BASIC READINGS IN U.S. DEMOCRACY
TABLE OF CONTENTS
PREFACE
PART I: THE DECLARATION OF INDEPENDENCE (1776)
1. The Declaration of Independence
PART II: CREATING A GOVERNMENT
2. The Mayflower Compact (1620)
3. Fundamental Orders of Connecticut (1639)
4. Albany Plain of Union (1754)
5. The Northwest Ordinance (1787)
6. Constitution of the United States (1787)
7. James Madison, The Federalist No. 10 (1787)
8. The Judiciary Act of 1789
9. Marbury v. Madison (1803)
10. McCulloch v. Maryland (1819)
PART III: THE GROWTH OF AMERICAN SOCIETY
o
o
o
o
o
o
o
Thomas Jefferson, First Inaugural (1801)
Black Hawk, Surrender Speech (1832)
Alexis de Tocqueville, Democracy in America (1835)
Ralph Waldo Emerson, Self-Reliance (1841)
Dorothea Dix, Memorial to the Massachusetts Legislature (1843)
Horace Mann, Report No. 12 of the Massachusetts School Board
(1848)
Seneca Falls Declaration (1848)
PART IV: THE CRISIS OF THE UNION
18. American Anti-Slavery Society, Declaration of Sentiments (1833)
19. Henry David Thoreau, Civil Disobedience (1846)
20. Massachusetts Personal Liberty Act (1855)
21. Dred Scott v. Sandford (1857)
22. Abraham Lincoln, "A House Divided" (1858)
23. Sullivan Ballou, Letter to His Wife (1861)
24. Abraham Lincoln, Emancipation Proclamation (1863)
25. Abraham Lincoln, Gettysburg Address (1863)
26. Ex parte Milligan (1866)
PART V: INDUSTRIAL AMERICA
27. Morrill Act (1862)
28. Pendleton Act (1883)
29. People's Party Platform (1896)
30. Muller v. Oregon (1908)
31. Theodore Roosevelt, The New Nationalism (1910)
32. Woodrow Wilson, First Inaugural (1913)
PART VI: ON THE ROAD FROM SLAVERY TO FREEDOM
33. Plessy v. Ferguson (1896)
34. Harlan Fiske Stone, Carolene Products Footnote (1938)
35. Harry S. Truman, Executive 9981 (1948)
36. Brown v. Board of Education (1954)
37. Cooper v. Aaron (1958)
38. Martin Luther King Jr., "I Have a Dream" (1963)
39. Civil Rights Act (1964)
40. Lyndon B. Johnson, "The American Promise" (1965)
41. Regents of the University of California v. Bakke (1978)
PART VII: FREEDOM OF EXPRESSION
42. Virginia Statute for Religious Freedom (1786)
43. Abrams v, United States (1919)
44. Whitney v. California (1927)
45. Near v. Minnesota (1931)
46. West Virginia Board of Education v. Barnette (1943)
47. Engel v. Vitale (1962)
48. New York Times Co. v. United States (1971)
PART VIII: FACING THE WORLD
49. George Washington, Farewell Address (1796)
50. The Monroe Doctrine (1823)
51. Woodrow Wilson, Fourteen Points Speech (1918)
52. Franklin D. Roosevelt, Address at Charlottesville (1940)
53. The Atlantic Charter (1941)
54. Foreign Aid and Human Rights (1976)
55. Jimmy Carter, Human Rights and Foreign Policy (1977)
56. Sanctions Against South Africa (1986)
PART IX: COLD WAR ISSUES
57. The Marshall Plan (1947)
58. Recall of Gen. Douglas MacArthur (1951)
59. Youngstown Sheet & Tube Co. v. Sawyer (1952)
60. Censure of Senator Joseph McCarthy (1954)
61. Democracy and Foreign Policy (1990)
PART X: A MORE INCLUSIVE AMERICA
62. Bradwell v. Illinois (1873)
63. Emma Lazarus, "The New Colossus" (1883)
64. Yick Wo v. Hopkins (1886)
65. Korematsu v. United States (1944)
66. John F. Kennedy, Address to Southern Baptist Leaders (1960)
67. Gideon v. Wainwright (1963)
68. Reynolds v. Sims (1964)
69. NOW Statement of Purpose (1966)
70. Clyde Warrior, "We Are Not Free" (1967)
71. Maya Angelou, "On the Pulse of Morning" (1993)
PART XI: CONTINUING VITALITY
72. United States v. Nixon (1974)
73. Excerpts from Presidential Debates (1992)
PERMISSIONS ACKNOWLEDGMENTS
Maya Angelou. "On the Pulse of the Morning" from the book On the Pulse of the
Morning by Maya Angelou. Copyright (c) 1993 by Maya Angelou. Reprinted by
permission of Random House, Inc.
Martin Luther King Jr. "I Have a Dream" reprinted by arrangement with The
Heirs to the Estate of Martin Luther King Jr., c/o Joan Daves Agency as agent for
the proprietor. Copyright (c) 1963 by the Estate of Martin Luther King Jr.
Copyright renewed 1991 by Coretta Scott King.
Clyde Warrior. "We Are Not Free" by Clyde Warrior reprinted from Red Power,
The American Indians' Fight for Freedom by Alvin M. Josephy Jr. Copyright (c)
1971 by Alvin M. Josephy Jr. Permission granted by Julian Bach Literary Agency.
PREFACE
Democracy in its most basic meaning refers to people ruling themselves. The forms
democracy may take are varied, and run from simple, direct town meetings of a few
dozen people to elaborate schemes of popular representation for millions. A democracy
may take the form of a republic or of a limited monarchy, and the ways in which the
people's voices are heard and their will carried out are numerous.
For Americans, democracy is not only government, as Abraham Lincoln put it, "of the
people, by the people, and for the people," but it also involves limits on majoritarian rule.
Because the Unites States was founded by settlers coming from other nations, because
these men and women had different political, social, religious and economic beliefs, the
country, in order to become a nation, did something no other society had ever done -- it
recognized pluralism not as a curse but as a blessing, and set up elaborate safeguards to
ensure that the majority did not become a tyrant by force of numbers. This is the ideal,
that out of many will emerge one, and that the ideal has not always been met. Instead of
being tolerant, Americans have at times been hostile to people who had differently
colored skins, different religious beliefs and different cultural backgrounds. But to see
only the good, or only the evil, is to see only part of the portrait. It is to miss the essential
idea of American democracy, that of many peoples seeking to find common ground.
This book consists of documents, or readings, relating to that search, and the notion of
what constitutes a "document" is broadly interpreted. There are a number of traditional
documents -- court decisions, legislative acts and presidential decrees -- and these are
important. Documents such as the Declaration of Independence and Constitution are the
bedrock of American political democracy.
But there are also letters, essays, surrender speeches and even poems. These are also
"documents," in that they chart America's search for itself, a process that has continued
for almost four centuries. It is a search that has had its moments of despair, its dark sides,
acts that Americans remember with shame. But is has also appealed to the nation's higher
ideals. If one is saddened by the way America has at times treated its minorities, one can
also rejoice in the nation's efforts, even if not always successful, at redressing those ills.
To look at American democracy then, is to look at a country in process, in a search, and
that is a process that many believe can never stop. Democracy is not so much the end, but
the way a nation and a people seek that end.
In 1778, the French statesman Turgot wrote:
This people is the hope of the human race. It may become the model. It ought to show the
world by facts that men can be free and yet peaceful, and may dispense with the chains in
which tyrants and knaves of every color have presumed to bind them, under pretext of the
public good. The Americans should be an example of political, religious, commercial and
industrial liberty. The asylum they offer to the oppressed of every nation, the avenue of
escape they open, will compel governments to be just and enlightened; and the rest of the
world in due time will see through the empty illusions in which policy is conceived. But
to obtain these ends for us, America must secure them to herself; and must not become,
as so many of your ministerial writers have predicted, a mass of divided powers,
contending for territory and trade, cementing the slavery of peoples by their own blood.
Had Turgot lived long enough, he would have marveled at both the successes and the
failures of the American people. Yet both the failures and the successes are part of the
democratic story, a story told by these readings.
Melvin I. Urofsky Professor of Constitutional History Virginia Commonwealth
University Richmond, Virginia
Part I: The Declaration of Independence (1776)
No document in American history can compare with the Declaration of Independence in
the place that it holds in the minds and hearts of American citizens. It is not only critical
to any exploration of the growth of democracy in the United States, it is in many ways the
root document of that democracy. We begin here, for the Declaration sheds its light both
backward, to illuminate the development of democratic ideas and institutions in the New
World, and forward, to indicate the ways in which the United States has lived up to the
promise of the Declaration as well as those areas in which the ideas have taken longer to
mature.
It is important to understand that the Declaration of Independence is far more than an
announcement that thirteen English colonies perched on the eastern seaboard of North
America considered themselves freed of allegiance to Great Britain and to its King,
George III. In it we can find the key ideas about how the Americans of that generation
thought a free people should live, what form their government should take, and what the
mutual responsibilities were between a government and its citizens in order that both
order and liberty could be sustained.
In 1763, when the great war between France and Great Britain for the control of the
North American empire ended, if one walked down the street of any colonial town or
village, or stopped along a rural road at a farm, and asked the residents what they
considered themselves to be, they would not have answered, "We are Americans."
Instead, they would have proudly declared themselves His Majesty's loyal subjects living
in the colonies. They saw themselves as sharing with their cousins in the Mother Country
a common language, common culture and traditions and, above all, a common body of
legal rights and privileges.
The French and Indian Wars, which eliminated France as a power in the New World and
greatly increased the security of the British colonies, also left His Majesty's Government
with an enormous debt. In looking at their prosperous colonies across the ocean, English
officials decided that, at the least, the colonists ought to pay the cost of their own
government and security. As Great Britain attempted to strengthen its control over the
commerce and government of the colonies in the 1760s in order to raise revenue, one
writer after another protested that such measures violated the colonists' rights as
Englishmen.
In fact, the very distance of the colonies from the Mother Country had already altered
those rights, as well as the perceptions of the colonists regarding rights of the individual
in general. The frontier society of the American colonies had fostered a greater sense of
individual autonomy, a sense that government should not interfere in the daily lives of its
citizens, and that the purpose of government is to secure and protect the liberty and
property of its citizens. The seeds of these ideas clearly could be found in English thought,
but British government and law in the eighteenth century were slowly changing to give
the King, and especially Parliament, greater authority. Law, according to Sir William
Blackstone, was the command of the sovereign.
Americans, however, rejected the ideas of strong governments and authoritarian
sovereigns, claiming that they went against British traditions of rights. The pamphlets
that began to appear in the colonies in the early 1760s attacked the growing power of
Parliament and warned that such increased authority would undermine their individual
liberties. As England tried to tighten its imperial controls, it found a strong vein of
resistance in the colonies. Efforts to impose taxes were met by protests, boycotts and
petitions, and for the most part the Crown's efforts proved futile. In the early 1770s royal
government in the colonies disintegrated, so that by 1775 the real ruling powers in the
colonies were the locally elected legislatures. These assemblies had relatively clear
notions about what government ought and ought not to do, and to a large extent
Americans in all the colonies shared these views. The enduring importance of the
Declaration of Independence derives in part from its authors' ability to capture and
articulate those sentiments.
After its petitions failed to secure redress, the Second Continental Congress voted to
declare independence from England, and named John Adams, Benjamin Franklin and
Thomas Jefferson to draft a declaration. All three men were familiar with English
tradition, and each had thought at length about the problems of government. But of the
three, Jefferson was acknowledged to possess the most facile pen, and his words caught
the hopes and ideals of the American experiment.
The Declaration of Independence, John Adams later said, had not a single new idea in it.
Certainly one can see the influence of John Locke and other English writers in it. But one
can also see the notions of government that had been intensely discussed in the colonies
in hundreds of pamphlets in the previous fifteen years. The Declaration is clearly part of
this pamphlet tradition. It is in fact a pamphlet, a propaganda document designed to
justify a radical, unprecedented and unlawful action by placing the blame on a wicked
king and Parliament. The colonists, the authors claimed, had done no more than protect
their God-given rights.
It would be a mistake, however, to dismiss the Declaration as just a propaganda
document, for it is far more than that. It is the culmination of more than a century and a
half of colonial life, during which the settlers in North America developed their unique
notions of government, a process in which they gradually stopped being Englishmen and
became Americans.
The long list of grievances Jefferson marshalled to support his charge that the king had
violated his obligations to the people is hardly convincing to a modern reader, and like all
good propagandists, Jefferson distorted history to serve his purposes. But if one reads the
grievances carefully, they contain notions that are basic to American democracy:
government is a compact among the people, and can be overthrown when it fails to fulfill
its obligations; government exists to protect the rights and property of its citizens; every
person accused of a crime is entitled to trial by a jury of peers; the state cannot search the
homes of its citizens without a warrant; and taxes cannot be levied without the consent of
the people.
From a constitutional point of view, the Declaration served several purposes. It enshrined
the compact theory as the heart of the American philosophy of government, not only for
the revolutionary generation but for succeeding ones as well. Long after the particular
grievances against George III have been forgotten, the belief that government exists to
preserve the rights of the people, and can be dissolved if it fails to do so, remains a prime
article of faith for Americans.
But even though the Declaration built upon generations of American and British
experience, it went far beyond those ideas, and, in fact, as many modern writers have
noted, it is a radical statement in its view of the purposes of government. As nation-states
began emerging in Europe in the late middle ages, the common assumption had been that
governments existed to ensure order and protect the stability of society. But the
Declaration of Independence, while not denying the need for order, asserts that the prime
purpose of government is to protect the rights of the individual. For the first time, it is the
individual and not the society that is paramount, and the success of government is to be
measured not by how well society is regulated, but by how free the individual is from
government.
Jefferson's noble statement of the rights of mankind thus became a beacon for future
generations, not only in the United States but throughout the world. One need not ignore
the fact that Jefferson had to temporize, for American society in the eighteenth century
did not treat all people equally. Native Americans, people without property, women and
especially black slaves were considered neither equal nor endowed with rights. But the
statement became the goal, the ideal, and it would be the standard against which future
American society would be -- and still is -- judged.
The development of American democracy has been, in many ways, an elucidation of the
premises outlined in the Declaration of Independence: that certain truths are self-evident,
that people are created equal, that they are endowed with inalienable rights, that
governments derive their power from the consent of the governed and that the purpose of
government is to protect these rights. Such sentiments have not lost their power to inspire
men and women to this day. They are the mark of the successes of American democracy,
as well as of its failures.
