Eighth GradeU.S. Constitution

“…If the public safety be provided, liberty and property secured, justice administered, virtue encouraged, vice suppressed, and the true interest of the nation advanced, the ends of government are accomplished…”

“The magistracy is not instituted, nor any person placed in it for the increase of his majesty, but for the preservation of the whole people, and the defense of the liberty, life and estate of every private man…”

—Algernon Sidney, Discourses Concerning Government, 1698

Student Materials: The primary text for quarter one is First Book on Civil Government by Andrew W. Young. Students will have their own copy of this text and also will receive photocopies of primary source documents (that is, documents and other works written during the periods we are studying).

Part 1: Principles of GovernmentDeclaration of IndependenceKey Topics/Terms:

human naturenatural lawself-evident truthsequalitynatural rights (life, liberty, pursuit of happiness)Social Contract Theoryconsentlimited governmentrevolution

Readings:Declaration of Independence (basic treatment of first principles with the following documents) Quotes on human nature Cicero, On the Commonwealth Five Official Statements on Equality; Quotes on liberty James Madison, “On Property” Declaration of Rights of Virginia

Part 2: Republicanism Key Topics/Terms:

republicanismrule of lawsovereigntymajority tyrannyrepresentation (Review Statement #1 on equality)federalismseparation of powerschecks and balancesReadings:

Lincoln’s Fragment on the Constitution (Hillsdale Reader)Rule of Law (We Still Hold These Truths pp. 81-85, 91-92)Summarize main arguments for students from Federalist Papers—(Hillsdale

Reader)10 Union as a Safeguard against Domestic Faction and Insurrection

(pp. 231-37)39 Federalism—Conformity of the US Constitution to Republican

Principles (pp. 251-256) 51 Separation of Powers (pp. 287-291)Part 3: The U.S. Constitution Key Topics/Terms/Readings: * Each student will have their own copy of the Constitution to read and mark. Article 1—The Legislature—

*Teacher see Federalist 62-63 (Hillsdale Reader pp. 331-39)enumerated powers

legislative powerSenateHouse of Representatives bicameralismresponsibility

Article 2—The Executive—*Teacher see Federalist 70-71 (Hillsdale Reader pp. 345-353)

executive power presidency

Article 3—The Judiciary—* Teacher see Federalist 78 (Hillsdale Reader pp. 379-386); First 12 ¶

Federalist 84judicial powerstate & district courtsSupreme Courtjudicial review *Emphasis on law, order, and establishing justice aspect which is the

primary function of the judiciary as opposed to constitutional issues and the Supreme Court. Show students a trial or have students study a trial to understand the justice system.

Bill of RightsU.S. Constitution Amendments 1-10 *Teacher see Art. 11-30 MA Declaration

of Rights (Packet)Founders on Religious Liberty, Religion, and Morality

Sect. 14 Arts. 1 & 3 Northwest Ordinance; Excerpt from Washington’s Farewell Address; Washington’s Letter to Quakers; 1776 Fast Day Proclamation; Excerpt from Joseph Story’s Commentaries on the Constitution, Vol 3. (1833)

Thomas Jefferson, Preface to a Proposed Bill for Proportioning Crimes and PunishmentsJames McClellan, “Liberty, Order, and Justice” (an explanation of procedural rights)

Notes to Teacher: There are a few places (p. 18, 23, & 24) in which the First Book on Civil

Government textbook employs archaic language. There is value in studying these ideas, but the language may need explanation.

For more resources regarding content, see the high school American Government Reading Packet.

For a fuller explanation of the philosophy behind the American Government course and its place in the general curriculum please see the Program Guide.

Teacher Resources:The Government Class Book, Andrew W. Young (1865)The Heritage Guide to the Constitution, Heritage FoundationBarney Charter School American Government Course Syllabus and Reading PacketThe U.S. Constitution, A Reader, Hillsdale CollegeVindicating the Founders, Thomas WestWe Still Hold These Truths, Matthew SpaldingHillsdale College Online Course: Constitution 101 & 201The Founders’ Constitution Online: http://press-pubs.uchicago.edu/founders/ (Vol. I and Vol V)

Advanced Teacher Resources:The Federalist Papers, by Hamilton, Jay, and Madison (we recommend the Signet Classics edition, edited by Clinton Rossiter with a forward by Charles R. Kesler).The Least Dangerous Branch, Alexander Bickel (on the Judiciary)Unorthodox Lawmaking: New Legislative Processes in the US Congress, Barbara SinclairThe Mild Voice of Reason, Joseph Bessette (on the Legislature)The American Presidency: Origins and Development, Sidney MilkisThe Rise and Decline of American Religious Freedom, Steven D. Smith (on religious liberty and the First Amendment)

Principles of Government

America’s Founding Principles

The phrase “America’s Founding Principles” refers to a certain understanding about nature, rights, and government that was well established in the American colonies. This understanding is expressed in the Declaration of Independence and is fundamental to the frame of government outlined in United State Constitution. The following are some of America’s most essential Founding Principles:

1) Liberty Liberty, which is inseparable from virtue, is the essential idea that is America.

unalienable rights, [to] life, liberty and the pursuit of happiness. —Declaration of Independence

to secure the blessings of liberty to ourselves and our posterity —U.S. Constitution

a new nation conceived in liberty —Gettysburg Address2) Equality, Natural Rights, and the Consent of the Governed

Men are equal in so far as no man can legitimately rule over another without the latter’s consent (they are not equal in all respects/will not have equal resources). Men are also born with the right to life, liberty, and the pursuit of happiness i.e. property. Just government is government by the consent of the governed that protects man’s inalienable rights to life, liberty, and the pursuit of happiness.

3) The establishment of Religious FreedomOne of the most fundamental rights guaranteed by nature to all is the freedom of religion. The American Constitution draws a line between religious doctrine and lawmaking, but it also allows the general (nonsectarian) encouragement and support of religion in public laws and public speech.

4) Private Property and the Spirit of Enterprise Private property and free enterprise were understood not as mere possession but as an integral component of freedom, deeply intertwined with and derivative of equal rights and human liberty itself. The right to property is not simply an economic concept, it is one of the first principles of liberty and the foundation of prosperity.

5) The Rule of LawThe general concept that government as well as the governed are subject to the law and that all are to be equally protected by the law. Throughout most of human history, he who had the power made the rules. The rule of Law may

“No free government, nor the blessings of liberty, can be preserved to any people, but by…a frequent reoccurrence to fundamental principles.”

be the most significant and influential accomplishment of Western constitutional thinking.

6) Constitutionalism & the architecture of Limited GovernmentThe Constitution is not simply an organizational structure having to do with narrow legal or governmental matters, it is the arrangement that formally constitutes the American people. The design, forms, and institutions of the Founders’ Constitution defines the necessary conditions of the rule of law and limited government—hence liberty. It orders our politics, defines our nation, and protects our citizens as a free people.

7) Virtues of Self-Government The Founders understood self-government in the twofold sense of political self-government, in which we govern ourselves as a political community, and moral self-government, according to which each individual is responsible for governing himself. They believed the success of the former required a flourishing of the latter and thus, were deeply concerned with public and civic habits needed to maintain the capacity for political self-government.

Title:______________________________________Author:________________ Date:_________

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.—Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain 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.

Questions:

According to the Declaration of Independence…1. all men are created ___________ and have _________ _________.2. What are man’s natural rights and where do these rights come from?

