the people of their property by taxation in order to donate to foreign governments, or peoples, the funds thus obtained, or things purchased with these funds--whether or not sanctioned ostensibly by a treaty; that is, except to the extent that this is authorized by the words "common Defence" in the Constitution's Taxing Clause: "provide for the common Defence and general Welfare of the United States." This means that any donation abroad of funds or things, military or any other kind, by the Federal government--in order to be authorized by the Constitution--must contribute substantially and directly to the "common Defence... of the United States," meaning the national defense: the actual, military, physical defense of the American homeland. Under the Constitution as amended, Congress and the President completely lack any power to act the benevolent role abroad with the American people's property--money or any other type. This is true as to all so-called "foreign aid"--whether military, economic or financial--however accomplished: by gift, or loan, or by any other device or method, and whether done openly, or by subterfuge. Individuals may, of course, give such aid out of their own property (money) as they please.
The words "general Welfare" in the Taxing Clause refer expressly to the welfare of the people "of the United States." This excludes the people of any foreign country. The fact that this provision does not give Congress a general legislative power, to provide even for the American people's general welfare in any way Congress sees fit, has been established earlier, citing as one reference The Federalist number 83 by Hamilton. The further fact that this clause grants no power, or authority, to Congress to provide for the welfare of the people of any foreign country--a self-evident truth: that is, one too obvious to need any supporting evidence--was discussed by Madison in the debates in the House of Representatives on January 10, 1794, concerning a proposal to grant funds for the relief of a group of citizens of France--refugees from the French possession, San Domingo--then being given asylum in Baltimore, Maryland, where they had recently arrived and were already being given relief locally. According to the report in a Philadelphia newspaper, Dunlap & Claypoole's American Daily Advertiser of January 14, 1794 (reporting the debate of January 10th), Madison expressed sympathy for the refugees and stated his hope that some way could be devised for their relief other than a grant of financial aid by Congress because, he stated, this would be beyond the authority of Congress under the Constitution. The newspaper's summary of his remarks is, in part:
". . . the government of the United States is a definite government, confined to specified objects--it is not like the state governments whose powers are more general. Charity is no part of the legislative duty of the [Federal] government; it would puzzle him to lay his finger on any part of the constitution which would authorise the government to interpose in this business . . . He concluded his remarks by saying, that tho' he was of opinion that the relief contemplated could not be granted in the way proposed . . ." [because in violation of the Constitution, yet a constitutional way might be found.]
His remarks as reported in another newspaper, The Philadelphia Gazette and Universal Daily Advertiser, of January 14, 1794, were used later as the basis for the official report in the Annals of Congress---due to lack of an official reporter in that period--and were to the same general effect, in part as follows:
"Mr. Madison . . . was afraid of establishing a dangerous precedent, which might hereafter be perverted to the countenance of purposes, very different from those of charity. He acknowledged, for his own part, that he could not undertake to lay his finger on that article in the Federal Constitution, which granted a right to Congress of expending, on objects of benevolence, the money of their constituents. And if once they broke the line laid down before them [in the Constitution], for the direction of their conduct, it was impossible to say, to what lengths they might go, or to what extremities this practice might be carried."
He further commented that the Congress was not like the British Parliament possessing unlimited power to tax and spend for any purpose it might please; then, according to the report, he continued: ". . . this house certainly did not possess an undefined authority correspondent with that of a British Parliament." The plight of the numerous refugees--including many women and children--was so severe, however, that intense sympathy was felt for them. One member, Nicholas, was so affected that he asserted he was willing to vote for the grant of relief, though unconstitutional, and then ask for forgiveness by his constituents for thus violating the Constitution; but the Constitution, and the oath of office to support it (faithfully and unvaryingly), permit no such usurpation of power and allow for no such transgression and forgiveness. Nor does morality, because the end does not justify the means. Note again the previously-quoted warning in Washington's Farewell Address regarding the evil of such a precedent and the fact that usurpation is the "customary weapon by which free governments are destroyed." (See page 182, ante.)
The question of constitutionality of expenditures under the Taxing Clause, for the common defense and general welfare, was discussed by the famous Justice Joseph Story--a long-time member of the United States Supreme Court (1811-1845)--in his celebrated Commentaries on the Constitution of the United States (1833), where he stated in this connection (Section 919):
"A power to lay taxes for any purposes whatsoever is a general power; a power to lay taxes for certain specified purposes is a limited power. A power to lay taxes for the common defence and general welfare of the United States is not in common sense a general power. It is limited to those objects. It cannot constitutionally transcend them. If the defence proposed by a tax be not the common defence of the United States, if the welfare be not general, but special, or local, as contradistinguished from national, it is not within the scope of the constitution. If the tax be not proposed for the common defence, or general welfare, but for other objects, wholly extraneous, (as for instance, for propagating Mahometanism among the Turks, or giving aids and subsidies to a foreign nation, to build palaces for its kings, or erect monuments to its heroes,) it would be wholly indefensible upon constitutional principles. The power, then, is, under such circumstances, necessarily a qualified power." (Emphasis added.)
The purpose of constitutionally limiting government in America is defeated to the extent that Federal officials fail to respect invariably the limits imposed upon their power by the entire Constitution--including its subordinate (not independent) Treaty Clause--construed in keeping with the original and controlling intent of those who framed and adopted the initial instrument and later each amendment. Sometime support of the Constitution is the equivalent of no support, from the standpoint of this "supreme Law of the Land" as well as of the oath of office and of sound morality.
It merits emphasis that any violation of the Constitution so as to accomplish an unauthorized purpose--for example, granting relief to such foreign refugees being sheltered within the United States, or perhaps within their own country, or by way of aid to any foreign country in any form whatever which is not directly related to the actual military defense of the American homeland, as explained previously--can never alter in the least the constitutional situation with regard to the power granted to Congress. Such an act of usurpation, or even a great number of successive acts of usurpation, can never increase the power of Congress--can never change, or impair, or destroy, the limits on its power as prescribed by the sovereign people in the Constitution. The power of Congress, as so limited, remains unchanged unless and until increased by the people only by amendment of the Constitution. Any act of usurpation produces zero increase in power; and many acts of usurpation still produce zero increase. Many times zero equals zero.
No precedent, no quantity of precedents, by way of actions of government, can alter the Constitution. As Madison remarked in 1831 (letter to N. P. Trist), there was a fallacy prevalent "in confounding a question whether precedents could expound a Constitution, with a question whether they could alter a Const." (Madison's abbreviation.) He correctly concluded, of course, that such precedents could help to expound (clarify), but not to alter, this fundamental law.
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