For further reading: Influential works on the Revolutionary period, and the role of the
Declaration of Independence, include Bernard Bailyn, The Ideological Origins of the
American Revolution (1967); Gordon Wood, The Creation of the American Republic,
1776-1787 (1969); and Wood's recent book, The Radicalism of the American Revolution
(1992). On the continuing influence of the document, see Garry Wills, Inventing America:
Jefferson's Declaration of Independence (1978). The importance of the Declaration to
governmental development is explored in Martin Diamond, "The Declaration and the
Constitution: Liberty, Democracy, and the Founders," Public Interest 41 (1975): 39.
The Declaration of Independence (1776)
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 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 shown, that mankind are more disposed to suffer, while
evils are sufferable, than to right themselves by abolishing the forms to which they are
accustomed. But when a long train of abuses and usurpations, pursuing invariably the
same Object evinces a design to reduce them under absolute Despotism, it is their right, it
is their duty, to throw off such Government, and to provide new Guards for their future
security. -- Such has been the patient sufferance of these Colonies; and such is now the
necessity which constrains them to alter their former Systems of Government. The
history of the present King of Great Britain is a history of repeated injuries and
usurpations, all having in direct object the establishment of an absolute Tyranny over
these States. To prove this, let Facts be submitted to a candid world. He has refused his
Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance,
unless suspended in their operation till his Assent should be obtained; and when so
suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people,
unless those people would relinquish the right of Representation in the Legislature, a
right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable and distant
from the depository of their public Records, for the sole purpose of fatiguing them into
compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness
his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected;
whereby the Legislative powers, incapable of Annihilation, have returned to the People at
large for their exercise; the State remaining in the mean time exposed to all dangers of
invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose
obstructing the Laws of Naturalization of Foreigners; refusing to pass others to encourage
their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for
establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the
amount and payment of their salaries. He has erected a multitude of New Offices, and
sent hither swarms of Officers to harass our People, and eat out their substance. He has
kept among us, in times of peace, Standing Armies without the Consent of our legislature.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution,
and unacknowledged by our laws; giving his Assent to their Acts of pretended
Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from Punishment for any Murders which they
should commit on the Inhabitants of these States: For cutting off our Trade with all parts
of the world:
For imposing taxes on us without our Consent:
For depriving us of many cases, of the benefits of Trial by Jury: For transporting us
beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing
therein an Arbitrary government, and enlarging its Boundaries so as to render it at once
an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering
fundamentally the Forms of our Governments: For suspending our own Legislatures, and
declaring themselves invested with Power to legislate for us in all cases whatsoever. He
has abdicated Government here, by declaring us out of his Protection and waging War
against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives
of our people.
He is at this time transporting large armies of foreign mercenaries to compleat the works
of death, desolation, and tyranny, already begun with circumstances of Cruelty & perfidy
scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a
civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms
against their Country, to become the executioners of their friends and Brethren, or to fall
themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the
inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is
an undistinguished destruction of all ages, sexes, and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble
terms: Our repeated Petitions have been answered only by repeated injury. A Prince,
whose character is thus marked by every act which may define a Tyrant, is unfit to be the
ruler of a free people.
Nor have We been wanting in attention to our British brethren. We have warned them
from time to time of attempts by their legislature to extend an unwarrantable jurisdiction
over us. We have reminded them of the circumstances of our emigration and settlement
here. We have appealed to their native justice and magnanimity, and we have conjured
them by the ties of our common kindred to disavow these usurpations, which, would
inevitably interrupt our connections and correspondence. They too must have been deaf
to the voice of justice and of consanguinity. We must, therefore, acquiesce in the
necessity, which denounces our Separation, and hold them, as we hold the rest of
mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the United States of America, in General Congress,
Assembled, appealing to the Supreme Judge of the world for the rectitude of our
intentions, do, in the Name, and by Authority of the good People of these Colonies,
solemnly publish and declare, That these United Colonies are, and of Right ought to be
free and independent states; that they are Absolved from all Allegiance to the British
Crown, and that all political connection between them and the State of Great Britain, is
and ought to be totally dissolved; and that as Free and Independent States, they have full
Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do
all other Acts and Things which Independent States may of right do. And for the support
of this Declaration, with a firm reliance on the Protection of Divine Providence, we
mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.
Source: F. N. Thorpe, ed., Federal and State Constitutions, vol. 1 (1909), 3.
Part II: Creating a Government
While the form of government adopted by the United States drew heavily on European
sources, it was nonetheless distinctly American. The colonists, of course, brought English
ideas with them when they crossed the Atlantic, but once here these ideas were slowly
but definitely modified to reflect conditions in the New World.
The settlers, like their kin who stayed in England, believed that British government and
the common law constituted the greatest protections of individual liberties that had ever
existed. Magna Carta (1215) had laid down the great root principle of constitutional
democracy, that a fundamental law exists beyond which no one, not even the king, may
trespass. The rule of law, as it had developed in the centuries between Magna Carta and
the first English settlement at Jamestown, came to encompass a parliament and a court
system -- the first to represent the interests of the people to their rulers, and the second to
provide impartial administration of justice. Although the executive power and the
symbols of majesty remained with the monarch, the parliament gradually won an
important share of power through its control of taxes and the purse. The judicial system
achieved its authority by mastery of the intricacies of the law.
The British system, both in theory and in practice, relied on the existence of an upper
class, an aristocracy which had the wealth, leisure and education to devote to the
problems of governing. In their studies of government, English writers posited a society
of distinct classes and interests, all of which would be balanced so that no one part could
dominate the others. It was in parliament that the various groups in society would be
represented, look after their own interests, advance the greater interest of the realm and,
above all, jealously guard the rights and properties of the people.
It is not surprising that the colonists tried to emulate these institutions when they created
their own governments. Moreover, they took with them some powerful ideas then
beginning to circulate in the Mother Country, such as the notion that the Puritans had
developed of a compact or covenant. In the New England colonies especially, the
covenant theory became an essential part of political as well as religious thought,
expressing the idea that people covenanted with one another to form a government that
they were bound to obey, provided it did not exceed the authority granted to it.
In the 169 years between the landing at Jamestown and the signing of the Declaration of
Independence, the colonial experience diverged significantly from its English roots. Here
there was no established aristocracy; no leisure class could devote itself to government.
The settlers looked to those of their neighbors who had talents and abilities for leadership,
with the result that the Americans came to see government less as the preserve of the
upper classes than as an instrument for all the people.1 Because colonial society was so
fluid, the notion of a parliament representing fixed interests made little sense; moreover,
the towns and rural areas that sent representatives to their colonial legislatures gave them
directions, often instructing them on how to vote on particular issues. While it is true that
a majority of the settlers were disenfranchised because of gender, race or lack of property,
the fact remains that popular participation in the political process was far greater in the
colonies in the eighteenth century than in the Mother Country.
The Americans, even as they separated from the Crown, nonetheless claimed that all they
wanted was their rights as Englishmen. After independence, as they set about creating
union and government, they relied on two sources of thought -- classic English political
theory, and their own experiences. In the Articles of Confederation, the United States'
first constitution, the framers relied more on theory, and aimed at creating a federal
government that would avoid the problems associated with a strong central government,
the very problem that had led to their revolt from Great Britain. But that system proved
too weak for the task of governing the new nation, since it lacked sufficient powers. At
the Philadelphia convention of 1787, John Dickinson, the chief author of the Articles,
urged his fellow delegates: "Experience must be our only guide; reason may mislead us."
The Constitution they drafted drew from both reason and experience, and as a result has
proven a remarkably durable document.
But the Constitution, even after its adoption in 1788 and the addition of the first ten
amendments, the Bill of Rights, in 1791, was little more than an outline of government.
The Philadelphia convention had spelled out certain powers and limitations that it had
considered important to have clearly articulated, but it left much of the actual operating
structure to be worked out on the basis of experience. For example, there is no mention of
a "cabinet" in the Constitution, yet George Washington, the first president, convened the
heads of the executive departments on a regular basis to advise him, and the Cabinet has
become part of the American government.
One unique aspect of the American system has been the role played by the courts.
Although the Constitution set up three branches of government -- the legislative,
executive and judicial -- it devoted relatively little space to the role of the courts,
assuming that judges would know what to do. But unlike Great Britain, where there was
little interplay between the courts and the other branches of government, in the United
States the Supreme Court has become a balance wheel of constitutional government. The
Supreme Court is the final arbiter of what the Constitution means. In many of its
decisions in the last two centuries the Court has arbitrated between the executive and
legislative branches, and has also spelled out both the powers and the limits of the federal
government.
In the documents in this section, we see the beginnings of the American governmental
system, and how it evolved into the basic constitutional scheme under which Americans
still live.
Footnote 1: Granted, the Americans of the eighteenth century did not believe that
everyone shared equally in this covenant, and over the next two hundred years the growth
of democracy in America often focused on bringing these other groups, such as African
Americans and women, into the social contract.
The Mayflower Compact (1620)
The settlers who came to the New World brought with them a great deal of baggage in
the form of ideas and beliefs they had held dear in England. Indeed, many of them, such
as the Puritans, came to America so they could live in stricter accord with those beliefs.
The Pilgrims, a branch of the Puritans, arrived off the coast of Massachusetts in
November 1620, determined to live sacred lives according to biblical commands, and in
so doing to build a "city upon a hill" that would be a beacon to the rest of the world.
But aside from their religious enthusiasm, the Pilgrims also knew that the English
settlement founded a few years earlier at Jamestown in Virginia had practically foundered
because of the lack of a strong government and leadership. They would not make that
mistake, and agreed that once a government had been established, they would obey the
commands of its leaders.
In making this compact, the Pilgrims drew upon two strong traditions. One was the
notion of a social contract, which dated back to biblical times and which would receive
fuller expression in the works of Thomas Hobbes and John Locke later in the century.
The other was the belief in covenants. Puritans believed that covenants existed not only
between God and man, but also between man and man. The Pilgrims had used covenants
in establishing their congregations in the Old World. The Mayflower Compact is such a
covenant in that the settlers agreed to form a government and be bound by its rules.
The Compact is often described as America's first constitution, but it is not a constitution
in the sense of being a fundamental framework of government. Its importance lies in the
belief that government is a form of covenant, and that for government to be legitimate, it
must derive from the consent of the governed. The settlers recognized that individually
they might not agree with all of the actions of the government they were creating; but
they, and succeeding generations, understood that government could be legitimate only if
it originated with the consent of those it claimed to govern.
For further reading: William Bradford, Of Plymouth Plantation (Morison, ed., 1952);
George Langdon, Pilgrim Colony (1966); John Demos, A Little Commonwealth (1970).
The Mayflower Compact
We whose names are underwritten, the loyal subjects of our dread Sovereign Lord King
James, by the Grace of God of Great Britain, France and Ireland, King, Defender of the
Faith, etc.
Having undertaken, for the Glory of God and advancement of the Christian Faith and
Honour of our King and Country, a Voyage to plant the First Colony in the Northern
Parts of Virginia, do by these presents solemnly and mutually in the presence of God and
one of another, Covenant and Combine ourselves together into a Civil Body Politic, for
our better ordering and preservation and furtherance of the ends aforesaid; and by virtue
hereof to enact, constitute and frame such just and equal Laws, Ordinances, Acts,
Constitutions and Offices, from time to time, as shall be thought most meet and
convenient for the general good of the Colony, unto which we promise all due
submission and obedience. In witness whereof we have hereunder subscribed our names
at Cape Cod, the 11th of November, in the year of the reign of our Sovereign Lord King
James, of England, France and Ireland the eighteenth, and of Scotland the fifty-fourth.
Anno Domini 1620.
Source: William Bradford, Of Plymouth Plantation, 1620-1647 (Samuel Eliot Morison,
ed., 1952), 75-76.
Fundamental Orders of Connecticut
Forasmuch as it hath pleased the All-mighty God by the wise disposition of his divyne
pruvidence so to Order and dispose of things that we the Inhabitants and Residents of
Windsor, Harteford and Wethersfield are now cohabiting and dwelling in and uppon the
River of Conectecotte and the Lands thereunto adioyneing; And well knowing where a
people are gathered together the word of God requires that to mayntayne the peace and
union of such a people there should be an orderly and decent Government established
according to God, to order and dispose of the affayres of the people at all seasons as
occation shall require; doe therefore assotiate and conioyne our selves to be as one
Publike State or Commonwelth; and doe, for our selves and our Successors and such as
shall be adioyned to us att any tyme hereafter, enter into Combination and Confederation
togather, to mayntayne and presearve the liberty and purity of the gospell of our Lord
Jesus which we now professe, as also the disciplyne of the Churches, which according to
the truth of the said gospell is now practised amongst us; As also in our Civell Affaires to
be guided and governed according to such Lawes, Rules, Orders and decrees as shall be
made, ordered & decreed, as followeth:-1. It is Ordered...that there shall be yerely two generall Assemblies or Courts, the one the
second thursday in Aprill, the other the second thursday in September, following; the first
shall be called the Courte of Election, wherein shall be yerely Chosen...soe many
Magestrats and other publike Officers as shall be found requisitte: Whereof one to be
chosen Governour for the yeare ensueing and untill another be chosen, and noe other
Magestrate to be chosen for more than one yeare; provided allwayes there be sixe chosen
besids the Governour; which being chosen and sworne according to an Oath recorded for
that purpose shall have power to administer justice according to the Lawes here
established, and for want thereof according to the rule of the word of God; which choise
shall be made by all that are admitted freemen and have taken the Oath of Fidelity, and
doe cohabitte within this Jurisdiction, (having beene admitted Inhabitants by the major
part of the Towne wherein they live,) or the major parte of such as shall be then present....
4. It is Ordered . . . that noe person be chosen Governor above once in two yeares, and
that the Governor be alwayes a member of some approved congregation, and formerly of
the Magestracy within this Jurisdiction; and all the Magestrats Freemen of this
Commonwelth:...
5. It is Ordered . . . that to the aforesaid Courte of Election the severall Townes shall send
their deputyes, and when the Elections are ended they may proceed in any publike
searvice as at other Courts. Also the other Generall Courte in September shall be for
makeing of lawes, and any other publike occation, which conserns the good of the
Commonwelth. . . .
8. It is Ordered . . . that Wyndsor, Hartford and Wethersfield shall have power, ech
Towne, to send fower of their freemen as their deputyes to every Generall Courte; and
whatsoever other Townes shall be hereafter added to this Jurisdiction, they shall send so
many deputyes as the Courte shall judge meete, a resonable proportion to the number of
Freemen that are in the said Townes being to be attended therein; which deputyes shall
have the power of the whole Towne to give their voats and alowance to all such lawes
and orders as may be for the publike good, and unto which the said Townes are to be
bownd.