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

3. According to the Declaration of Independence what is the purpose of government? _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Name: ___________________

America’s Founding PrinciplesThe phrase “America’s Founding Principles” refers to a certain understanding about nature, rights, and government that was well established in the American colonies. This understanding is expressed in the Declaration of Independence and is fundamental to the frame of government outlined in United State Constitution. The following are some of America’s most essential founding principles:

Human Nature

Human beings are neither gods nor beasts. As mortal creatures, they are imperfect, inherently flawed. Yet possessing reason, they are uniquely capable of self-government. An individual can achieve self-government when his reason rules his passions. A similar arrangement is true for government. Republican government depends upon institutions ruled according to reason, not passion, and thus requires its citizens to practice certain virtues. America’s Founders understood human nature to dictate limited constitutional government. Finally, the Founders understood that human nature was constant or unchanging.

  “We must take human nature as we find it. Perfection falls not to the share of mortals.”     —George Washington, “Letter to John Jay”

     “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.”     —James Madison, Federalist 51

“Human nature is the same on every side of the Atlantic, and will be alike influenced by the same causes.” —Thomas Jefferson, Notes on the State of Virginia, “Query XIII: Constitution”

“Repeal the Missouri compromise—repeal all compromises—repeal the Declaration of Independence—repeal all past history, you still cannot repeal human nature.” —Abraham Lincoln, “Speech on the Kansas-Nebraska Act”

America’s founders understood that human nature is _____________, yet capable of ________________.

Man is capable of ______________ when his ____________________________.

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What is government a reflection of? ___________________________

Human nature does NOT ______________.

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Natural Law

Natural Law is an absolute law or standard of right and wrong that exists in nature and governs all human beings, everywhere, and at all times, just as physical laws such as gravity. John Locke equates Natural Law with man’s Reason. In other words, the natural law is knowable by reason, and provides a standard by which to measure our actions. In the founding era, natural law was deeply embedded in what Thomas Jefferson called “the American mind.” When America’s Founders declared their independence from Great Britain in 1776, they appealed to the Law of Nature and Nature’s God. It was also on the basis of this law that the founders staked a claim to republican self-government, and argued that justice derives from the protection of natural rights. 

   “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”     —The Declaration of Independence

     “The great principles of right and wrong are legible to every reader: to pursue them requires not the aid of many counselors.”     —Thomas Jefferson, “A Summary View of the Rights of British America”

Describe Natural Law. To whom does it apply? __________________________________________________________________________________________________________________________________________________________________________

How do men know this law? ________________________________________________________

Self-Evident Truths

Truths that can be known at all times and in all places by human reason are called “self-evident.” Recognition of such truths requires knowledge of the definitions of their terms. Thus, although they are reflective of the natural law and cannot be logically denied by individuals exercising right reason, they are not necessarily recognized or affirmed by everyone.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness—That to secure these rights, Governments are instituted among Men, deriving their just powers from the

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consent of the governed….”     —The Declaration of Independence

     “If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions.”     —Calvin Coolidge, “The Inspiration of the Declaration”

Define “Self-evident”— __________________________________________________________________________________________________________________________________________________________________________

What truths are “self-evident” according to the Declaration of Independence?____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Equality

The first of the self-evident truths in the Declaration of Independence is that all men are created equal., Human equality means that all human beings are equal in the life and liberty they are born with, and that no individual or group of people has the right to rule others as God rules men, or as men rule beasts. Humans are unequal in a multitude of ways, but in this decisive sense—their possession of natural rights—they are equal.

For America’s Founders, human beings were obviously unequal in many ways, such as talent, ability, and virtue. But in the decisive way—in possession of natural rights—individuals are equal. No individual may be deprived justly of life, liberty, or property, unless following due process.

    “The mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.”     —Thomas Jefferson, “Letter to Roger Weightman”

     “In a state of nature men are equal, exactly on a par in regard to authority: each one is a law to himself, having the law of God, the sole rule of conduct, written on his heart.”     —Gad Hitchcock, “An Election Sermon”

In what way are men equal? In what ways are they unequal?

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____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

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Natural Rights

Individuals possess certain rights by the nature of their humanity. A natural right is a claim to what one rightfully owns by birth. Government does not grant natural rights, for they exist prior to the establishment of any government. Natural rights are unalienable; having been given by God and nature, they cannot rightfully be surrendered.

    “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 Declaration of Independence

     “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”     —Alexander Hamilton, “The Farmer Refuted”

Where do our natural rights come from? _____________________________________________________________________________________

Inalienable—__________________________________________________________________________

Can our natural rights justly be taken away? _________________________________________________

Life

Listed first among the three “unalienable rights“ specified in the Declaration of Independence, “life” is followed by “liberty“ and “the pursuit of happiness.” In order to enjoy liberty or pursue happiness, one must have life. The natural right to life implies a corresponding duty to respect the right to life of others.

“The God who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.”     —Thomas Jefferson, “A Summary View of the Rights of British America”

     “For in the state of nature, to omit the liberty he has of innocent delights, a man has two powers. The first is to do whatsoever he thinks fit for the preservation of himself and others within the permission of the law of nature.”     —John Locke, Second Treatise of Government

Study Questions:Is it consistent with the laws of nature to harm another in his person or property? Why or why not?

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Liberty

The American Revolution was fought and the Constitution created on behalf of liberty. The “blessings of liberty“ can be secured only with careful regard to the protection of man’s equal natural rights. Liberty is not license, America’s Founders were quick to emphasize, and citizens must work diligently to cultivate the virtues that uphold “civil and religious liberty.”

“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 liberties are of the gift of God?”     —Thomas Jefferson, Notes on the State of Virginia, “Query XVIII: Manners”

     “Liberty is the Basis, and whoever would dare to sap the foundation, or overturn the Structure, under whatever specious pretexts he may attempt it, will merit the bitterest execration, and the severest punishment which can be inflicted by his injured Country.”     —George Washington, “Circular Letter to the States”

Study Questions:How did America’s Founders understand the concept of liberty? ___________________________________________________________________________________________________________________________________________________________________________________________________________What is necessary in order to secure the “blessings of liberty?” _______________________________________________________________________________________________________________________According to Thomas Jefferson, what is the only firm basis of the liberties of a nation? ____________________________________________________________________________________________________

Pursuit of HappinessThe Declaration of Independence lists the right to pursue happiness, but not happiness itself, as a natural right. Unlike life and liberty, happiness is not something human beings possess by nature or that government can guarantee. Happiness requires moral action, and the natural right to pursue happiness is closely related to property rights.

“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 Declaration of Independence

     “So happiness appears to be something complete and self-sufficient, and is,

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therefore, the end of actions.”     —Aristotle, Nicomachean Ethics

Study Questions:What does the Declaration of Independence mean when is lists the “right to pursue happiness?” __________________________________________________________________________________________________________________________________________________________________________

Property

“Life, liberty, and property” was the most-often cited list of natural rights cited by America’s Founders. Property entails the usual sense of material possessions, but it also broadly encompasses the idea of man’s claim to his God-given rights. The protection of all of our rights—including the right to private property—is the only proper purpose of government.

“Now can there be any liberty, where property is taken away without consent?”     —James Otis, “Rights of the British Colonies Asserted and Proved”

“In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”     —James Madison, “On Property”

Study Questions:Explain the concept of property according to James Madison.____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Is it acceptable for a government to violate the right to property of its citizens? Why or why not?_________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Social Contract Theory

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A social contract, or compact, comes into being when an individual agrees with a whole people, and they with him, to form a government under which all will exist. The state of nature, in which natural rights exist but are unprotected, thus can be escaped, and the rule of law established. The social contract, which establishes government, requires initial consent. Representation, the electoral arrangement which enables the operation of government, provides continuing consent.