9. It is ordered and decreed, that the deputyes thus chosen shall have power and liberty to
appoynt a tyme and a place of meeting togather before any Generall Courte to aduise and
consult of all such things as may concerne the good of the publike, as also to examine
their owne Elections, whether according to the order, and if they or the gretest prte of
them find any election to be illegall they may seclud such for prsent from their meeting,
and returne the same and their resons to the Courte: and if yt proue true, the Courte may
fyne the prty or prtyes so intruding and the Towne, if they see cause, and giue out a
warrant to goe to a newe election in a legall way, either in whole or in prte. Also the said
deputyes shall haue power to fyne any that shall be disorderly at their meetings, or for not
coming in due tyme or place according to appoyntment; and they may returne the said
fynes into the Courte if yt be rfused to be paid, and the tresurer to take notice of yt, and to
estreete or levy the same as he doth other fynes.
10. It is Ordered, sentenced and decreed, that euery Generall Courte, except such as
through neglecte of the Gournor and the greatest prte of Magestrats the Freemen
themselves doe call, shall consist of the Gouernor, or some one chosen to moderate the
Court, and 4 other Magestrats at lest, wth the mayor prte of the deputyes of the seuerall
Townes legally chosen; and in case the Freemen or mayor prte of them through neglect or
refusall of the Gouernor and mayor prte of the magestrats, shall call a Courte, that yt shall
consist of the mayor prte of Freemen that are prsent or their deputyes, wth a Moderator
chosen by them: In wch said Generall Courts shall consist the supreme power of the
Commonwelth, and they only shall haue power to make laws or repeale them; to graunt
leuyes, to admitt of Freemen, dispose of lands vndisposed of, to seuerall Townes or
prsons, and also shall haue power to call ether Courte or Magestrate or any other prson
whatsoeuer into question for any misdemeanour, and may for just causes displace or
deale otherwise according to the nature of the offence; and also may deale in any other
matter that concerns the good of this comon welth, excepte election of Magestrats, wch
shall be done by the whole boddy of Freemen: In wch Courte the Gouernour or
Moderator shall haue power to order the Courte to giue liberty of spech, and silence
vnceasonable and disorderly speakeings, to put all things to voate, and in case the vote be
equall to haue the casting voice. But non of these Courts shall be adiorned or dissolued
wthout the consent of the major prte of the Court.
11. It is ordered, sentenced and decreed, that when any Generall Courte vppon the
occasions of the Commonwelth haue agreed vppon any summe or somes of mony to be
leuyed vppon the seuerall Townes wthin this Jurisdiction, that a Committee be chosen to
sett out and appoynt wt shall be the prportion of euery Towne to pay of the said leuy,
prvided the Committees be made vp of an equall number out of each Towne.
Source: F. N. Thorpe, ed., Federal and State Constitutions, vol.1 (1909), 519.
Albany Plan of Union
It is proposed that humble application be made for an act of Parliament of Great Britain,
by virtue of which one general government may be formed in America, including all the
said colonies, within and under which government each colony may retain its present
constitution, except in the particulars wherein a change may be directed by the said act,
as hereafter follows.
1. That the said general government be administered by a President-General, to be
appointed and supported by the crown; and a Grand Council, to be chosen by the
representatives of the people of the several Colonies met in their respective assemblies.
2. That within -- months after the passing such act, the House of Representatives that
happen to be sitting within that time, or that shall be especially for that purpose convened,
may and shall choose members for the Grand Council, in the following proportion, that is
to say,
Massachusetts Bay 7 New Hampshire 2 Connecticut 5 Rhode Island 2 New York 4 New
Jersey 3 Pennsylvania 6 Maryland 4 Virginia 7 North Carolina 4 South Carolina 4 -----48
3. -- who shall meet for the first time at the city of Philadelphia, being called by the
President-General as soon as conveniently may be after his appointment.
4. That there shall be a new election of the members of the Grand Council every three
years; and, on the death or resignation of any member, his place should be supplied by a
new choice at the next sitting of the Assembly of the Colony he represented.
5. That after the first three years, when the proportion of money arising out of each
Colony to the general treasury can be known, the number of members to be chosen for
each Colony shall, from time to time, in all ensuing elections, be regulated by that
proportion, yet so as that the number to be chosen by any one Province be not more than
seven, nor less than two.
6. That the Grand Council shall meet once in every year, and oftener if occasion require,
at such time and place as they shall adjourn to at the last preceding meeting, or as they
shall be called to meet at by the President-General on any emergency; he having first
obtained in writing the consent of seven of the members to such call, and sent duly and
timely notice to the whole.
7. That the Grand Council have power to choose their speaker; and shall neither be
dissolved, prorogued, nor continued sitting longer than six weeks at one time, without
their own consent or the special command of the crown.
8. That the members of the Grand Council shall be allowed for their service ten shillings
sterling per diem, during their session and journey to and from the place of meeting;
twenty miles to be reckoned a day's journey.
9. That the assent of the President-General be requisite to all acts of the Grand Council,
and that it be his office and duty to cause them to be carried into execution.
10. That the President-General, with the advice of the Grand Council, hold or direct all
Indian treaties, in which the general interest of the Colonies may be concerned; and make
peace or declare war with Indian nations.
11. That they make such laws as they judge necessary for regulating all Indian trade.
12. That they make all purchases from Indians, for the crown, of lands not now within the
bounds of particular Colonies, or that shall not be within their bounds when some of them
are reduced to more convenient dimensions.
13. That they make new settlements on such purchases, by granting lands in the King's
name, reserving a quitrent to the crown for the use of the general treasury.
14. That they make laws for regulating and governing such new settlements, till the
crown shall think fit to form them into particular governments.
15. That they raise and pay soldiers and build forts for the defence of any of the Colonies,
and equip vessels of force to guard the coasts and protect the trade on the ocean, lakes, or
great rivers; but they shall not impress men in any Colony, without the consent of the
Legislature.
16. That for these purposes they have power to make laws, and lay and levy such general
duties, imposts, or taxes, as to them shall appear most equal and just (considering the
ability and other circumstances of the inhabitants in the several Colonies), and such as
may be collected with the least inconvenience to the people; rather discouraging luxury,
than loading industry with unnecessary burdens.
17. That they may appoint a General Treasurer and Particular Treasurer in each
government when necessary; and, from time to time, may order the sums in the treasuries
of each government into the general treasury; or draw on them for special payments, as
they find most convenient.
18. Yet no money to issue but by joint orders of the President-General and Grand Council;
except where sums have been appropriated to particular purposes, and the PresidentGeneral is previously empowered by an act to draw such sums.
19. That the general accounts shall be yearly settled and reported to the several
Assemblies.
20. That a quorum of the Grand Council, empowered to act with the President-General,
do consist of twenty-five members; among whom there shall be one or more from a
majority of the Colonies.
21. That the laws made by them for the purposes aforesaid shall not be repugnant, but, as
near as may be, agreeable to the laws of England, and shall be transmitted to the King in
Council for approbation, as soon as may be after their passing; and if not disapproved
within three years after presentation, to remain in force.
22. That, in case of the death of the President-General, the Speaker of the Grand Council
for the time being shall succeed, and be vested with the same powers and authorities, to
continue till the King's pleasure be known.
23. That all military commission officers, whether for land or sea service, to act under
this general constitution, shall be nominated by the President-General; but the
approbation of the Grand Council is to be obtained, before they receive their
commissions. And all civil officers are to be nominated by the Grand Council, and to
receive the President-General's approbation before they officiate.
24. But, in case of vacancy by death or removal of any officer, civil or military, under
this constitution, the Governor of the Province in which such vacancy happens may
appoint, till the pleasure of the President-General and Grand Council can be known.
25. That the particular military as well as civil establishments in each Colony remain in
their present state, the general constitution notwithstanding; and that on sudden
emergencies any Colony may defend itself, and lay the accounts of expense thence
arising before the President-General and General Council, who may allow and order
payment of the same, as far as they judge such accounts just and reasonable.
Source: Leonard Larrabee, ed., Papers of Benjamin Franklin, vol. 5 (1959), 387-92.
The Northwest Ordinance (1787)
Because the Articles of Confederation, adopted by the states in 1781 as the country's first
constitution, have often been considered a failure, it is all too easy to overlook the
significant accomplishments of the American government under the Articles. The
Confederation negotiated a peace treaty ending the war with Great Britain, carried on
diplomatic relations with foreign countries, settled land disputes with the Indian tribes
and, in two brilliant pieces of legislation, established a far-reaching policy for the
settlement and incorporation of western lands.
After first providing for the survey of the land west of the Appalachian mountains, the socalled Northwest Territory, Congress enacted the Northwest Ordinance of 1787, the
single most important piece of legislation in the Confederation period. The Ordinance
provided the means by which new states would be created out of the western lands and
then admitted into the Union. Governors and judges appointed by Congress would rule a
territory until it contained 5,000 free male inhabitants of voting age; then the inhabitants
would elect a territorial legislature, which would send a non-voting delegate to Congress.
When the population reached 60,000, the legislature would submit a state constitution to
Congress and, upon its approval, the state would enter the Union.
The importance of the statute, aside from providing for orderly westerly settlement, is
that it made clear that the new states would be equal to the old; there would be no inferior
or superior states in the Union. Moreover, in the Ordinance Congress compacted with the
settlers of the territories that they would be equal citizens of the United States, and would
enjoy all of the rights that had been fought for in the Revolution. Where the Articles of
Confederation lacked a bill of rights, the Ordinance provided one that included many of
the basic liberties the colonists had considered essential, such as trial by jury, habeas
corpus,1 and religious freedom. One should also note, however, the important role that
property still played in government, a holdover from British theory that only those with a
tangible stake in society should partake in its governance.
The Northwest Ordinance would, with minor adjustments, remain the guiding policy for
the admission of all future states into the Union.
For further reading: Merrill Jensen, The New Nation: A History of the United States
during the Confe- deration, 1781-1789 (1950); John Porter Bloom, ed., The American
Territorial System (1974); T.C. Pease, "The Ordinance of 1787," Miss. Valley Hist.Rev.
25 (1938): 167.
Footnote 1: Habeas Corpus, which literally means "you have the body," is one of the
fundamental rights in Anglo-American law. Through the writ of habeas corpus, a prisoner
may challenge the legality of his or her imprisonment, and if the state cannot present
adequate evidence to justify the jailing, the court may order the prisoner's release.
The Northwest Ordinance
Be it ordained by the authority aforesaid, That there shall be appointed from time to time
by Congress, a governor, whose commission shall continue in force for the term of three
years, unless sooner revoked by Congress; he shall reside in the district, and have a
freehold estate therein in 1,000 acres of land, while in the exercise of his office.
There shall be appointed from time to time by Congress, a secretary, whose commission
shall continue in force for four years unless sooner revoked; he shall reside in the district,
and have a freehold estate therein in 500 acres of land, while in the exercise of his office.
It shall be his duty to keep and preserve the acts and laws passed by the legislature, and
the public records of the district, and the proceedings of the governor in his executive
department, and transmit authentic copies of such acts and proceedings, every six months,
to the Secretary of Congress: There shall also be appointed a court to consist of three
judges, any two of whom to form a court, who shall have a common law jurisdiction, and
reside in the district, and have each therein a freehold estate in 500 acres of land while in
the exercise of their offices; and their commissions shall continue in force during good
behavior.
The governor and judges, or a majority of them, shall adopt and publish in the district
such laws of the original States, criminal and civil, as may be necessary and best suited to
the circumstances of the district, and report them to Congress from time to time: which
laws shall be in force in the district until the organization of the General Assembly
therein, unless disapproved of by Congress; but afterwards the Legislature shall have
authority to alter them as they shall think fit.
The governor, for the time being, shall be commander-in-chief of the militia, appoint and
commission all officers in the same below the rank of general officers; all general officers
shall be appointed and commissioned by Congress.
Previous to the organization of the general assembly, the governor shall appoint such
magistrates and other civil officers in each county or township, as he shall find necessary
for the preservation of the peace and good order in the same: After the general assembly
shall be organized, the powers and duties of the magistrates and other civil officers shall
be regulated and defined by the said assembly; but all magistrates and other civil officers
not herein otherwise directed, shall, during the continuance of this temporary government,
be appointed by the governor.
For the prevention of crimes and injuries, the laws to be adopted or made shall have force
in all parts of the district, and for the execution of process, criminal and civil, the
governor shall make proper divisions thereof; and he shall proceed from time to time as
circumstances may require, to lay out the parts of the district in which the Indian titles
shall have been extinguished, into counties and townships, subject however to such
alterations as may thereafter be made by the legislature.
So soon as there shall be five thousand free male inhabitants of full age in the district,
upon giving proof thereof to the governor, they shall receive authority, with time and
place, to elect representatives from their counties or townships to represent them in the
general assembly:
Provided, That, for every five hundred free male inhabitants, there shall be one
representative, and so on progressively with the number of free male inhabitants shall the
right of representation increase, until the number of representatives shall amount to
twenty-five; after which, the number and proportion of representatives shall be regulated
by the legislature:
Provided, That no person be eligible or qualified to act as a representative unless he shall
have been a citizen of one of the United States three years, and be a resident in the district,
or unless he shall have resided in the district three years; and, in either case, shall
likewise hold in his own right, in fee simple, two hundred acres of land within the same;
Provided, also, That a freehold in fifty acres of land in the district, having been a citizen
of one of the states, and being resident in the district, or the like freehold and two years
residence in the district, shall be necessary to qualify a man as an elector of a
representative.
The representatives thus elected, shall serve for the term of two years; and, in case of the
death of a representative, or removal from office, the governor shall issue a writ to the
county or township for which he was a member, to elect another in his stead, to serve for
the residue of the term.
The general assembly or legislature shall consist of the governor, legislative council, and
a house of representatives. The Legislative Council shall consist of five members, to
continue in office five years, unless sooner removed by Congress; any three of whom to
be a quorum: and the members of the Council shall be nominated and appointed in the
following manner, to wit: As soon as representatives shall be elected, the Governor shall
appoint a time and place for them to meet together; and, when met, they shall nominate
ten persons, residents in the district, and each possessed of a freehold in five hundred
acres of land, and return their names to Congress; five of whom Congress shall appoint
and commission to serve as aforesaid; and, whenever a vacancy shall happen in the
council, by death or removal from office, the house of representatives shall nominate two
persons, qualified as aforesaid, for each vacancy, and return their names to Congress; one
of whom Congress shall appoint and commission for the residue of the term. And every
five years, four months at least before the expiration of the time of service of the
members of council, the said house shall nominate ten persons, qualified as aforesaid, and
return their names to Congress; five of whom Congress shall appoint and commission to
serve as members of the council five years, unless sooner removed. And the governor,
legislative council, and house of representatives, shall have authority to make laws in all
cases, for the good government of the district, not repugnant to the principles and articles
in this ordinance established and declared. And all bills, having passed by a majority in
the house, and by a majority in the council, shall be referred to the governor for his assent;
but no bill, or legislative act whatever, shall be of any force without his assent. The
governor shall have power to convene, prorogue, and dissolve the general assembly,
when, in his opinion, it shall be expedient.
The governor, judges, legislative council, secretary, and such other officers as Congress
shall appoint in the district, shall take an oath or affirmation of fidelity and of office; the
governor before the president of congress, and all other officers before the Governor. As
soon as a legislature shall be formed in the district, the council and house assembled in
one room, shall have authority, by joint ballot, to elect a delegate to Congress, who shall
have a seat in Congress, with a right of debating but not of voting during this temporary
government.
And, for extending the fundamental principles of civil and religious liberty, which form
the basis whereon these republics, their laws and constitutions are erected; to fix and
establish those principles as the basis of all laws, constitutions, and governments, which
forever hereafter shall be formed in the said territory: to provide also for the
establishment of States, and permanent government therein, and for their admission to a
share in the federal councils on an equal footing with the original States, at as early
periods as may be consistent with the general interest: It is hereby ordained and declared
by the authority aforesaid, That the following articles shall be considered as articles of
compact between the original States and the people and States in the said territory and
forever remain unalterable, unless by common consent, to wit:
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 preser-vation, 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. 5. There shall be formed in the said territory, not less than three nor more than five
States. . . . And, whenever any of the said States shall have sixty thousand free
inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the
United States, on an equal footing with the original States in all respects whatever, and
shall be at liberty to form a permanent constitution and State government: Provided, the
constitution and government so to be formed, shall be republican, and in conformity to
the principles contained in these articles; and, so far as it can be consistent with the
general interest of the confederacy, such admission shall be allowed at an earlier period,
and when there may be a less number of free inhabitants in the State than sixty thousand.
ART. 6. There shall be neither slavery nor involuntary servitude in the said territory,
otherwise than in the punishment of crimes whereof the party shall have been duly
convicted: Provided, always, That any person escaping into the same, from whom labor
or service is lawfully claimed in any one of the original States, such fugitive may be
lawfully reclaimed and conveyed to the person claiming his or her labor or service as
aforesaid.
Source: F. N. Thorpe, ed., Federal and State Constitutions, vol. 2 (1909), 957.
Constitution of the United States (1787)
By the mid-1780s, the weaknesses of the Articles of Confederation had become clear to
many observers. In their reaction to what they considered the authoritarian government of
George III, the framers of the Articles had deliberately created a weak government,
although they believed that it had sufficient powers to govern. That assumption proved
false. Among its other defects, the Articles of Confederation gave the Congress no power
to tax or to regulate commerce among the states, it lacked both executive and judicial
branches, and amending the Articles required unanimity of all the states.
James Madison of Virginia, working with the blessing of George Washington, led the
drive to get Congress to call a convention for the express purpose of revising the Articles
of Confederation. But once the delegates had gathered in Philadelphia in the summer of
1787, they took the bit in their teeth and decided to draft an entirely new document, one
that would meet what they perceived to be the current and future needs of the country.
Government under the Constitution remained federal in nature, that is, power was shared
between the states and the national government. But where under the Articles the states
had been the dominant force, under the Constitution the national government would be
supreme. The framers saw both state and national governments as active participants in
the political process.
One of the key features in the Constitution, and one that would become a critical factor in
the nineteenth century, is that the source of sovereignty, the source of the authority for
the document, is the citizenry. "We the People of the United States" ordain and establish
the Constitution. This is a direct link to the Declaration of Independence, which declared
that governments derive their legitimacy from the consent of the governed.
Perhaps the most striking feature of the Constitution was how extensively it implemented
the prevailing notions of separation of powers. Clear lines divided the legislative,
executive and judicial branches. In a sharp departure from their experience under the
Articles, the framers put a great deal of power in the hands of the president. At the same
time, a system of checks and balances ensured that no one branch of the government
would dominate the others.
In the debate over ratification of the Constitution that took place in the fall and winter of
1787-88, proponents of the new document -- called Federalists -- claimed that not only
would it remedy the defects of the Articles of Confederation, but it would provide a
strong yet limited government that would ensure the peace and security of the new nation.
Those opposed to the Constitution -- known as Anti-Federalists -- operated at a
disadvantage, because they recognized and admitted that the government under the
Articles had not been a success. They did, however, demand that as a price of ratification
a bill of rights should be added. The Federalists believed that no such listing was
necessary, because as a government of limited powers, the new government would have
no authority to invade the rights of the citizens. But as Thomas Jefferson explained to
James Madison, "A bill of rights is what the people are entitled to against every
government on earth, general or particular, and what no just government should refuse, or
rest upon inferences."
With the ratification of the Constitution, the new government met in the spring of 1789,
and Congress immediately adopted and sent to the states a series of proposed
amendments. The states ratified ten of them by 1791, and these have since been known as
the Bill of Rights. Other amendments have followed, a few of them primarily technical in
nature, but for the most part they have expanded the democratic nature of American
society -- by abolishing slavery, widening the suffrage or making government more
responsive to the people, as in the direct election of senators.
The Constitution has served the people of the United States admirably for over 200 years,
in part because the framers were wise enough to recognize that they could not foresee
every problem. Those who followed them thus had the ability to take the document and
adapt it to new needs and new conditions.
For further reading: Michael Kammen, ed., The Origins of the American Constitution: A
Documentary History (1986); Forrest McDonald, Novus Ordo Seclorum: The Intellectual
Origins of the Constitution (1985); Clinton Rossiter, 1787: The Grand Convention (1966);
Clinton Rossiter, ed., The Federalist Papers (1961).
Constitution of the United States
We the People of the United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defence, promote the
general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this Constitution for the United States of America.
Article I
Section 1. All legislative Powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of Representatives.
Section 2. The House of Representatives shall be composed of Members chosen every
second Year by the People of the several States, and the Electors in each State shall have
the Qualifications requisite for Electors of the most numerous Branch of the State
Legislature.
No Person shall be a Representative who shall not have attained to the Age of twenty five
Years, and been seven Years a Citizen of the United States, and who shall not, when
elected, be an Inhabitant of that State in which he shall be chosen.
Representatives and direct Taxes shall be apportioned among the several States which
may be included within this Union, according to their respective Numbers, which shall be
determined by adding to the whole Number of free Persons, including those bound to
Service for a Term of Years, and excluding Indians not taxed, three fifths of all other
Persons. The actual Enumeration shall be made within three Years after the first Meeting
of the Congress of the United States, andwithin every subsequent Term of ten Years, in
such Manner as they shall by Law direct. The Number of Representatives shall not
exceed one for every thirty Thousand, but each State shall have at Least one
Representative; and until such enumeration shall be made, the State of New Hampshire
shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence
Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight,
Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and
Georgia three.
When vacancies happen in the Representation from any State, the Executive Authority
thereof shall issue Writs of Election to fill such Vacancies.
The House of Representatives shall chuse their Speaker and other Officers; and shall
have the sole Power of Impeachment.
Section 3. The Senate of the United States shall be composed of two Senators from each
State, chosen by the Legislature thereof, for six Years; and each Senator shall have one
Vote.
Immediately after they shall be assembled in Consequence of the first Election, they shall
be divided as equally as may be into three Classes. The Seats of the Senators of the first
Class shall be vacated at the Expiration of the second Year, of the second Class at the
Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so
that one third may be chosen every second Year; and if Vacancies happen by Resignation,
or otherwise, during the Recess of the Legislature of any State, the Executive thereof may
make temporary Appointments until the next Meeting of the Legislature, which shall then
fill such Vacancies.
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and
been nine Years a Citizen of the United States, and who shall not, when elected, be an
Inhabitant of that State for which he shall be chosen.
The Vice President of the United States shall be President of the Senate, but shall have no
Vote, unless they be equally divided.
The Senate shall chuse their other Officers, and also a President pro tempore, in the
Absence of the Vice President, or when he shall exercise the Office of President of the
United States.
The Senate shall have the sole Power to try all Impeachments. When sitting for that
Purpose, they shall be on Oath or Affirmation. When the President of the United States is
tried the Chief Justice shall preside: And no Person shall be convicted without the
Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office,
and disqualification to hold and enjoy any Office of honor, Trust or Profit under the
United States: but the Party convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to Law.
Section 4. The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof; but the
Congress may at any time by Law make or alter such Regulations, except as to the Places
of chusing Senators.
The Congress shall assemble at least once in every Year, and such Meeting shall be on
the first Monday in December, unless they shall by Law appoint a different Day.
Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of
its own Members, and a Majority of each shall constitute a Quorum to do Business; but a
smaller Number may adjourn from day to day, and may be authorized to compel the
Attendance of absent Members, in such Manner, and under such Penalties as each House
may provide.
Each House may determine the Rules of its Proceedings, punish its Members for
disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time to time publish the
same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and
Nays of the Members of either House on any question shall, at the Desire of one fifth of
those Present, be entered on the ournal.
Neither House, during the Session of Congress, shall, without the Consent of the other,
adjourn for more than three days, nor to any other Place than that in which the two
Houses shall be sitting.
Section 6. The Senators and Representatives shall receive a Compensation for their
Services, to be ascertained by law, and paid out of the Treasury of the United States.
They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged
from Arrest during their Attendance at the Session of their respective Houses, and in
going to and returning from the same; and for any Speech or Debate in either House, they
shall not be questioned in any other Place.
No Senator or Representative shall, during the Time for which he was elected, be
appointed to any civil Office under the Authority of the United States, which shall have
been created, or the Emoluments whereof shall have been encreased during such time;
and no Person holding any Office under the United States, shall be a Member of either
House during his Continuance in Office.
Section 7. All Bills for raising Revenue shall originate in the House of Representatives;
but the Senate may propose or concur with amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the Senate, shall,
before it become a Law, be presented to the President of the United States; If he approve
he shall sign it, but if not he shall return it with his Objections to that House in which it
shall have originated, who shall enter the Objections at large on their Journal, and
proceed to reconsider it. If after such Reconsiderations two thirds of that House shall
agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by
which it shall likewise be reconsidered, and if approved by two thirds of that House, it
shall become a Law. But in all such Cases the Votes of both Houses shall be determined
by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be
entered on the Journal of each House respectively. If any Bill shall not be returned by the
President within ten Days (Sunday excepted) after it shall have been presented to him, the
Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their
Adjournment prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of
Representatives may be necessary (except on a question of Adjournment) shall be
presented to the President of the United States; and before the Same shall take Effect,
shall be approved by him, or being disapproved by him, shall be repassed by two thirds of
the Senate and House of Representatives, according to the Rules and Limitations
prescribed in the Case of a Bill.
Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and general Welfare of
the United States; but all Duties, Imposts and Excises shall be uniform throughout the
United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of
Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of
Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the
United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses
against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a
longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such
Part of them as may be employed in the Service of the United States, reserving to the
States respectively, the Appointment of the Officers, and the Authority of training the
Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not
exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance
of Congress, become the Seat of the Government of the United States, and to exercise
like Authority over all Places purchased by the Consent of the Legislature of the State in
which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and
other needful Buildings; -- And
To make all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof.
Section 9. The Migration or Importation of such Persons as any of the States now existing
shall think proper to admit, shall not be prohibited by the Congress prior to the Year one
thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation,
not exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or
Enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of
one State over those of another; nor shall Vessels bound to, or from, one State, be obliged
to enter, clear or pay Duties in another.
No Money shall be drawn from the Treasury, but in Consequence of Appropriations
made by Law; and a regular Statement and Account of the Receipts and Expenditures of
all public Money shall be published from time to time.
No Title of Nobility shall be granted by the United States: And no Person holding any
Office or Trust under them, shall, without the Consent of the Congress, accept of any
present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or
foreign State.
Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters
of Marque and Reprisal, coin Money; emit Bills of Credit, make any Thing but gold and
silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law,
or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on
Imports or Exports, except what may be absolutely necessary for executing its inspection
Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or
Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall
be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops,
or Ships of War in time of Peace, enter into any Agreement or Compact with another
State, or with a foreign Power, or engage in War, unless actually invaded, or in such
imminent Danger as will not admit of delay.
Article II
Section 1. The executive Power shall be vested in a President of the United States of
America. He shall hold his Office during the Term of four Years, and, together with the
Vice President, chosen for the same Term, be elected, as follows
Each State shall appoint, In such Manner as the Legislature thereof may direct, a Number
of Electors, equal to the whole Number of Senators and Representatives to which the
State may be entitled in the Congress: but no Senator or Representative, or Person
holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of
whom one at least shall not be an Inhabitant of the same State with themselves. And they
shall make a List of all the Persons voted for, and of the number of Votes for each; which
List they shall sign and certify, and transmit sealed to the Seat of the Government of the
United States, directed to the President of the Senate. The President of the Senate shall, in
the Presence of the Senate and House of Representatives, open all the Certificates, and
the Votes shall then be counted. The Person having the greatest number of Votes shall be
the President, if such Number be a Majority of the whole Number of Electors appointed;
and if there be more than one who have such Majority, and have an equal Number of
Votes, then the House of Representatives shall immediately chuse by Ballot one of them
for President; and if no Person have a Majority, then from the five highest on the List the
said House shall in like Manner chuse the President. But in chusing the President, the
Votes shall be taken by States, the Representation from each State having one Vote; a
quorum for this Purpose shall consist of a Member or Members from two thirds of the
States, and a Majority of all the States shall be necessary to a Choice. In every Case, after
the Choice of the President, the Person having the greatest Number of Votes of the
Electors shall be the Vice President. But if there should remain two or more who have
equal Votes, the Senate shall chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and the Day on which
they shall give their Votes; which Day shall be the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United States at the time of
the Adoption of this Constitution, shall be eligible to the Office of President; neither shall
any Person be eligible to that Office who shall not have attained to the Age of thirty five
Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or of his Death, Resignation, or
Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on
the Vice President, and the Congress may by Law provide for the Case of Removal,
Death, Resignation or Inability, both of the President and Vice President, declaring what
Officer shall then act as President, and such Officer shall act accordingly, until the
Disability be removed, or a President shall be elected.
The President shall, at stated Times, receive for his Services, a Compensation, which
shall neither be encreased nor diminished during the Period for which he shall have been
elected, and he shall not receive within that Period any other emolument from the United
States, or any of them.
Before he enter on the Execution of his Office, he shall take the following Oath or
Affirmation: -- "I do solemnly swear (or affirm) that I will faithfully execute the Office of
President of the United States, and will to the best of my Ability, preserve, protect and
defend the Constitution of the United States."