    “Shall these governments be dissolved, their property annihilated, and their people reduced to a state of nature, at the imperious breath of a body of men whom they never saw, in whom they never confided, and over whom they have no powers of punishment or removal, let their crimes against the American public be ever so great?”     —Thomas Jefferson, “A Summary View of the Rights of British America”

     “We are a nation that has a government—not the other way around. And this makes us special among the nations of the earth. Our government has no power except that granted it by the people.”     —Ronald Reagan, “First Inaugural Address”

Study Questions:According to the Social Contract Theory, how does government come into being?____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Is it acceptable for a government to violate the natural rights of citizens? Why or why not?_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Consent

Without the consent of the governed, government’s power is illegitimate. Even with it, justice is not automatic, for consent alone does not make citizens or governments moral. Consent can be justly given only when the powers exercised by government are just—when government protects the natural rights of individuals. Republicanism, or government by representation, is impossible without consent.

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”     —The Declaration of Independence

     “What I do say is, that no man is good enough to govern another man, without

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that other’s consent. I say this is the leading principle—the sheet anchor of American republicanism.”     —Abraham Lincoln, “Speech on the Kansas-Nebraska Act”

Study Questions:What are two criteria for just government?_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Limited Government

The Constitution limits the power of government to perform only those tasks necessary for the security and equal protection of the rights of its citizens.  However, a limited government is not a weak government: within its sphere of authority, it is supreme.  In this way it achieves the purpose of government—the protection of individual rights.

“In framing 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.”     —James Madison, Federalist 51

     “If the public safety be provided, liberty and propriety secured, justice administered, virtue encouraged, vice suppressed, and the true interest of the nation advanced, the ends of government are accomplished.”     —Algernon Sidney, Discourses Concerning Government

Study Questions:

What is the difference between weak and limited government? Which kind of government did the founders believe America should have?

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Revolution

The Declaration of Independence states that revolution is a right as well as a duty. If the government violates the natural rights of its citizens, and forecloses all means of redressing such grievances, it enters into a state of war with its own citizens. They thus possess the right and the duty to throw off the unjust government, and to institute a just one in its place. This is not an action to be taken

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lightly, and can only be considered legitimate if guided by the virtue of prudence, or practical reason, and by the precepts of natural law.

“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”     —Declaration of Independence

     “Whenever any Government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it.”     —George Mason, “Virginia Declaration of Rights”

Study Questions:

What is the right to Revolution? What are the two necessary conditions for the exercise of this right?

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Rule of Law

The rule of law is designed to make possible the two requirements of just government: that it be by the consent of the people, and that it secure the safety and happiness of the people by protecting their natural rights. It does this by the establishment of rules publicly agreed upon that apply equally to all citizens, to prevent the passions or private interests of the rulers from having their way. The Constitution establishes the rule of law for the United States.

“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.”     —The Constitution of the United States

     “But nothing can be more absurd than to say, that one man has an absolute power above law to govern according to his will.”     —Algernon Sidney, Discourses Concerning Government

Study Questions:

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How does the rule of law help secure the safety and happiness of the people? Notice these are also standards for good laws.

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Sovereignty

Sovereignty in America is located in the people as a whole—not in any one office, institution, or person. As citizens, not subjects, the people rule indirectly through their representatives. Majority rule does not mean the majority is always right, but it does point to the fact that the people are sovereign. Because popular passions can lead a nation astray, the task of good government is to ensure the “cool and deliberate sense of the community prevails“ (James Madison, Federalist 63). 

  “We the People of the United States… do ordain and establish this Constitution for the United States of America.”     —The Constitution of the United States

     “This idea that government was beholden to the people, that it had no other source of power except the sovereign people, is still the newest, most unique idea in all the long history of man’s relation to man.”     —Ronald Reagan, “A Time for Choosing”

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Republicanism&

the U.S. Constitution

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Name: ___________________

The American Government: Principles and Mechanics of the United States

ConstitutionRepresentation

American government operates according to representation, or indirect rule by the people. This marks a departure from democracy, or direct rule by the people. Democracy, by its very nature is most susceptible to the immediate passions and baser qualities of human nature. Representation makes it more likely that reason, rather than passion, will rule and thus, helps to mitigate those baser human qualities. Representation alone however, is no guarantor of liberty, for elected officials are as fallible as the people who elect them. Republican Government requires that elected officials and the laws equally protect the rights of the people.

“The United States shall guarantee to every State in this Union a Republican Form of Government.” —The Constitution of the United States

“The difference most relied on between the American and other republics consists in the principle of representation, which is the pivot on which the former move, and which is supposed to have been unknown to the latter, or at least to the ancient part of them.” —James Madison, Federalist 63

“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States…” —Article 1, The Constitution of the United States

“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof” [since amended] —Article 1, The Constitution of the United States

“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”

—Article 3, The Constitution of the United States

Define/answer the following:Democracy—

Representation—

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Republic—

What are the defining characteristics of a Republican Form of Government?

How does the Constitution provide for representation/Republican Government?

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Federalism

Federalism is the allocation of powers between the national government and the states. According to the Constitution, the national government’s authority is limited to certain enumerated powers; all other powers are reserved to the states. As Madison argued, federalism implies the existence of a compound republic—it does not refer exclusively to the federal government, which today is frequently synonymous with the national government. America has elements of both a national and federal government.

“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 Constitution of the United States, Amendment 10

“The proposed Constitution, therefore, even when tested by the rules laid down by its antagonists, is, in strictness, neither a national nor a federal Constitution, but a composition of both.”

—James Madison, Federalist 39

Define/describe the following:Power—

Federalism—

Compound Republic—

Is America strictly a federal government? Why or why not?

*Notice that state governments have powers. States do not have rights. People have rights.

Diagram of the principle of federalism in a Compound Republic.

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Separation of Powers

The Constitution’s Framers knew that any man entrusted with all three governmental powers would abuse them. They also knew that separating the powers of government prevents tyranny by making it difficult for any one branch to increase its power, and in turn promotes good government by allowing each branch to perform better its prescribed duties. Therefore, the Framers of the Constitution vested the executive, legislative, and judicial powers of government in three different and separate branches and established a system of checks and balances between these branches.

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”     —James Madison, Federalist 47

“the habits of thinking in a free country should inspire caution in those entrusted 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 necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them.”

—George Washington, Farewell Address, 1976

Define/describe the following:Tyranny (according to James Madison)—

Separation of Powers—

Checks and Balances—

Diagram demonstrating Federalism and the Separation of Powers:

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Enumerated Powers

American government is a limited Constitutional government. Article I, Section 8, of the Constitution lists the legislative powers of the national Congress. Such a listing limits congressional power, which is primarily directed to the provision of national defense. The Framers took the trouble to write down the duties of the national legislature because they intended the list to be limiting.

“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 Constitution of the United States, Amendment X

     “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”     —John Marshall, Marbury v. Madison

Define/describe or respond to the following:

Enumerate—

_______________ lists the legislative powers of the national Congress.Why are the powers of Congress specifically enumerated in the Constitution?According to the Tenth Amendment, any power not delegated to the national government, nor prohibited by the states are reserved are reserved to the ______________. America’s government is a _____________ government, but not a ___________ government. Practically, what does this mean?

Legislative Branch

The legislative power is the power to make laws.  Article I of the Constitution vests the legislative power in a bicameral Congress, and enumerates what Congress can and cannot do.  Because of the problem of majority tyranny that plagued the states under the Articles of Confederation, the Constitution’s Framers divided the legislative power between two co-equal bodies and established a system of checks and balances between all branches to ensure that citizens’ natural rights would not be abused easily by the Congress.

“All legislative Powers herein granted shall be vested in a Congress of the Unites States, which shall consist of a Senate and House of Representatives”

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     “The legislative cannot transfer the power of making laws to any other hands.”     —James Otis, “Rights of the British Colonies Asserted and Proved”

Define/describe or respond to the following:What is the legislative power? Where in the American system is the legislative power vested?majority tyranny—bicameral vs. unicameral—Why did the Framers divide the legislative power between two co-equal bodies?Can the legislature transfer the power of making laws to another body? Why or why not?Senate

The Constitution divides Congress into two houses, with the aim of encouraging legislation based not on popular passion but reasoned deliberation. The Senate, with its term of six years, is the more responsible and moderate body, and provides a check on the more responsive and passionate House, whose members serve a much shorter term of two years. The Constitution provides for each state to have equal representation in the Senate. 

  “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.”     —The Constitution of the United States

     “The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.”     —James Madison, Federalist 62

Define/describe or respond to the following:

Why is Congress divided into two houses? What is the term limit for the Senate? How are Senators elected under the original Constitution? Why? What kind of responsibility does the Senate have?popular passion—reasoned deliberation—responsible—moderate—

House of RepresentativesMembers elected to the House of Representatives serve a two year term of office.  The number of representatives from each state is proportional to that state’s population. Together, these factors tend to make the House by its nature more

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directly responsive to its constituents. In this way, the will of the people is represented, though still checked by the moderating influence of the Senate.

   “As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people.”     —James Madison, Federalist 52     “I will add, as a fifth circumstance, in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends,* as well as on the great mass of the society.”      —James Madison, Federalist 57

Define/describe or respond to the following:What is the term length for members of the House of Representatives? How are they elected? Why?What kind of responsibility does the House of Representatives have?proportional representation—responsive—Responsibility

According to America’s Founders, responsibility in government is more than responsiveness to the immediate wishes of the people. It means acting for the long-term interests of the citizen body, which may occasionally mean acting contrary to their temporary passions. Government is responsible for protecting natural rights of the people; it is not responsible for meeting their every need. Each branch of government, then, is responsible for its constitutional role, as well as to the people.

   “Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents.”     —James Madison, Federalist 63

     “The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.”     —Alexander Hamilton, Federalist 71

Define/describe or respond to the following:What does responsibility mean for the American founders?Are there times in which the government ought to act contrary to the immediate passions of the people?What is government ultimately responsible for?

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Executive Branch

The executive power entails the enforcement—or “execution”—of the laws. Steering a course between an executive who is too strong and disregards the rule of law, and one who is too weak and is beholden to the legislature, the Framers devised a strong, unitary executive whose principal feature is energy. Given plenary power in Article II’s vesting clause, the executive is the enforcer and administrator of the laws, prosecutor of crimes, and Commander-in-Chief of the armed forces. Unlike the legislature, which acts deliberatively, the chief executive needs to be able to act decisively and quickly. Originally allowed indefinite eligibility to four-year terms of office, the president was restricted to two terms by Amendment XXII to the Constitution.

   “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.”     —The Declaration of Independence

   “The executive Power shall be vested in a President of the United States of America.”     —The Constitution of the United States

     “Energy in the executive is a leading character in the definition of good government.”     —Alexander Hamilton, Federalist 70

“That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.”     —Alexander Hamilton, Federalist 71

Define/describe or respond to the following:Where is the executive power vested according to the U.S. Constitution?What are the primary functions of the executive branch? What kind of executive did the Framers create? Why? In what ways does the chief executive need to be able to act?How many terms is the President restricted to?

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Explanation of the Electoral College:• The Electoral College consists of _____ electors. • A majority of _____ electoral votes is required to elect the President.• Each state’s entitled allotment of electors =

___________________________________________• Presidential elections are held every _____ years in ____________. • Each candidate running for President in each state has his or her own group

of _________. The ___________ are generally chosen by the ____________________, but state laws vary on how the electors are selected and what their responsibilities are.

• When voters vote for a candidate on the ballot, they are actually voting for that candidate’s ____.

• Most states have a ____________ system that awards all electors to the presidential candidate with the most popular votes. However, _______ and ___________ each have a variation of “proportional representation.”

• The ________ meet in their ______________, where they cast their votes for President and Vice President on separate ballots. The electors’ votes are recorded on a “_________________,” which is prepared at the meeting by the electors. The _____________________ are sent to the Congress.

• Each state’s _______________ are counted in a ___________ of Congress on the 6th of January in the year following the meeting of the electors. Members of the House and Senate meet in the House chamber to conduct the official tally of electoral votes.

• The ____________, as President of the Senate, presides over the count and announces the results of the vote. The President of the Senate then declares which persons, if any, have been elected President and Vice President of the United States.

• The President-Elect takes the oath of office and is sworn in as President of the United States on _______________ in the year following the Presidential election.

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Judicial Branch

The judicial power is the power to adjudicate and review laws. Breaking from history, the Framers established a judiciary largely independent of executive and legislative interference. Considering it the weakest of the three powers, the

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Framers held that the judicial power would be weakest only if judges kept to their constitutional role and were prevented from becoming lawmakers.

   “He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.”     —The Declaration of Independence

     “The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.”     —Alexander Hamilton, Federalist 78

Define/Respond to the following: What is the judicial power? Define adjudicate.The American Founders considered the judiciary the __________ of the three branches of government.What is NOT the role of the judiciary? ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Supreme Court

The Supreme Court is vested with judicial power and possesses the power of judicial review for the purpose of protecting citizens’ natural rights.  Judicial review is the power of courts to declare the laws that are contrary to the Constitution null and void. Judicial review does not entail judicial supremacy; rather, the Constitution remains supreme over all three branches of government.

“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 Constitution of the United States

     “The interpretation of the laws is the proper and peculiar province of the courts.”     —Alexander Hamilton, Federalist 78

Define/Respond to the following: Where, according to the U.S. Constitution, is the Judicial power vested?What specific power does the Supreme Court possess and for what purpose?

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Judicial Review

Judicial review is the power of courts to declare laws that are contrary to the Constitution null and void. Judicial review does not entail judicial supremacy, for all branches of government ultimately answer to the Constitution.

“No legislative act, therefore, contrary to the Constitution, can be valid.”     —Alexander Hamilton, Federalist 78

     “Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”     —John Marshall, Marbury v. Madison

Define/respond to the following:What is judicial review? What is supreme over all three branches of government? _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

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Checks and Balances

The checks and balances built into the Constitution enable the separation of powers to exist in reality as well as on paper. Checks and balances particularly help ensure that the legislative power does not overwhelm the executive and judicial powers, the natural tendency in republican government. Bicameralism, or the division of the legislature into two houses, prevents unjust collaboration within Congress. The president possesses a qualified veto over congressional legislation, and an independent judiciary possesses the power of judicial review, which allows it to overturn unconstitutional legislation.