Section 2. The President shall be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several States, when called into the actual Service
of the United States; he may require the Opinion, in writing, of the principal Officer in
each of the executive Departments, upon any Subject relating to the Duties of their
respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses
against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur; and he shall nominate, and by and
with the Advice and Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United
States, whose Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of Law, or in the
Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the
Recess of the Senate, by granting Commissions which shall expire at the End of their
next Session.
Section 3. He shall from time to time give to the Congress Information of the State of the
Union, and recommend to their Consideration such Measures as he shall judge necessary
and expedient; he may, on extraordinary Occasions, convene both Houses, or either of
them, and in Case of Disagreements between them, with Respect to the Time of
Adjournment, he may adjourn them to such Time as he shall think proper; he shall
receive Ambassadors and other public Ministers; he shall take Care that the Laws be
faithfully executed, and shall Commission all the Officers of the United States.
Section 4. The President, Vice President and all Civil Officers of the United States, shall
be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or
other high Crimes and Misdemeanors.
Article III
Section 1. The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and establish.
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good
Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which
shall not be diminished during their Continuance in Office.
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which shall be
made, under their Authority; -- to all Cases affecting Ambassadors, other public Ministers
and Consuls; -- to all Cases of admiralty and maritime Jurisdiction; -- to Controversies to
which the United States shall be a Party; -- to Controversies between two or more States;
-- between a State and Citizens of another State; -- between Citizens of different States; -between Citizens of the same State claiming Lands under Grants of different States, and
between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the
other Cases before mentioned, the supreme Court shall have appelate Jurisdiction, both as
to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall
make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial
shall be held in the State where the said Crimes shall have been committed; but when not
committed within any State, the Trial shall be at such Place or Places as the Congress
may by Law have directed.
Section 3. Treason against the United States, shall consist only in levying War against
them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be
convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or
on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of
Treason shall work Corruption of Blood, or Forfeiture except during the Life of the
Person attainted.
Article IV
Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records,
and judicial proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and
the Effect thereof.
Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from
Justice, and be found in another State, shall on Demand of the executive Authority of the
State from which he fled, be delivered up, to be removed to the State having Jurisdiction
of the Crime.
No Person held to Service or Labour in one State, under the Laws thereof, escaping into
another, shall, in Consequence of any Law or Regulation therein, be discharged from
such Service or Labour, but shall be delivered up on Claim of the Party to whom such
Service or Labour may be due.
Section 3. New States may be admitted by the Congress into this Union; but no new State
shall be formed or erected within the Jurisdiction of any other State; nor any State be
formed by the Junction of two or more States, or Parts of States, without the Consent of
the Legislatures of the States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States; and nothing in
this Constitution shall be so construed as to Prejudice any Claims of the United States, or
of any particular State.
Section 4. The United States shall guarantee to every State in this Union a Republican
Form of Government, and shall protect each of them against Invasion; and on Application
of the Legislature, or of the Executive (when the Legislature cannot be convened) against
domestic Violence.
Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose
Amendments to this Constitution, or, on the Application of the Legislatures of two thirds
of the several States, shall call a Convention for proposing Amendments, which, in either
Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified
by the Legislatures of three fourths of the several States, or by Conventions in three
fourths thereof, as the one or the other Mode of Ratification may be proposed by the
Congress; provided that no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses
in the Ninth Section of the first Article; and that no State, without its Consent, shall be
deprived of its equal Suffrage in the Senate.
Article VI
All Debts contracted and Engagements entered into, before the Adoption of this
Constitution, shall be as valid against the United States under this Constitution, as under
the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several
State Legislatures, and all executive and judicial Officers, both of the United States and
of the several States, shall be bound by Oath or Affirmation, to support this Constitution;
but no religious Test shall ever be required as a Qualification to any Office or public
Trust under the United States.
Article VII
The Ratification of the Conventions of nine States, shall be sufficient for the
Establishment of this Constitution between the States so ratifying the Same.
Done in Convention by the Unanimous Consent of the States present the Seventeenth
Day of September in the Year of our Lord one thousand seven hundred and Eighty seven
and of the Independence of the United States of America the Twelfth. In witness thereof
We have hereunto subscribed our Names,
Articles in Addition to, and Amendment of, the Constitution of the United States of
America, Proposed by Congress, and Ratified by the Several States, Pursuant to the Fifth
Article of the Original Constitution.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.
Amendment II
A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.
Amendment III
No Soldier, in time of peace be quartered in any house, without the consent of the Owner,
nor in time of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
Amendment V
No Person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public danger; nor shall
any person be subject for the same offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial
by an impartial jury of the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the witness against him; to have
compulsory process for obtaining Witnesses in his favor, and to have the Assistance of
Counsel for his defence.
Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common
law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.
Amendment X
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 first ten
amendments were ratified Dec. 15, 1791.]
Amendment XI
The Judicial power of the United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State. [Jan. 8, 1798]
Amendment XII
The Electors shall meet in their respective states and vote by ballot for President and
Vice-President, one of whom, at least, shall not be an inhabitant of the same state with
themselves; they shall name in their ballots the person voted for as President, and in
distinct ballots the person voted for as Vice-President, and they shall make distinct lists
of all persons voted for as President, and of all persons voted for as Vice-President, and
of the number of votes for each, which lists they shall sign and certify, and transmit
sealed to the seat of the government of the United States, directed to the President of the
Senate; -- The President of the Senate shall, in the presence of the Senate and House of
Representatives, open all the certificates and the votes shall then be counted; -- The
person having the greatest number of votes for President, shall be the President, if such
number be a majority of the whole number of Electors appointed; and if no person have
such majority, then from the persons having the highest numbers not exceeding three on
the list of those voted for as President, the House of Representatives shall choose
immediately, by ballot, the President. But in choosing the President, the votes shall be
taken by states, the representation from each state having one vote; a quorum for this
purpose shall consist of a member or members from two-thirds of the states, and a
majority of all the states shall be necessary to a choice. And if the House of
Representatives shall not choose a President whenever the right of choice shall devolve
upon them, before the fourth day of March next following, then the Vice-President shall
act as President, as in the case of the death or other constitutional disability of the
President -- The person having the greatest number of votes as Vice-President, shall be
the Vice-President, if such number be a majority of the whole number of Electors
appointed, and if no person have a majority, then from the two highest numbers on the
list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of
two-thirds of the whole number of Senators, and a majority of the whole number shall be
necessary to a choice. But no person constitutionally ineligible to the office of President
shall be eligible to that of Vice-President of the United States. [Sept. 25, 1804]
Amendment XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the United States, or
any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
[Dec. 18, 1865]
Amendment XIV
Section 1. All persons born or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny any person within its jurisdiction the
equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to
their respective numbers, counting the whole number of persons in each State, excluding
Indians not taxed. But when the right to vote at any election for the choice of electors for
President and Vice President of the United States, Represen-tatives in Congress, the
Executive and Judicial officers of a State, or the members of the Legislature thereof, is
denied to any of the male inhabitants of such State, being twenty-one years of age, and
citizens of the United States, or in any way abridged, except for participation in rebellion,
or other crime, the basis of representation therein shall be reduced in the proportion
which the number of such male citizens shall bear to the whole number of male citizens
twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of
President and Vice President, or hold any office, civil or military, under the United States,
or under any State, who, having previously taken an oath, as a member of Congress, or as
an officer of the United States, or as a member of any State legislature, or as an executive
or judicial officer of any State, to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given aid or comfort to the
enemies thereof. But Congress may by a vote of two-thirds of each House, remove such
disability.
Section 4. The validity of the public debt of the United States, authorized by law,
including debts incurred for payment of pensions and bounties for services in suppressing
insurrection or rebellion, shall not be questioned. But neither the United States nor any
State shall assume or pay any debt or obligation incurred in aid of insurrection or
rebellion against the United States, or any claim for the loss or emancipation of any slave;
but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce by appropriate legislation, the
provisions of this article. [July 28, 1868]
Amendment XV
Section 1. The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or previous
condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
[March 30, 1870]
Amendment XVI
The Congress shall have power to lay and collect taxes on incomes, from whatever
source derived, without apportionment among the several States, and without regard to
any census or enumeration. [Feb. 25, 1913]
Amendment XVII
The Senate of the United States shall be composed of two Senators from each State,
elected by the people thereof, for six years; and each Senator shall have one vote. The
electors in each State shall have the qualifications requisite for electors of the most
numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive
authority of such State shall issue writs of election to fill such vacancies: Provided, That
the legislature of any State may empower the executive thereof to make temporary
appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator
chosen before it becomes valid as part of the Constitution. [May 31, 1913]
Amendment XVIII
Section 1. After one year from the ratification of this article the manufacture, sale, or
transportation of intoxicating liquors within, the importation thereof into, or the
exportation thereof from the United States and all territory subject to the jurisdiction
thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce
this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by the legislatures of the several States, as provided in the
Constitution, within seven years from the date of the submission hereof to the States by
the Congress. [Jan. 29, 1919]
Amendment XIX
The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation. [Aug. 26,
1920]
Amendment XX
Section 1. The terms of the President and Vice President shall end at noon on the 20th
day of January, and the terms of Senators and Representatives at noon on the 3d day of
January, of the years in which such terms would have ended if this article had not been
ratified; and the terms of their successors shall then begin.
Section 2. The Congress shall assemble at least once in every year, and such meeting
shall begin at noon on the 3d day of January, unless they shall by law appoint a different
day.
Section 3. If, at the time fixed for the beginning of the term of the President, the President
elect shall have died, the Vice President elect shall become President. If a President shall
not have been chosen before the time fixed for the beginning of his term, or if the
President elect shall have failed to qualify, then the Vice President elect shall act as
President until a President shall have qualified; and the Congress may by law provide for
the case wherein neither a President elect nor a Vice President elect shall have qualified,
declaring who shall then act as President, or the manner in which one who is to act shall
be selected, and such person shall act accordingly until a President or Vice President shall
have qualified.
Section 4. The Congress may by law provide for the case of the death of any of the
persons for whom the House of Representatives may choose a President whenever the
right of choice shall have devolved upon them, and for the case of the death of any of the
persons from whom the Senate may choose a Vice President whenever the right of choice
shall have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the
ratification of this article.
Section 6. This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by the legislatures of three-fourths of the several States
within seven years from the date of its submission. [Feb. 6, 1933]
Amendment XXI
Section 1. The eighteenth article of amendment to the Constitution of the United States is
hereby repealed.
Section 2. The transportation or importation into any State, Territory, or possession of the
United States for delivery or use therein of intoxicating liquors, in violation of the laws
thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by conventions in the several States, as provided in the
Constitution, within seven years from the date of the submission hereof to the States by
the Congress. [Dec. 5, 1933]
Amendment XXII
Section 1. No person shall be elected to the office of the President more than twice, and
no person who has held the office of President, or acted as President, for more than two
years of a term to which some other person was elected President shall be elected to the
office of the President more than once. But this Article shall not apply to any person
holding the office of President when this Article was proposed by the Congress, and shall
not prevent any person who may be holding the office of President, or acting as President,
during the term within which this Article becomes operative from holding the office of
President or actingas President during the remainder of such term.
Section 2. This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by the legislatures of three-fourths of the several States
within seven years from the date of its submission to the States by the Congress. [Feb. 27,
1951]
Amendment XXIII
Section 1. The District constituting the seat of Government of the United States shall
appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of
Senators and Representatives in Congress to which the District would be entitled if it
were a State, but in no event more than the least populous State; they shall be in addition
to those appointed by the States, but they shall be considered, for the purposes of the
election of President and Vice President, to be electors appointed by a State; and they
shall meet in the District and perform such duties as provided by the twelfth article of
amendment.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
[Mar. 29, 1961]
Amendment XXIV
Section 1. The right of citizens of the United States to vote in any primary or other
election for President or Vice President, for electors for President or Vice President, or
for Senator or Representative in Congress, shall not be denied or abridged by the United
States or any State by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
[Jan. 23, 1964]
Amendment XXV
Section 1. In case of the removal of the President from office or of his death or
resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President
shall nominate a Vice President who shall take office upon confirmation by a majority
vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro tempore of the Senate
and the Speaker of the House of Representatives his written declaration that he is unable
to discharge the powers and duties of his office, and until he transmits to them a written
declaration to the contrary, such powers and duties shall be discharged by the Vice
President as Acting President.
Section 4. Whenever the Vice President and a majority of either the principal officers of
the executive departments or of such other body as Congress may by law provide,
transmit to the President pro tempore of the Senate and the Speaker of the House of
Representatives their written declaration that the President is unable to discharge the
powers and duties of his office, the Vice President shall immediately assume the powers
and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and
the Speaker of the House of Representatives his written declaration that no inability
exists, he shall resume the powers and duties of his office unless the Vice President and a
majority of either the principal officers of the executive department or of such other body
as Congress may by law provide, transmit within four days to the President pro tempore
of the Senate and the Speaker of the House of Representatives their written declaration
that the President is unable to discharge the powers and duties of his office. Thereupon
Congress shall decide the issue, assembling within forty-eight hours for that purpose if
not in session. If the Congress, within twenty-one days after receipt of the latter written
declaration, or, if Congress is not in session, within twenty-one days after Congress is
required to assemble, determines by two-thirds vote of both Houses that the President is
unable to discharge the powers and duties of his office, the Vice President shall continue
to discharge the same as Acting President; otherwise, the President shall resume the
powers and duties of his office. [Feb. 10, 1967]
Amendment XXVI
Section 1. The right of citizens of the United States, who are eighteen years of age or
older, to vote shall not be denied or abridged by the United States or by any State on
account of age.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
[June 30, 1971]
Source: 1 United States Code Annotated 25 (1987).
The Federalist No.10 (1787)
James Madison
The drafting of the Constitution -- even by so distinguished a gathering as those who
participated in the Philadelphia convention -- did not ensure its adoption. In each state
there were groups and interests opposing as well as supporting ratification. And as they
had done in the years leading up to the Revolution, Americans took to their newspapers
to express their views and to argue the merits and faults of the proposed new scheme of
government.
Those who supported the Constitution took the name "Federalists," although it would
have been more accurate to have called them "Nationalists," since their main argument
centered on the need for a strong national government. Their opponents, known as the
"Anti-Federalists," were in fact, the more truly federalist of the two, since they argued for
a government based on a confederation of states. Because the Federalists won, history did
not treat their opponents kindly, and until recently the Anti-Federalists were treated, in
the words of one famous essay, as "men of little faith."
More recently, historians have re-examined the Anti-Federalist arguments, and
discovered that they raised significant issues, such as the lack of a Bill of Rights and
questions of limiting power so as to avoid tyranny. In fact, it was the Anti-Federalist
arguments against the Constitution, as much as the advantages that the Federalists saw in
the new scheme, that led the latter group to mount their own campaign to influence the
people in favor of ratification.