“Ambition must be made to counteract ambition.”—James Madison, Federalist 51

“The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”—James Madison, Federalist 51

List the ways under the Constitution in which each of the following branches of government can check the conduct of the other respective branches: (Be specific)

Congress: ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

President: ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Supreme Court: _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

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American Government’sSystem of Checks and Balances

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Bill of Rights

The first ten amendments to the Constitution, adopted in 1791, are known as the Bill of Rights. James Madison and Alexander Hamilton initially opposed the adoption of the Bill of Rights, as they feared that listing some, but not all, of our rights would imply that those rights not listed did not exist. They were also concerned that listing restrictions on the national government would suggest that the government’s power was open ended insofar as it did not infringe on the rights specifically listed in the was not a limited government, granted only specific powers. In the end, Madison became the author and champion of the Bill of Rights.

“There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights.”

—Alexander Hamilton, Federalist 84

“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.”

—George Washington, “Farewell Address”

Answer/Respond to the following: What are the Bill of Rights?Why did Madison and Hamilton originally oppose a Bill of Rights? Is it because they did not want rights protected? Who became the author and champion of the Bill of Rights? _________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

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Moral VirtueThe Founders understood human nature to be flawed. Despite their imperfection, individuals are capable of self-government—but self-government must be sustained by moral virtue. Without prudence, courage, moderation, justice, and the other virtues that keep human passions in check and orient individuals to the good, liberty will degenerate into license. 

“Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”     —The Northwest Ordinance

     “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.”     —James Madison, Federalist 55

“There is but one method of rendering a republican form of government durable, and that is by disseminating the seeds of virtue and knowledge through every part of the state by means of proper places and modes of education.”

—Benjamin Rush, Signer of the Declaration of Independence

“I think with you, that nothing is of more importance for the public weal, than to form and train up youth in wisdom and virtue. Wise and good men are in my opinion, the strength of the state; more so than riches or arms.”

—Benjamin Franklin, Letter to Samuel Johnson, August 1750

“[the] public prosperity [of free governments] and even existence very much depends upon suitably forming the minds and morals of their Citizens …It should therefore be among the first objects of those who wish well to the national prosperity … early to place the youth under the forming hand of Society that by instruction they may be moulded to the love of Virtue and good Order.”

—Abraham Baldwin, Signer of Constitution, University of Georgia Charter, 1785

Answer/Respond to the following: What is necessary to sustain good government and human happiness?According the Founders what are the means of spreading virtue throughout the nation?List some of the virtues necessary for political self-government.__________________________________________________________________________________________________________________________________________________________________________

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Religious LibertyThe right of freedom of conscience was considered inviolable by America’s Founders. Religious liberty means that government may not compel citizens to worship contrary to the dictates of their faith, so long as their religion does not run counter to the common good. The federal government is not a church, and therefore should not command obedience in doctrinal matters or set up an official religion. Nonetheless, the national and state governments should support and encourage religion, which is a necessary safeguard against tyranny.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” —First Amendment of the U.S. Constitution

“Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments or persuasion; provided he doth not disturb the public peace, or disturb others, in their religious worship.”

—New Hampshire State Constitution, 1784

“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.” —George Washington, 1796 Farewell Address”

Answer/Respond to the following: Describe the principle of religious liberty according to America’s Founders.What is the proper role of the U.S. government with regard to religion? Specifically, what should the government do with regards to religion? What can it not do?

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Select Student Reading

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Quotes on Human Nature

Informed by classical and Christian views of the human soul, America’s Founders held that human beings are fallible, yet still capable of self-government (human nature is fixed). Republican government depends upon institutions ruled according to reason, not passion, thus requiring citizens to practice certain virtues.

“We must take human nature as we find it. Perfection falls not to the share of mortals.” —George Washington, “Letter to John Jay”

“For just as man is the best of the animals when completed, when separated from law and adjudication he is the worst of all.”

—Aristotle, The Politics

     “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.”     —James Madison, Federalist 55

“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.”

—James Madison, Federalist 51

“Perfection is not to be expected in any thing that is the production of man.” —Brutus, “Essay I”

“Human nature is the same on every side of the Atlantic, and will be alike influenced by the same causes.” —Thomas Jefferson, Notes on the State of Virginia, “Query XIII: Constitution”

“As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.” —James Madison, Federalist 55

“Enlightened statesmen will not always be at the helm.” —James Madison, Federalist 10

“Repeal the Missouri compromise—repeal all compromises—repeal the Declaration of Independence—repeal all past history, you still cannot repeal human nature.”

—Abraham Lincoln, “Speech on the Kansas-Nebraska Act”

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On the CommonwealthMarcus Tullius Cicero (c. 106-43 b.c.)

Marcus Tullius Cicero was the great defender of the Roman republic and a master of oratory. The author of several books on politics, philosophy, and rhetoric, he was the first to speak of natural law as a moral or political law, and was an important influence on the Founders.

c. 54–51 b.c.…[33] True law is right reason, consonant with nature, spread through all people. It is constant and eternal; it summons to duty by its orders, it deters from crime by its prohibitions. Its orders and prohibitions to good people are never given in vain; but it does not move the wicked by these orders or prohibitions. It is wrong to pass laws obviating this law; it is not permitted to abrogate any of it; it cannot be totally repealed. We cannot be released from this law by the senate or the people, and it needs no exegete or interpreter like Sextus Aelius. There will not be one law at Rome and another at Athens, one now and another later; but all nations at all times will be bound by this one eternal and unchangeable law, and the god will be the one common master and general (so to speak) of all people. He is the author, expounder, and mover of this law; and the person who does not obey it will be in exile from himself. Insofar as he scorns his nature as a human being, by this very fact he will pay the greatest penalty, even if he escapes all the other things that are generally recognized as punishments….

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Five Official Statements on Equality1. Answer of the Council of Massachusetts to Governor Thomas Hutchinson, 1773.This document was written by James Bowdin for the Massachusetts Council (roughly equivalent to a senate). It responds to a statement of the royal governor of the province, Thomas Hutchinson. Hutchinson had argued for the absolute supremacy of the British Parliament over the American colonies. From The Briefs of the American Revolution: Constitutional Arguments between Thomas Hutchison, Governor of Massachusetts Bay, and James Bowdoin for the Council and John Adams for the House of Representatives, ed. John P. Reid (New York: New York University Press, 1981), 35.

…[p. 35] Supreme or unlimited authority can with fitness belong only to the sovereign of the universe; And that fitness is derived from the perfection of his nature. –To such authority, directed by infinite wisdom and infinite goodness, is due both active and passive obedience; Which, as it constitutes the happiness of rational creatures, should with cheerfulness and from choice be unlimitedly paid by them. –But with truth this can be said of no other authority whatever. If then from the nature and end of government, the supreme authority of every government is limited……[p. 43] It is true, that every restraint of government is a privation of natural right…But as they arise from the nature of society and government; and as government is necessary to secure other natural rights infinitely more valuable, they cannot therefore be considered as an objection…Life, Liberty, and property, and the disposal of that property with our own consent, are natural rights…The preservation of these rights is the great end of government; but is it probably they will be effectually secured by a government, which the proprietors of them have no part in the direction of, and over which they have no power or influence whatever? Hence is deducible, representation; which being necessary to preserve these invaluable rights of nature, is itself, for that reason, a natural right, coinciding with, and running into, that great law of nature, self-preservation…

2. Instructions from the Committee for the Province of Pennsylvania to the Representatives in Assembly met, 1774. Most Pennsylvania counties sent delegates to Philadelphia in July 1774 to propose a course of action in response to the radical British measures that had been imposed on Massachusetts and other colonies. These instructions were authored by John Dickinson. They were later published by the Assembly to justify its refusal to obey the British authorities. From Peter Force, ed., American Archives, Fourth Series (1833), 558. In the selection printed here, Dicksinson is quoting the philosopher Jean-Jacques Burlamaqui:

And in fact, upon considering the primitive state of man, it appears most certain, that the appellations of sovereigns and subjects, masters and slaves are unknown to nature. Nature has made us all of the same species, all equal, all free and independent of each other; and was willing that

those, on whom she has bestowed the same faculties, should have all the same rights. It is therefore beyond doubt that in this primitive state of nature, no man has of himself an original right of commanding others, or any title to sovereignty.