The best known arguments in the debate appeared in a series of eighty-five newspaper
essays published in New York and written by James Madison, Alexander Hamilton and
John Jay under the pseudonym of "Publius." These essays are considered the most
authoritative interpretation of the Constitution ever written, and even today are cited by
scholars and jurists in their efforts to understand the meaning of the document.
The most famous of the essays was "The Federalist No.10," written by James Madison, in
which he set forth the classic analysis of the republic. Opponents had argued that the
United States was too large, and had too many groups, or "factions," to be ruled
democratically by a single government. Madison acknowledged that there were in fact
many groups in the country, and he lamented that they often seemed to be at each other's
throats. Under classic constitutional theory, majoritarian rule should govern, and at the
expense of minority rights.
Madison argued that the republican remedy embodied in the Constitution allowed the
various factions sufficient room to express their views and to attempt to influence the
government. Instead of the majority putting down minorities, the different interests would
negotiate their differences, thus arriving at a solution in which the majority would rule
but with due care and regard given to minorities. The very number of factions would
preclude any one from exercising tyrannical control over the rest. And the medium in
which this give and take would occur would be politics, the art of governing.
For further reading: Gordon S. Wood, The Creation of the American Republic, 17761787 (1969); George Wills, Explaining America: The Federalist (1981); S. Rufus Davis,
The Federal Principle: A Journey through Time in Quest of Meaning (1978); Charles R.
Kesler, ed., Saving the Republic: The Federalist Papers and the American Founding
(1987); Herbert J. Storing, What the Anti-Federalists Were For (1981); and the classic
Douglas Adair, "The Tenth Federalist Revisited," William & Mary Quarterly 8 (1951):
48.
The Federalist No.10
Among the numerous advantages promised by a well constructed Union, nonedeserves 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;
but it would be an unwarrantable partiality, to contend that they have as effectually
obviated the danger on this side as was wished and expected. Complaints are every where
heard from our most considerate and virtuous citizens, usually the friends of public and
private faith, and of public and personal liberty; that our governments are too unstable;
that the public good is disregarded in the conflicts of rival parties; and that measures are
too often decided, not according to the rules of justice, and the rights of the minor party;
but by the superior force of an interested and over-bearing majority. However anxiously
we may wish that these complaints had no foundation, the evidence of known facts will
not permit us to deny that they are in some degree true. . . . These must be chiefly, if not
wholly, effects of the unsteadiness and injustice, with which a factious spirit has tainted
our public administrations.
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.
There are two methods of curing the mischiefs of faction: the one, by removing its causes;
the other, by controlling its effects.
There are again two methods of removing the causes of faction: the one by destroying the
liberty which is essential to its existence; the other, by giving to every citizen the same
opinions, the same passions, and the same interests.
It could never be more truly said than of the first remedy, that it is worse than the disease.
Liberty is to faction, what air is to fire, an ailment without which it instantly expires. But
it could not be a less folly to abolish liberty, which is essential to political life, because it
nourishes faction, than it would be to wish the annihilation of air, which is essential to
animal life, because it imparts to fire its destructive agency.
The second expedient is as impracticable, as the first would be unwise. 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 diversity in the faculties of
men from which the rights of property originate, is not less an insuperable obstacle to a
uniformity of interests. The protection of these faculties is the first object of Government.
From the protection of different and unequal faculties of acquiring property, the
possession of different degrees and kinds of property immediately results: and from the
influence of these on the sentiments and views of the respective proprietors, ensues a
division of the society into different interests and parties. . . .
The inference to which we are brought is, that the causes of faction cannot removed; and
that relief is only to be sought in the means of controlling its effects.
If a faction consists of less than a majority, relief is supplied by the republican principle,
which enables the majority to defeat its sinister views by regular vote: It may clog the
administration, it may convulse the society; but it will be unable to execute and mask its
violence under the forms of the Constitution. When a majority is included in a faction,
the form of popular government on the other hand 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 enquiries are directed: Let me add that it is the great desideratum, by which
alone this form of government can rescued from the opprobrium under which it has so
long labored, and be recommended to the esteem and adoption of mankind.
By what means is this object attainable? Evidently by one of two only. Either the
existence of the same passion or interest in a majority at the same time, must be
prevented; or the majority, having such co-existent passion or interest, must be rendered,
by their number and local situation, unable to concert and carry into effect schemes of
oppression. If the impulse and the opportunity be suffered to coincide, we well know that
neither moral nor religious motives can be relied on as an adequate control. They are not
found to be such on the injustice and violence of individuals, and lose their efficacy in
proportion to the number combined together; that is, in proportion as their efficacy
becomes needful.
From this view of the subject, it may be concluded, that a pure Democracy, by which I
mean, a Society, consisting of a small number of citizens, who assemble and administer
the Government in person, can admit of no cure for the mischiefs of faction. A common
passion or interest will, in almost every case, be felt by a majority of the whole; a
communication and concert results from the form of Government itself; and there is
nothing to check the inducements to sacrifice the weaker party, or an obnoxious
individual. Hence it is, that such Democracies have ever been spectacles of turbulence
and contention; have ever been found incompatible with personal security, or the rights of
property; and have in general been as short in their lives, as they have been violent in
their deaths. Theoretic politicians, who have patronized this species of Government, have
erroneously supposed, that by reducing mankind to a perfect equality in their political
rights, they would, at the same time, be perfectly equalized and assimilated in their
possessions, their opinions, and their passions.
A Republic, by which I mean a Government in which the scheme of representation takes
place, opens a different prospect, and promises the cure for which we are seeking. Let us
examine the points in which it varies from pure Democracy, and we shall comprehend
both the nature of the cure, and the efficacy which it must derive from the Union.
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 first difference is, on the one hand to refine and the public views, by
passing them through the medium of a chosen body of citizens, whose 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. Under such a regulation,
it may well happen that the public voice pronounced by the representatives of the people,
will be more consonant to the public good, than if pronounced by the people themselves
convened for the purpose. On the other hand, the effect may be inverted. Men of factious
tempers, of local prejudices, or of sinister designs, may by intrigue, by corruption or by
other means, first obtain the suffrages, and then betray the interests of the people. The
question resulting is, whether small or extensive Republics are most favorable to the
election of proper guardians of the public weal; and it is clearly decided in favor of the
latter by two obvious considerations.
In the first place it is to be remarked that however small the Republic may be, the
Representatives must be raised to a certain number, in order to guard against the cabals of
a few; and that however large it may be, they must be limited to a certain number, in
order to guard against the confusion of a multitude. Hence the number of Representatives
in the two cases, not being in proportion to that of the Constituents, and being
proportionally greatest in the small Republic, it follows, that if the proportion of fit
characters, be not less, in the large than in the small Republic, the former will present a
greater option, and consequently a greater probability of a fit choice.
In the next place, 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
practise 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.
It must be confessed, that in this, as in most other cases, there is a mean, on both sides of
which inconveniencies will be found to lie. By enlarging too much the number of electors,
you render the representative too little acquainted with all their local circumstances and
lesser interests; as by reducing it too much, you render him unduly attached to these, and
too little fit to comprehend and pursue great and national objects. The Federal
Constitution forms a happy combination in this respect; the great and aggregate interests
being referred to the national, the local and particular, to the state legislatures.
The other point of difference is, the greater number of citizens and extent of territory
which may be brought within the compass of Republican, than of Democratic
Government; and it is this circumstance principally which renders factious combinations
less to be dreaded in the former, than in the latter. The smaller the society, the fewer
probably will be the distinct parties and interests composing it; the fewer the distinct
parties and interests, the more frequently will a majority be found of the same party; and
the smaller the number of individuals composing a majority, and the smaller the compass
within which they are placed, the more easily will they concert and execute their plans of
oppression. Extend the sphere, and you take in a greater variety of parties and interests;
you make it less probable that a majority of the whole will have a common motive to
invade the rights of other citizens; or if such a common motive exists, it will be more
difficult for all who feel it to discover their own strength, and to act in unison with each
other. Besides other impediments, it may be remarked, that where there is a
consciousness of unjust or dishonorable purposes, a communication is always checked by
distrust, in proportion to the number whose concurrence is necessary. . . .
The influence of factious leaders may kindle a flame within their particular States, but
will be unable to spread a general conflagration through the other States: a religious sect,
may degenerate into a political faction in a part of the Confederacy; but the variety of
sects dispersed over the entire face of it, must secure the national Councils against any
danger from that source: a rage for paper money, for an abolition of debts, for an equal
division of property, or for any other improper or wicked project, will be less apt to
pervade the whole body of the Union, than a particular member of it; in the same
proportion as such a malady is more likely to taint a particular county or district, than an
entire State.
In the extent and proper structure of the Union, therefore, we behold a Republican
remedy for the diseases most incident to Republican Government. And according to the
degree of pleasure and pride, we feel in being Republicans, ought to be our zeal in
cherishing the spirit, and supporting the character of Federalists.
Publius
Source: Clinton Rossiter, ed., The Federalist Papers (1961), 77-84.
The Judiciary Act of 1789
One of the first acts of the new Congress was to establish a federal court system in the
Judiciary Act of 1789. The Constitution provided that the judicial branch should be
composed of one Supreme Court and such inferior courts as Congress from time to time
established. But unlike the legislative provisions, in which the framers clearly spelled out
the powers of the Congress, Article III of the Constitution is rather vague on just what the
judicial powers should be.
Congress had little precedent to guide it, since in the British system the three court
systems -- Common Pleas (private law), King's Bench (criminal law) and Chancery
(equity) -- operated independently, and derived their authority from the King's writ. Even
during colonial times, when American courts followed English precedent, the frontier
society had been too poor in resources and trained personnel to follow British practice.
So Congress had, in essence, a clean slate upon which to write. One of the more
imaginative steps was combining law and equity into a single court system, thus
providing for a more effective and efficient means of delivering justice.
The debate in Congress centered on how much power the Constitution transferred from
the states to the federal government. States' rights activists opposed giving the new courts
too much authority, while supporters argued that only a strong federal court system could
overcome the weaknesses that had been so apparent during the Confederation period.
Looking back, it is hard to envision how the supremacy of the Constitution provided for
in Article VI could possibly have been sustained without a strong federal court system,
one empowered to review and, if necessary, overturn state court decisions. Otherwise, the
country would have been saddled again with thirteen independent jurisdictions and no
means to conform them to a single national standard. "I have never been able to see,"
James Madison wrote in 1832 commenting on the federal courts, how "the Constitution
itself could have been the supreme law of the land; or that the uniformity of Federal
authority throughout the parts to it could be preserved; or that without the uniformity,
anarchy and disunion could be prevented."
The courts of the United States, as much as the legislative and executive branches, have
been instruments of democratic government, binding a diverse people together.
For further reading: D.F. Henderson, Courts for a New Nation (1971); Julius Goebel,
Antecedents and Beginnings to 1801 (1971); the first volume of the Holmes Devise,
History of the Supreme Court of the United States; and Maeva Marcus, ed., Origins of the
Federal Judiciary (1992).
The Judiciary Act of 1789
An Act to establish the Judicial Courts of the United States
Sec. 1. Be it enacted, That the supreme court of the United States shall consist of a chief
justice and five associate justices, any four of whom shall be a quorum, and shall hold
annually at the seat of government two sessions, the one commencing the first Monday of
February, and the other the first Monday of August. That the associate justices shall have
precedence according to the date of their commissions, or when the commissions of two
or more of them bear the same date on the same day, according to their respective ages.
Sec. 2. That the United States shall be, and they hereby are, divided into thirteen districts,
to be limited and called as follows, . . .
Sec. 3. That there be a court called a District Court in each of the aforementioned districts,
to consist of one judge, who shall reside in the district for which he is appointed, and
shall be called a District Judge, and shall hold annually four sessions, . . .
Sec. 4. That the beforementioned districts, except those of Maine and Kentucky, shall be
divided into three circuits, and be called the eastern, the middle, and the southern
circuit. . . . [T]hat there shall be held annually in each district of said circuits two courts
which shall be called Circuit Courts, and shall consist of any two justices of the Supreme
Court and the district judge of such districts, any two of whom shall constitute a quorum.
Provided, That no district judge shall give a vote in any case of appeal or error from his
own decision; but may assign the reasons of such his decision. . . .
Sec. 9. That the district courts shall have, exclusively of the courts of the several States,
cognizance of all crimes and offenses that shall be cognizable under the authority of the
United States, committed within their respective districts, or upon the high seas; where no
other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one
hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted;
and shall also have exclusive original cognizance of all civil cases of admiralty and
maritime jurisdiction, including all seizures under laws of impost, navigation, or trade of
the United States. . . . And shall also have cognizance, concurrent with the courts of the
several States, or the circuit courts, as the case may be, of all causes where an alien sues
for a tort only in violation of the law of nations or a treaty of the United States. And shall
also have cognizance, concurrent as last mentioned, of all suits at common law where the
United States sue, and the matter in dispute amounts, exclusive of costs, to the sum or
value of one hundred dollars. And shall also have jurisdiction exclusively of the courts of
the several States, of all suits against consuls or vice-consuls, except for offenses above
the description aforesaid. And the trial of issues in fact, in the district courts, in all cases
except civil causes of admiralty and maritime jurisdiction, shall be by jury. . . .
Sec 11. That the circuit courts shall have original cognizance, concurrent with the courts
of the several States, of all suits of a civil nature at common law or in equity, where the
matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars,
and the United States are plaintiffs or petitioners; or an alien is a party, or the suit is
between a citizen of the State where the suit is brought and a citizen of another State. And
shall have exclusive cognizance of all crimes and offenses cognizable under the authority
of the United States, except where this act otherwise provides, or the laws of the United
States shall otherwise direct, and concurrent jurisdiction with the district courts of the
crimes and offenses cognizable therein. . . . And the circuit courts shall also have
appellate jurisdiction from the district courts under the regulations and restrictions
herinafter provided. . . .
Sec. 13. That the Supreme Court shall have exclusive jurisdiction of all controversies of a
civil nature, where a state is a party, except between a state and its citizens; and except
also between a state and citizens of other states, or aliens, in which latter case it shall
have original but not exclusive jurisdiction. And shall have exclusively all such
jurisdiction of suits or proceedings against ambassadors or other public ministers, or their
domestics, or domestic servants, as a court of law can have or exercise consistently with
the law of nations; and original, but not exclusive jurisdiction of all suits brought by
ambassadors or other public ministers, or in which a consul or vice-consul shall be a
party. And the trial of issues in fact in the Supreme Court in all actions at law against
citizens of the United States shall be by jury. The Supreme Court shall also have
appellate jurisdiction from the circuit courts and courts of the several states in the cases
hereinafter specially provided for and shall have power to issue writs of prohibition to the
district courts, when proceeding as courts of admiralty and maritime jurisdiction, and
writs of mandamus, in cases warranted by the principle and usages of law, to any courts
appointed, or persons holding office under the authority of the United States. . . .