There is but God alone that has of himself, and in consequence of his nature and perfections, a natural, essential, and inherent right of giving laws to mankind, and of exercising an absolute right of giving laws to mankind, and of exercising an absolute sovereignty over them. This liberty and independence is therefore a right naturally belonging to man, of which it would be unjust to deprive him against his will.—id., p. 38 [Burlamaqui’s Principles of Politic Law, vol 2]

3. Constitution of Georgia, 1777. Preamble. [This language disappears in the Georgia Constitutions of 1789 and 1798.]

Whereas the conduct of the legislature of Great Britain for many years past has been so oppressive on the people of America that of late years they have plainly declared and asserted a right to raise taxes upon the people of America, and to make laws to bind them in all cases whatsoever, without their consent; which conduct, being repugnant to the common rights of mankind, hath obliged the Americans, as freemen, to oppose such oppressive measures, and to assert the rights and privileges they are entitled to by the laws of nature and reason;…And whereas it hath been recommended by the said Congress,…to adopt such government as may, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular and America in general.”

4. Constitution of Kentucky, 1792. Article XII. 1. That the general, great, and essential principles of liberty and free government may be recognized and unalterably established, we declare that all men, when they form a social compact, are equal…

5. Return of Northhampton, Massachusetts, 22 May 1780[T]he said first article declares…the natural, essential, and unalienable rights of all men. By that article all men are declared “to be born free and equal;” this is true only with respect to the right of dominion, and jurisdiction over one another. The right of enjoying that equality, freedom, and liberty, is, in the same article, declared unalienable, Very strange it would be, if others should have a right by their superior strength, to take away a right from any

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individual, which he himself could not alienate by his own consent and agreement…

Founders Constitution, Volume 1, Document 26, p. 528.

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Quotes on Liberty

America’s Founders were quick to emphasize that liberty is not license. They understood that the “blessings of liberty“ can be secured only with careful regard to the protection of man’s equal natural rights. Therefore, citizens must work diligently to cultivate the virtues that uphold “civil and religious liberty.”

Sec. 4. TO understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man...Sec 6. But though this be a state of liberty, yet it is not a state of license…

John Locke, Second Treatise of Government Ch II. Of the State of Nature.

“[O]nly a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.”

Benjamin Franklin“[T]he only foundation for a useful education in a republic is to be aid in religion. Without this there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments. Without religion, I believe that learning does real mischief to the morals and principles of mankind.”

Benjamin Rush

“The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatible things, called by the same name—liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names—liberty and tyranny.

The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails to-day among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty. Recently, as it seems, the people of Maryland have been doing something to define liberty; and thanks to them that, in what they have done, the wolf’s dictionary, has been repudiated.” Abraham Lincoln, Address at a Sanitary Fair, April 18, 1864

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On PropertyJames MadisonMadison, known as the “Father of the Constitution,” was elected from Virginia to the U.S. House of Representatives in 1788, where he served four terms. This essay, which then-Congressman Madison wrote for a New York newspaper, connects the idea of property rights as commonly understood to man’s natural rights, culminating in the right of conscience.March 29, 1792

This term in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. In the former sense, a man’s land, or merchandise, or money is called his property.In the latter sense, a man has a property in his opinions and the free communication of them.He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.He has a property very dear to him in the safety and liberty of his person.He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.Where there is an excess of liberty, the effect is the same, though from an opposite cause.Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.According to this standard of merit, the praise of affording a just securing to property, should be sparingly bestowed on a government which, however scrupulously guarding the possessions of individuals, does not protect them in the enjoyment and communication of their opinions, in which they have an equal, and in the estimation of some, a more valuable property.More sparingly should this praise be allowed to a government, where a man’s religious rights are violated by penalties, or fettered by tests, or taxed by a hierarchy. Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and unalienable right.…

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If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares, the influence will have been anticipated, that such a government is not a pattern for the United States.If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.

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Virginia Declaration of Rights 1 George Mason (1725-1792)The Virginia Declaration of Rights, drafted by George Mason as a preamble to the Virginia Constitution, is—along with the Declaration of Independence that followed a month later—the clearest statement of the social contract theory of government found in major early American documents.

June 12, 1776A 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.Section 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.Section 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.Section 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 mal-administration;—and that, whenever any Government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.Section 4. That no man, or set of men, are entitled to exclusive or separate emoluments and privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of Magistrate, Legislator, or Judge, to be hereditary.Section 5. That the Legislative and Executive powers of the State should be separate and distinct from the Judicative; and, that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, a nd the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the law shall direct.Section 6. That elections of members to serve as Representatives of the people, in Assembly, ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses without their own consent or that of their Representative so elected, nor bound by any law to which they have not, in like manner, assented, for the public good.

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Section 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.Section 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 compelled 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.Section 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.Section 10. That general warrants, whereby any 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 offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.Section 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.Section 12. That the freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.Section 13. That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense 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.Section 14. That the people have a right to uniform Government; and, therefore, that no Government separate from, or independent of, the Government of Virginia, ought to be erected or established within the limits thereof.Section 15. That no free Government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.Section 16. That Religion, or the duty which we owe to our Creator, and 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 practice Christian forbearance, love, and charity, towards each other.

1. George Mason, “Final Draft of the Virginia Declaration of Rights,” from The Papers of George Mason, 1727-1792, edited by Robert A. Rutland and published in three volumes for the Omohundro Institute of Early American History and Culture. Copyright © 1970 by the University of North Carolina Press. Used by permission of the publisher. www.uncpress.unc.edu.

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Fragment on the Constitution and the UnionAbraham Lincoln (1809-1865)

This never appeared in Lincoln’s public speeches, but it is possible that he composed it while writing his First Inaugural Address. It draws upon the King James translation of Proverbs 25:11—”A word fitly spoken is like apples of gold in pictures of silver”—to describe the relationship between the principles of the Declaration and the purpose of the Constitution.

January 1861All this is not the result of accident. It has a philosophical cause. Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of “Liberty to all”—the principle that clears the path for all—gives hope to all—and, by consequence, enterprize, and industry to all.

The expression of that principle, in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government, and consequent prosperity. No oppressed, people will fight, and endure, as our fathers did, without the promise of something better, than a mere change of masters.

The assertion of that principle, at that time, was the word, “fitly spoken” which has proved an “apple of gold” to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.

So let us act, that neither picture, or apple shall ever be blurred, or bruised or broken.

That we may so act, we must study, and understand the points of danger.

Abraham Lincoln, “Fragment on the Constitution and the Union,” January 1861, in Roy P. Basler, ed., The Collected Works of Abraham Lincoln, Vol. 4 (New Brunswick, NJ: Rutgers University Press, 1953), 168-69. Reprinted with the permission of the Abraham Lincoln Association, Springfield, IL.

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Federalist 10 James MadisonWhereas democracy entails direct rule of the people, in a republic the people rule indirectly, through their representatives. A republic can therefore encompass a greater population and geographical area. This difference is decisive in the American experiment, Publius argues, for an expansive republic is able to control the inherent danger of majority faction.November 22, 1787The Union as a Safeguard Against Domestic Faction and InsurrectionAmong the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils have, in truth, been the mortal diseases under which popular governments have everywhere perished, as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired…By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community……As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves…The latent causes of faction are thus sown in the nature of man… When a majority is included in a faction, the form of popular government,… enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. …A republic, by which I mean a government in which the scheme of representation takes place,… promises the cure for which we are seeking….The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens and greater sphere of country over which the latter may be extended.The effect of [the delegation of the government, in [a republic], to a small number of citizens elected by the rest] is, on the one hand, to refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose

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wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. …… as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to center on men who possess the most attractive merit and the most diffusive and established characters…

1. James Madison, “No. 10: The Same Subject Continued,” in Clinton Rossiter, ed., The Federalist Papers (New York: Mentor, 1999), 71-79.

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Federalist 39James MadisonThe first question that offers itself is, whether the general form and aspect of the government be strictly republican? It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the revolution; or with that honorable determination, which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the Convention therefore be found to depart from the republican character, its advocates must abandon it as no longer defensible.What then are the distinctive characters of the republican form?...[W]e may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is essential to such a government, that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is sufficient for such a government, that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. According to the Constitution of every State in the Union, some or other of the officers of government are appointed indirectly only by the people. According to most of them the chief magistrate himself is so appointed. And according to one, this mode of appointment is extended to one of the coordinate branches of the legislature. According to all the Constitutions also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior.On comparing the Constitution planned by the Convention, with the standard here fixed, we perceive at once that it is in the most rigid sense conformable to it. The House of Representatives, like that of one branch at least of all the State Legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves. The duration of the appointments is equally conformable to the republican standard, and to the model of the State Constitutions. The House of Representatives is periodically elective as in all the States: and for the period of two years as in the State of South-Carolina. The Senate is elective for the period of six years... The President is to continue in office for the period of four years…The President of the United States is impeachable at

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any time during his continuance in office. The tenure by which the Judges are to hold their places, is, as it unquestionably ought to be, that of good behavior…Hamilton, Alexander; Madison, James; and Jay, John. The Federalist. Edited by Jacob E. Cooke. Middletown, Conn.: Wesleyan University Press, 1961.

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Federalist 51James Madison

Publius argues that the Constitution will maintain separation of powers by means of its “interior structure.” The “great security” against tyranny is to give the members of each department the “necessary constitutional means” combined with the requisite “personal motives” to resist encroachments on their power. The fact “that such devices should be necessary to control the abuses of government” is a “reflection on human nature.”February 6, 1788The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different DepartmentsTo what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments as laid down in the Constitution? The only answer that can be given is that as all these exterior provisions are found to be inadequate the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places…… [T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. 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 framing 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.[Federalism]…In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the

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compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.James Madison, “No. 51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments,” in Clinton Rossiter, ed., The Federalist Papers (New York: Mentor, 1999), 317-22.

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Northwest OrdinanceU.S. Congress, 1787

This law, which Congress later codified as one of the four organic laws of the United States, shows that the early federal government shared the same political principles as the state constitutions. This Ordinance set forth the principles by which the government of the Northwest Territory would be organized. This was where the future states of Ohio, Indiana, Illinois, Michigan, and Wisconsin would be established.

Art. 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory…Art. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed. Art. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.Art. 6. There shall neither be slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted…Done by the United States, in Congress assembled, the 13th day of July, in the year of our Lord 1787, and of their sovereignty and independence the twelfth.

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To the Annual Meeting of QuakersPresident George Washington, 1789

Government being, among other purposes, instituted to protect the persons and consciences of men from oppression, it certainly is the duty of rulers, not only to abstain from it themselves, but, according to their stations, to prevent it in others.

The liberty enjoyed by the people of these states of worshipping Almighty God agreeably to their consciences, is not only among the choicest of their blessings, but also of their rights. While men perform their social duties faithfully, they do all that society or the state can with propriety demand or expect; and remain responsible only to their Maker for their religion, or modes of faith, which they may prefer or profess.

Your principles and conduct are well known to me; and it is doing the people called Quakers no more than justice to say, that (except their declining to share with others the burden of the common defense) there is no denomination among us, who are more exemplary and useful citizens.

I assure you very explicitly, that in my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit.

Farewell AddressPresident George Washington, 1796“Of all the dispositions and habits which lead to political prosperity, 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 principle.

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 to it can look with indifference upon attempts to shake the foundation of the fabric?

Promote then, as an object of primary importance, institutions for the general diffusion of knowledge [i.e. schools]. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.”

Commentary on the First AmendmentJoseph Story, Commentaries on the Constitution, Volume 3 (1833)

§ 1868. Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.

§ 1869. It yet remains a problem to be solved in human affairs, whether any free government can be permanent, where the public worship of God, and the support of religion, constitute no part of the policy or duty of the state in any assignable shape. The future experience of Christendom, and chiefly of the American states, must settle this problem, as yet new in the history of the world, abundant, as it has been, in experiments in the theory of government.

§ 1870. But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires. It has been truly said, that “religion, or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence.” Mr. Locke himself, who did not doubt the right of government to interfere in matters of religion, and especially to encourage Christianity, at the same time has expressed his opinion of the right of private judgment, and liberty of conscience, in a manner becoming his character, as a sincere friend of civil and religious liberty. “No man, or society of men,” says he, “have any authority to impose their opinions or interpretations on any other, the meanest Christian; since, in matters of religion, every man must know, and believe, and give an account for himself.” The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority, without a criminal disobedience of the precepts of natural, as well as of revealed religion.

§ 1871. The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. The history of the parent country had afforded the most solemn warnings and melancholy instructions on this head; and even New England, the land of the persecuted puritans, as well as other colonies,

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where the Church of England had maintained its superiority, would furnish out a chapter, as full of the darkest bigotry and intolerance, as any, which could be found to disgrace the pages of foreign annals. Apostacy, heresy, and nonconformity had been standard crimes for public appeals, to kindle the flames of persecution, and apologize for the most atrocious triumphs over innocence and virtue.

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Liberty, Order, and Justice James McClellan

The Fourth Amendment: Search and Seizure

This is a requirement for search warrants when the public authority decides to search individuals or their houses, or to seize their property in connection with some legal action or investigation. In general, any search without a warrant is unreasonable. Under certain conditions, however, no warrant is necessary—as when the search is incidental to a lawful arrest.

Before engaging in a search, the police must appear before a magistrate and, under oath, prove that they have good cause to believe that a search should be made. The warrant must specify the place to be searched and the property to be seized. This requirement is an American version of the old English principle that “Every man’s house is his castle.” In recent decades, courts have extended the protections of this amendment to require warrants for the search and seizure of intangible property, such as conversations recorded through electronic eavesdropping.