Sec. 25. That a final judgment or decree in any suit, in the highest court of law or equity
of a State in which a decision in the suit could be had, where is drawn in question the
validity of a treaty or statute of, or an authority exercised under, the United States, and
the decision is against their validity; or where is drawn in question the validity of a statute
of, or an authority exercised under, any State, on the ground of their being repugnant to
the constitution, treaties, or laws of the United States, and the decision is in favour of
such their validity, or where is drawn in question the construction of any clause of the
constitution, or of a treaty, or statute of, or commission held under, the United States, and
the decision is against the title, right, privilege, or exemption, specially set up or claimed
by either party, under such clause of the said Constitution, treaty, statute, or commission,
may be re-examined, and reversed or affirmed in the Supreme Court of the United States
upon a writ of error, the citation being signed by the chief justice, or judge or chancellor
of the court rendering or passing the judgment or decree complained of, or by a justice of
the Supreme Court of the United States, in the same manner and under the same
regulations, and the writ shall have the same effect as if the judgment or decree
complained of had been rendered or passed in a circuit court, and the proceedings upon
the reversal shall also be the same, except that the Supreme Court, instead of remanding
the cause for a final decision as before provided, may, at their discretion, if the cause
shall have been once remanded before, proceed to a final decision of the same, and award
execution. But no other error shall be assigned or regarded as a ground of reversal in any
such case as aforesaid, than such as appears on the face of the record, and immediately
respects the before-mentioned questions of validity or construction of the said
constitution, treaties, statutes, commissions, or authorities in dispute.
Source: U.S. Statutes at Large 1 (1789): 73.
Marbury v. Madison (1803)
Just as George Washington helped shape the actual form that the executive branch would
take, so the third chief justice, John Marshall, shaped the role that the courts would play.
Under the administrations of Washington and his successor, John Adams, only members
of the ruling Federalist Party were appointed to the bench, and under the terms of the
Constitution, they held office for life during "good behavior." Thus, when the opposing
Republicans won the election of 1800, the Jeffersonians found that while they controlled
the presidency and Congress, the Federalists still dominated the judiciary. One of the first
acts of the new administration was to repeal the Judiciary Act of 1800, which had created
a number of new judgeships. Although President Adams had attempted to fill the
vacancies prior to the end of his term, a number of commissions had not been delivered,
and one of the appointees, William Marbury, sued Secretary of State James Madison to
force him to deliver his commission as a justice of the peace.
The new chief justice, John Marshall, understood that if the Court awarded Marbury a
writ of mandamus (an order to force Madison to deliver the commission) the Jefferson
administration would ignore it, and thus significantly weaken the authority of the courts.
On the other hand, if the Court denied the writ, it might well appear that the justices had
acted out of fear. Either case would be a denial of the basic principle of the supremacy of
the law.
Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he
declared that Madison should have delivered the commission to Marbury, but then held
that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to
issue writs of mandamus exceeded the authority allotted the Court under Article III of the
Constitution, and was therefore null and void. Thus he was able to chastise the
Jeffersonians and yet not create a situation in which a court order would be flouted.
The critical importance of Marbury is the assumption of several powers by the Supreme
Court. One was the authority to declare acts of Congress, and by implication acts of the
president, unconstitutional if they exceeded the powers granted by the Constitution. But
even more important, the Court became the arbiter of the Constitution, the final authority
on what the document meant. As such, the Supreme Court became in fact as well as in
theory an equal partner in government, and it has played that role ever since.
The Court would not declare another act of Congress unconstitutional until 1857, and it
has used that power sparingly. But through its role as arbiter of the Constitution, it has,
especially in the twentieth century, been the chief agency for the expansion of individual
rights. (See Part V.)
For further reading: George L. Haskins and Herbert A. Johnson, Foundations of Power:
John Marshall, 1801-1815 (1981); Donald O. Dewey, Marshall v. Jefferson: The Political
Background of Marbury v. Madison (1970).
Marbury v. Madison
Chief Justice Marshall delivered the opinion of the Court.
At the last term on the affidavits then read and filed with the clerk, a rule was granted in
this case, requiring the Secretary of State to show cause why a mandamus should not
issue, directing him to deliver to William Marbury his commission as a justice of the
peace for the county of Washington, in the district of Columbia.
No cause has been shown, and the present motion is for a mandamus. The peculiar
delicacy of this case, the novelty of some of its circumstances, and the real difficulty
attending the points which occur in it, require a complete exposition of the principles on
which the opinion to be given by the court is founded. . . .
In the order in which the court has viewed this subject, the following questions have been
considered and decided:
1st. Has the applicant a right to the commission he demands?
2d. If he has a right, and that right has been violated, do the laws of his country afford
him a remedy?
3d. If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of inquiry is -- 1st. Has the applicant a right to the commission he
demands? . . .
It [is] decidedly the opinion of the court, that when a commission has been signed by the
president, the appointment is made; and that the commission is complete, when the seal
of the United States has been affixed to it by the secretary of state. . . .
To withhold his commission, therefore, is an act deemed by the court not warranted by
law, but violative of a vested legal right.
This brings us to the second inquiry; which is 2dly. If he has a right, and that right has
been violated, do the laws of his country afford him a remedy?
The very essence of civil liberty certainly consists in the right of every individual to
claim the protection of the laws, whenever he receives an injury. One of the first duties of
government is to afford that protection. [The] government of the United States has been
emphatically termed a government of laws, and not of men. It will certainly cease to
deserve this high appellation, if the laws furnish no remedy for the violation of a vested
legal right. . . .
By the constitution of the United States, the President is invested with certain important
political powers, in the exercise of which he is to use his own discretion, and is
accountable only to his country in his political character, and to his own conscience. To
aid him in the performance of these duties, he is authorized to appoint certain officers,
who act by his authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the
manner in which executive discretion may be used, still there exists, and can exist, no
power to control that discretion. The subjects are political. They respect the nation, not
individual rights, and being entrusted to the executive, the decision of the executive is
conclusive. . . .
But when the legislature proceeds to impose on that officer other duties; when he is
directed peremptorily to perform certain acts; when the rights of individuals are
dependent on the performance of those acts; he is so far the officer of the law; is
amenable to the laws for his conduct; and cannot at his discretion sport away the vested
rights of others.
The conclusion from this reasoning is, that where the heads of departments are the
political or confidential agents of the executive, merely to execute the will of the
President, or rather to act in cases in which the executive possesses a constitutional or
legal discretion, nothing can be more perfectly clear than that their acts are only
politically examinable. But where a specific duty is assigned by law, and individual rights
depend upon the performance of that duty, it seems equally clear, that the individual who
considers himself injured, has a right to resort to the laws of his country for a remedy. . . .
It is, then, the opinion of the Court [that Marbury has a] right to the commission; a refusal
to deliver which is a plain violation of that right, for which the laws of his country afford
him a remedy.
It remains to be enquired whether,
3dly. He is entitled to the remedy for which he applies. This depends on -- 1st. The nature
of the writ applied for, and,
2dly. The power of this court.
1st. The nature of the writ. . . .
This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of
it from the record; and it only remains to be enquired,
Whether it can issue from this court.
The act to establish the judicial courts of the United States authorizes the Supreme Court
"to issue writs of mandamus in cases warranted by the principles and usages of law, to
any courts appointed, or persons holding office, under the authority of the United States."
The Secretary of State, being a person holding an office under the authority of the United
States, is precisely within the letter of the description; and if this court is not authorized
to issue a writ of mandamus to such an officer, it must be because the law is
unconstitutional, and therefore incapable of conferring the authority, and assigning the
duties which its words purport to confer and assign.
The constitution vests the whole judicial power of the United States in one Supreme
Court, and such inferior courts as congress shall, from time to time, ordain and establish.
This power is expressly extended to all cases arising under the laws of the United States;
and, consequently, in some form, may be exercised over the present case; because the
right claimed is given by a law of the United States.
In the distribution of this power it is declared that "the Supreme Court shall have original
jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and
those in which a state shall be a party. In all other cases, the Supreme Court shall have
appellate jurisdiction."
It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme
and inferior courts, is general, and the clause, assigning original jurisdiction to the
Supreme Court, contains no negative or restrictive words, the power remains to the
legislature, to assign original jurisdiction to that court in other cases than those specified
in the article which has been recited; provided those cases belong to the judicial power of
the United States.
If it had been intended to leave it in the discretion of the legislature to apportion the
judicial power between the supreme and inferior courts according to the will of that body,
it would certainly have been useless to have proceeded further than to have defined the
judicial power, and the tribunals in which it should be vested. The subsequent part of the
section is mere surplusage, is entirely without meaning, if such is to be the construction.
If congress remains at liberty to give this court appellate jurisdiction, where the
constitution has declared their jurisdiction shall be original; and original jurisdiction
where the constitution has declared it shall be appellate; the distribution of jurisdiction,
made in the constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than those
affirmed; and in this case, a negative or exclusive sense must be given to them or they
have no operation at all.
It cannot be presumed that any clause in the constitution is intended to be without effect;
and, therefore, such a construction is inadmissible, unless the words require it.
If the solicitude of the convention, respecting our peace with foreign powers, induced a
provision that the supreme court should take original jurisdiction in cases which might be
supposed to affect them; yet the clause would have proceeded no further than to provide
for such cases, if no further restriction on the powers of congress had been intended. That
they should have appellate jurisdiction in all other cases, with such exceptions as
congress might make, is no restriction; unless the words be deemed exclusive of original
jurisdiction.
When an instrument organizing fundamentally a judicial system, divides it into one
supreme, and so many inferior courts as the legislature may ordain and establish; then
enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction
of the supreme court by declaring the cases in which it shall take original jurisdiction, and
that in others it shall take appellate jurisdiction; the plain import of the words seems to be,
that in one class of cases its jurisdiction is original, and not appellate; in the other it is
appellate, and not original. If any other construction would render the clause inoperative,
that is an additional reason for rejecting such other construction, and for adhering to their
obvious meaning.
To enable this court, then, to issue a mandamus, it must be shown to be an exercise of
appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of
forms, and that if it be the will of the legislature that a mandamus should be used for that
purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not
original.
It is the essential criterion of appellate jurisdiction, that it revises and corrects the
proceedings in a cause already instituted, and does not create that cause. Although,
therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for
the delivery of a paper, is in effect the same as to sustain an original action for that paper,
and, therefore, seems not to belong to appellate, but to original jurisdiction. Neither is it
necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.
The authority, therefore, given to the Supreme Court, by the act establishing the judicial
courts of the United States, to issue writs of mandamus to public officers, appears not to
be warranted by the constitution; and it becomes necessary to enquire whether a
jurisdiction, so conferred, can be exercised.
The question, whether an act, repugnant to the constitution, can become the law of the
land, is a question deeply interesting to the United States; but happily, not of an intricacy
proportioned to its interest. It seems only necessary to recognize certain principles,
supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their future govern-ment, such
principles as, in their opinion, shall most conduce to their own happiness, is the basis on
which the whole American fabric has been erected. The exercise of this original right is a
very great exertion; nor can it, nor ought it, to be frequently repeated. The principles,
therefore, so established, are deemed fundamental. And as the authority from which they
proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different
departments their respective powers. It may either stop here, or establish certain limits
not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the
legislature are defined and limited; and that those limits may not be mistaken, or
forgotten, the constitution is written. 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? The distinction between a government with limited
and unlimited powers is abolished, if those limits do not confine the persons on whom
they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a
proposition too plain to be contested, that the constitution controls any legislative act
repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior,
paramount law, unchangeable by ordinary means, or it is on a level with ordinary
legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the
constitution is not law: if the latter part be true, then written constitutions are absurd
attempts, on the part of the people, to limit a power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming
the fundamental and paramount law of the nation, and consequently, the theory of every
such government must be, that an act of the legislature, repugnant to the constitution, is
void.
This theory is essentially attached to a written constitution, and is, conse-quently, to be
considered, by this court, as one of the fundamental principles of our society. It is not
therefore to be lost sight of in the further consideration of this subject.
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding
its invalidity, bind the courts, and oblige them to give it effect? Or, in other words,
though it be not law, does it constitute a rule as operative as if it was a law? This would
be to overthrow in fact what was established in theory; and would seem, at first view, an
absurdity too gross to be insisted on. It shall, however, receive a more attentive
consideration.
It is emphatically the province and duty of the judicial department to say what the law is.
Those who apply the rule to particular cases, must of necessity expound and interpret that
rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply
to a particular case, so that the court must either decide that case conformably to the law,
disregarding the constitution; or conformably to the constitution, disregarding the law;
the court must determine which of these conflicting rules governs the case. This is of the
very essence of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is superior to any
ordinary act of the legislature, the constitution, and not such ordinary act, must govern
the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered, in court,
as a paramount law, are reduced to the necessity of maintaining that the courts must close
their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would
declare that an act which, according to the principles and theory of our government, is
entirely void, is yet, in practice, completely obligatory. It would declare that if the
legislature shall do what is expressly forbidden, such act, notwithstanding the express
prohibition, is in reality effectual. It would be giving to the legislature a practical and real
omnipotence, with the same breath which professes to restrict their powers within narrow
limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on
political institutions -- a written constitution -- would of itself be sufficient, in America,
where written constitutions have been viewed with so much reverence, for rejecting the
construction. But the peculiar expressions of the constitution of the United States furnish
additional arguments in favour of its rejection.
The judicial power of the United States is extended to all cases arising under the
constitution.
Could it be the intention of those who gave this power, to say that in using it the
constitution should not be looked into? That a case arising under the constitution should
be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases, then, the constitution must be looked into by the judges. And if they can
open it at all, what part of it are they forbidden to read or to oey?
There are many other parts of the constitution which serve to illustrate this subject.
It is declared that "no tax or duty shall be laid on articles exported from any state."
Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to
recover it. Ought judgment to be rendered in such a case? Ought the judges to close their
eyes on the constitution, and only see the law?
The constitution declares that "no bill of attainder or ex post facto law shall be passed." If,
however, such a bill should be passed, and a person should be prosecuted under it; must
the court condemn to death those victims whom the constitution endeavors to preserve?
"No person," says the constitution, "shall be convicted of treason unless on the testimony
of two witnesses to the same overt act, or on confession in open court."