The Fifth Amendment: Rights of Persons

Here we have a complex of old rights at law that were intended to protect people from arbitrary treatment by the possessors of power, especially in actions at law. The common law assumes that a person is innocent until he is proven guilty. This amendment reasserts the ancient requirement that if a person is to be tried for a major crime, he must first be indicted by a grand jury. In addition, no person may be tried twice for the same offense. Also, an individual cannot be compelled in criminal cases to testify against himself, “nor be deprived of life, liberty, or property, without due process of law”; and the public authorities may not take private property without just compensation to the owner.

The immunity against being compelled to be a witness against one’s self is often invoked in ordinary criminal trials and in trials for subversion or espionage. This right, like others in the Bill of Rights, is not absolute. A person who “takes the Fifth”—that is, refuses to answer questions in a court because his answers might incriminate him—thereby raises “a legitimate presumption” in the court that he has done something for which he might be punished by the law. If offered immunity from prosecution in return for giving testimony, either he must comply or else expect to be jailed, and kept in jail, for contempt of court. And, under certain circumstances, a judge or investigatory body such as a committee of Congress may refuse to accept a witness’s contention that he would place himself in danger of criminal prosecution were he to answer any questions.

The Fifth Amendment’s due process requirement was originally a procedural right that referred to methods of law enforcement. If a person was to be deprived of his

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life, liberty or property, such a deprivation had to conform to the common law standards of “due process.” The Amendment required a procedure, as Daniel Webster once put it, that “hears before it condemns, proceeds upon inquiries, and renders judgment only after a trial” in which the basic principles of justice have been observed.

The prohibition against taking private property for public use without just compensation is a restriction on the Federal government’s power of eminent domain. Federal courts have adopted a rule of interpretation that the “taking” must be “direct” and that private property owners are not entitled to compensation for indirect loss incidental to the exercise of governmental powers. Thus the courts have frequently held that rent-control measures, limiting the amount of rent which may be charged, are not a “taking,” even though such measures may decrease the value of the property or deprive the owners of rental income. As a general rule, Federal courts have not since 1937 extended the same degree of protection to property rights as they have to other civil rights.

The Sixth Amendment: Rights of the Accused

Here again the Bill of Rights reaffirms venerable protections for persons accused of crimes. The Amendment guarantees jury trial in criminal cases; the right of the accused “to be informed of the nature and cause of the accusation”; also the rights to confront witnesses, to obtain witnesses through the arm of the law, and to have lawyers’ help.

These are customs and privileges at law derived from long usage in Britain and America. The recent enlargement of these rights by Federal courts has caused much controversy. The right of assistance of counsel, for example, has been extended backward from the time of trial to the time the defendant is first questioned as a suspect, and forward to the appeals stage of the process. Under the so-called “Miranda” rule, police must read to a suspect his “Miranda” rights before interrogation. Only if a suspect waives his rights may any statement or confession obtained be used against him in a trial. Otherwise the suspect is said to have been denied “assistance of counsel.”

The Sixth Amendment also specifies that criminal trials must be “speedy.” Because of the great backload of cases in our courts, this requirement is sometimes loosely applied today. Yet, as one jurist has put the matter, “Justice delayed is justice denied.”

The Seventh Amendment: Trial by Jury in Civil Cases

This guarantee of jury trial in civil suits at common law “where the value in controversy shall exceed twenty dollars” (a much bigger sum of money in 1789 than now) was included in the Bill of Rights chiefly because several of the States’ ratifying conventions had recommended it. It applies only to Federal cases, of

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course, and it may be waived. The primary purpose of the Amendment was to preserve the historic line separating the jury, which decides the facts, from the judge, who applies the law. It applies only to suits at common law, meaning “rights and remedies peculiarly legal in their nature.” It does not apply to cases in equity or admiralty law, where juries are not used. In recent years, increasingly large monetary awards to plaintiffs by juries in civil cases have brought the jury system somewhat into disrepute.

The Eighth Amendment: Bail and Cruel and Unusual Punishments

How much bail, fixed by a court as a requirement to assure that a defendant will appear in court at the assigned time, is “excessive”? What punishments are “cruel and unusual”? The monetary sums for bail have changed greatly over two centuries, and criminal punishments have grown less severe. Courts have applied the terms of this amendment differently over the years.

Courts are not required to release an accused person merely because he can supply bail bonds. The court may keep him imprisoned, for example, if the court fears that the accused person would become a danger to the community if released, or would flee the jurisdiction of the court. In such matters, much depends on the nature of the offense, the reputation of the alleged offender, and his ability to pay. Bail of a larger amount than is usually set for a particular crime must be justified by evidence.

As for cruel and unusual punishments, public whipping was not regarded as cruel and unusual in 1789, but it is probably so regarded today. In recent years, the Supreme Court has found that capital punishment is not forbidden by the Eighth Amendment, although the enforcement of capital punishment must be carried out so as not to permit jury discretion or to discriminate against any class of persons. Punishment may be declared cruel and unusual if it is out of all proportion to the offense.

Accessed from http://oll.libertyfund.org/title/679/68462 on 2012-12-13.

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Appendix

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Article I WorksheetName(s)______________________________________________ Date___________ARTICLE I: The ___________________________________ BranchIntroduction1. What is the main focus of Article I?

2. In one sentence, summarize the main function of the legislative branch.

3. Using a dictionary, define bicameral and republic.

4. What are the two lawmaking chambers of our legislative branch?

5. Which chamber is the upper house? Lower house?

6. The two houses together are called _____________________________.

Qualification/Leadership/TermSenate House of Representatives

1. Minimum age requirement:2. Citizenship requirements:3. Term of office (length in office):4. Number of members:5. Head of chamber:

Congressional Duties/ Responsibilities/ PowersCongress has the power to …1. Collect__________________________________.2. ___________________________ money on the credit of the United States.3. Regulate _______________________________ with other nations.4. Coin_____________________________ and punish _______________________________.5. Declare_____________________________ and raise a military.

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Article II WorksheetName(s)______________________________________________ Date___________

ARTICLE II: The ___________________________________ Branch1. What is the main focus of Article II?

2. In one sentence, summarize the main function of the executive branch.

3. Who is the head of the executive branch?

4. Who is second in command?

5. Using a dictionary, define executive. What is executive power?

6. How does a president get his/her job?

Qualification/Terms1. Minimum Age Requirement:

2. Citizenship Requirements:

3. Residency Requirements:

4. Term of Office:

Duties/Responsibilities/Powers

1. What role does the president have with the military?

2. What role does the president have with executive departments?

3. What can he/she do in order to hold such departments accountable?

4. What are the executive department heads, or chief presidential advisors, called?

5. What are the agreements that the president can make with foreign nations called?

6. Who can the president nominate or appoint?

7. What is the State of the Union address and why is it an important presidential responsibility?

8. What does the president recommend in a State of the Union address?

9. The president must ________________________ all laws.

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Article III Worksheet

Name______________________________________________ Date___________

ARTICLE III: The ___________________________________ Branch

Introduction

1. What is the main focus of Article III?

2. In one sentence, summarize the main function of the judicial branch.

3. In Article III, who was given the power to make decisions in legal cases?

4. Who establishes lower courts as they are needed?

Qualifications/Term for Supreme Court Justices

1. Minimum Age Requirement:

2. Citizenship Requirements:

3. Residency Requirements:

4. Term of Office:

Duties/Responsibilities/Powers

1. Supreme Court justices must ________________________________ laws.

2. The Supreme Court is mostly an ___________________________________ court that hears appeals and reviews cases.

3. In all cases affecting ambassadors, other public ministers and consuls and other states, the U.S. Supreme Court has___________________________________ jurisdiction.

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