Here the language of the constitution is addressed especially to the courts. It prescribes,
directly for them, a rule of evidence not to be departed from. If the legislature should
change that rule, and declare one witness, or a confession out of court, sufficient for
conviction, must the constitutional principle yield to the legislative act?
From these, and many other selections which might be made, it is apparent, that the
framers of the constitution contemplated that instrument as a rule for the government of
courts, as well as of the legislature. Why otherwise does it direct the judges to take an
oath to support it? This oath certainly applies, in an especial manner, to their conduct in
their official character. How immoral to impose it on them, if they were to be used as the
instruments, and the knowing instruments, for violating what they swear to support!
The oath of office, too, imposed by the legislature, is completely demonstrative of the
legislative opinion on this subject. It is in these words: "I do solemnly swear that I will
administer justice without respect to persons, and do equal right to the poor and to the
rich; and that I will faithfully and impartially discharge all the duties incumbent on me as
_____, according to the best of my abilities and understanding, agreeably to the
constitution, and laws of the United States." Why does a Judge swear to discharge his
duties agreeably the constitution of the United States, if that constitution forms no rule
for his government? If it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to
take this oath, becomes equally a crime.
It is also not entirely unworthy of observation that in declaring what shall be the supreme
law of the land, the constitution itself is first mentioned; and not the laws of the United
States generally, but those only which shall be made in pursuance of the constitution,
have that rank.
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.
The rule must be discharged.
Source: 1 Cranch 137 (1803).
McCulloch v. Maryland (1819)
In many ways, the opinion in this case represents a final step in the creation of the federal
government. The issue involved, the power of Congress to charter a bank, seems
insignificant, but the larger questions go to the very heart of constitutional interpretation,
and are still debated today.
In 1791, as part of his financial plan, Secretary of the Treasury Alexander Hamilton
proposed that Congress charter a Bank of the United States, to serve as a central bank for
the country. Secretary of State Thomas Jefferson opposed the notion, on the grounds that
the Constitution did not specifically give Congress such a power, and that under a limited
government, Congress had no powers other than those explicitly given to it. Hamilton
responded by arguing that Congress had all powers except those specifically denied to it
in the Constitution, and that moreover, the "necessary and proper" clause of Article I
required a broad reading of the designated powers. President Washington backed
Hamilton, and the bank was given a twenty-year charter. The charter expired in 1811, and
the Jeffersonians had not renewed it.
Then came the War of 1812, and President Madison realized that the government needed
the services of a central bank. In 1816, at his recommendation, Congress chartered a
second Bank of the United States (BUS), which quickly established branches throughout
the Union. Many local, state-chartered banks, eager to follow speculative policies,
resented the cautious fiscal policy of the BUS, and looked to state legislatures to restrict
the BUS operations. Maryland imposed a tax on the bank's operations, and when James
McCulloch, the cashier of the Baltimore branch of the BUS, refused to pay the tax, the
issue went to Court.
Few people expected the Court to hold the charter establishing the bank unconstitutional;
what was at issue was the extent of state power vis-à-vis federal authority. In
what has justly been termed a state paper, Chief Justice Marshall not only endorsed the
constitutionality of the bank, but went on to uphold a broad interpretation of the federal
government's powers under the Constitution, and thus pave the way for the modern
national state that would emerge after the Civil War. Although there have been some
people who have disagreed and continue to disagree with the Marshall opinion, it has for
the most part won the approval not only of subsequent courts but of the American people
as well.
For further reading: Bray Hammond, Banks and Politics in America -- From the
Revolution to the Civil War (1957); G. Edward White, The Marshall Court and Cultural
Change, 1815-1835 (1988); Gerald Gunther, ed., John Marshall's Defense of McCulloch
v. Maryland (1969); Samuel J. Konefsky, John Marshall and Alexander Hamilton:
Architects of the Constitution (1964).
McCulloch v. Maryland
Chief Justice Marshall delivered the opinion of the Court.
In the case now to be determined, the defendant, a sovereign State, denies the obligation
of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the
validity of an act which has been passed by the legislature of that State. The constitution
of our country, in its most interesting and vital parts, is to be considered; the conflicting
powers of the government of the Union and of its members, as marked in that constitution,
are to be discussed; and an opinion given, which may essentially influence the great
operations of the government. No tribunal can approach such a question without a deep
sense of its importance, and of the awful responsibility involved in its decision. But it
must be decided peacefully, or remain a source of hostile legislation, perhaps of hostility
of a still more serious nature; and if it is to be so decided, by this tribunal alone can the
decision be made. On the Supreme Court of the United States has the constitution of our
country devolved this important duty.
The first question made in the cause is, has Congress power to incorporate a bank?
It has been truly said that this can scarcely be considered as an open question, entirely
unprejudiced by the former proceedings of the nation respecting it. The principle now
contested was introduced at a very early period of our history, has been recognized by
many successive legislatures, and has been acted upon by the judicial department, in
cases of peculiar delicacy, as a law of undoubted obligation. . . .
The power now contested was exercised by the first Congress elected under the present
constitution. The bill for incorporating the bank of the United States did not steal upon an
unsuspecting legislature, and pass unobserved. Its principle was completely understood,
and was opposed with equal zeal and ability. After being resisted, first in the fair and
open field of debate, and afterwards in the executive cabinet, with as much persevering
talent as any measure has ever experienced, and being supported by arguments which
convinced minds as pure and as intelligent as this country can boast, it became a law. The
original act was permitted to expire; but a short experience of the embarrassments to
which the refusal to revive it exposed the government, convinced those who were most
prejudiced against the measure of its necessity, and induced the passage of the present
law. It would require no ordinary share of intrepidity to assert that a measure adopted
under these circumstances was a bold and plain usurpation, to which the constitution gave
no countenance.
These observations belong to the cause; but they are not made under the impression that,
were the question entirely new, the law would be found irreconcilable with the
constitution.
In discussing this question, the counsel for the State of Maryland have deemed it of some
importance, in the construction of the constitution, to consider that instrument not as
emanating from the people, but as the act of sovereign and independent States. The
powers of the general government, it has been said, are delegated by the States, who
alone are truly sovereign; and must be exercised in subordination to the States, who alone
possess supreme dominion.
It would be difficult to sustain this proposition. The Convention which framed the
constitution was indeed elected by the State legislatures. But the instrument, when it
came from their hands, was a mere proposal, without obligation, or pretensions to it. It
was reported to the then existing Congress of the United States, with a request that it
might "be submitted to a convention of delegates, chosen in each State by the people
thereof, under the recommendation of its legislature, for their assent and ratification."
This mode of proceeding was adopted; and by the convention, by Congress, and by the
State legislatures, the instrument was submitted to the people. They acted upon it in the
only manner in which they can act safely, effectively, and wisely, on such a subject, by
assembling in convention. It is true, they assembled in their several States -- and where
else should they have assembled? No political dreamer was ever wild enough to think of
breaking down the lines which separate the States, and of compounding the American
people into one common mass. Of consequence, when they act, they act in their States.
But the measures they adopt do not, on that account, cease to be the measures of the
people themselves, or become the measures of the State governments.
From these conventions the constitution derives its whole authority. The government
proceeds directly from the people; is "ordained and established" in the name of the people;
and is declared to be ordained, "in order to form a more perfect union, establish justice,
ensure domestic tranquility, and secure the blessings of liberty to themselves and to their
posterity." The assent of the States, in their sovereign capacity, is implied in calling a
convention, and thus submitting that instrument to the people. But the people were at
perfect liberty to accept or reject it; and their act was final. It required not the affirmance,
and could not be negatived, by the State governments. The constitution, when thus
adopted, was of complete obligation, and bound the State sovereignties. . . .
of this fact on the case), is, emphatically, and truly, a government of the people. In form
and in substance it emanates from them. Its powers are granted by them, and are to be
exercised directly on them, and for their benefit.
This government is acknowledged by all to be one of enumerated powers. The principle,
that it can exercise only the powers granted to it, [is] now universally admitted. But the
question respecting the extent of the powers actually granted, is perpetually arising, and
will probably continue to arise, as long as our system shall exist. . . .
Among the enumerated powers, we do not find that of establishing a bank or creating a
corporation. But there is no phrase in the instrument which, like the articles of
confederation, excludes incidental or implied powers; and which requires that everything
granted shall be expressly and minutely described. Even the 10th amendment, which was
framed for the purpose of quieting the excessive jealousies which had been excited, omits
the word "expressly," and declares only that the powers "not delegated to the United
States, nor prohibited to the States, are reserved to the States or to the people"; thus
leaving the question, whether the particular power which may become the subject of
contest has been delegated to the one government, or prohibited to the other, to depend
on a fair construction of the whole instrument. The men who drew and adopted this
amendment had experienced the embarrassments resulting from the insertion of this word
in the articles of confederation, and probably omitted it to avoid those embarrassments. A
constitution, to contain an accurate detail of all the subdivisions of which its great powers
will admit, and of all the means by which they may be carried into execution, would
partake of the prolixity of a legal code, and could scarcely be embraced by the human
mind. It would probably never be understood by the public. Its nature, therefore, requires,
that only its great outlines should be marked, its important objects designated, and the
minor ingredients which compose those objects be deduced from the nature of the objects
themselves. That this idea was entertained by the framers of the American constitution, is
not only to be inferred from the nature of the instrument, but from the language. Why else
were some of the limitations, found in the ninth section of the 1st article, introduced? It is
also, in some degree, warranted by their having omitted to use any restrictive term which
might prevent its receiving a fair and just interpretation. In considering this question, then,
we must never forget that it is a constitution we are expounding.
Although, among the enumerated powers of government, we do not find the word "bank,"
or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to
regulate commerce; to declare and conduct a war; and to raise and support armies and
navies. The sword and the purse, all the external relations, and no inconsiderable portion
of the industry of the nation, are entrusted to its government. It can never be pretended
that these vast powers draw after them others of inferior importance, merely because they
are inferior. Such an idea can never be advanced. But it may with great reason be
contended, that a government, entrusted with such ample powers, on the due execution of
which the happiness and prosperity of the nation so vitally depends, must also be
entrusted with ample means for their execution. The power being given, it is the interest
of the nation to facilitate its execution. It can never be their interest, and cannot be
presumed to have been their intention, to clog and embarrass its execution by withholding
the most appropriate means. . . require it) which would impute to the framers of that
instrument, when granting these powers for the public good, the intention of impeding
their exercise by withholding a choice of means? If, indeed, such be the mandate of the
constitution, we have only to obey; but that instrument does not profess to enumerate the
means by which the powers it confers may be executed; nor does it prohibit the creation
of a corporation, if the existence of such a being be essential to the beneficial exercise of
those powers. It is, then, the subject of fair inquiry, how far such means may be employed.
It is not denied, that the powers given to the government imply the ordinary means of
execution. That, for example, of raising revenue, and applying it to national purposes, is
admitted to imply the power of conveying money from place to place, as the exigencies
of the nation may require, and of employing the usual means of conveyance. But it is
denied that the government has its choice of means; or, that it may employ the most
convenient means, if, to employ them, it be necessary to erect a corporation. . . .
The government which has a right to do an act, and has imposed on it the duty of
performing that act, must, according to the dictates of reason, be allowed to select the
means; and those who contend that it may not select any appropriate means, that one
particular mode of effecting the object is excepted, take upon themselves the burden of
establishing that exception. . . . The power of creating a corporation, though appertaining
to sovereignty, is not like the power of making war, or levying taxes, or of regulating
commerce, a great substantive and independent power, which cannot be implied as
incidental to other powers, or used as a means of executing them. It is never the end for
which other powers are exercised, but a means by which other objects are
accomplished. . . . The power of creating a corporation is never used for its own sake, but
for the purpose of effecting something else. No sufficient reason is, therefore, perceived,
why it may not pass as incidental to those powers which are expressly given, if it be a
direct mode of executing them.
But the constitution of the United States has not left the right of Congress to employ the
necessary means, for the execution of the powers conferred on the government, to general
reasoning. To its enumeration of powers is added that of making "all laws which shall be
necessary and proper for carrying into execution the foregoing powers, and all other
powers vested by this constitution, in the government of the United States, or in any
department thereof."
The counsel for the State of Maryland have urged various arguments, to prove that this
clause, though in terms a grant of power, is not so in effect; but is really restrictive of the
general right, which might otherwise be implied, of selecting means for executing the
enumerated powers. . . .
Almost all compositions contain words, which, taken in their rigorous sense, would
convey a meaning different from that which is obviously intended. It is essential to just
construction, that many words which import something excessive should be understood
in a more mitigated sense -- in that sense which common usage justifies. The word
"necessary" is of this description. It has not a fixed character peculiar to itself. It admits
of all degrees of comparison; and is often connected with other words, which increase or
diminish the impression the mind receives of the urgency it imports. A thing may be
necessary, very necessary, absolutely or indispensably necessary. To no mind would the
same idea be conveyed by these several phrases. This comment on the word is well
illustrated by the passage cited at the bar, from the 20th section of the 1st article of the
constitution. It is, we think, impossible to compare the sentence which prohibits a State
from laying "imposts, or duties on imports or exports, except what may be absolutely
necessary for executing its inspection laws," with that which authorizes Congress "to
make all laws which shall be necessary and proper for carrying into execution" the
powers of the general government, without feeling a conviction that the convention
understood itself to change materially the meaning of the word "necessary," by prefixing
the word "absolutely." This word, then, like others, is used in various senses; and, in its
construction, the subject, the context, the intention of the person using them, are all to be
taken into view.
Let this be done in the case under consideration. The subject is the execution of those
great powers on which the welfare of a nation essentially depends. It must have been the
intention of those who gave these powers, to insure, as far as human prudence could
insure, their beneficial execution. This could not be done by confiding the choice of
means to such narrow limits as not to leave it in the power of Congress to adopt any
which might be appropriate, and which were conducive to the end. This provision is
made in a constitution intended to endure for ages to come, and, consequently, to be
adapted to the various crises of human affairs. To have prescribed the means by which
government should, in all future time, execute its powers, would have been to change,
entirely, the character of the instrument, and give it the properties of a legal code. It
would have been an unwise attempt to provide, by immutable rules, for exigencies which,
if foreseen at all, must have been seen dimly, and which can be best provided for as they
occur. To have declared that the best means shall not be used, but those alone without
which the power given would be nugatory, would have been to deprive the legislature of
the capacity to avail itself of experience, to exercise its reason, and to accommodate its
legislation to circumstances. If we apply this principle of construction to any of the
powers of the government, we shall find it so pernicious in its operation that we shall be
compelled to discard it. . . .
The result of the most careful and attentive consideration bestowed upon this clause is,
that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to
impair the rights of the legislature to exercise its best judgment in the selection of
measures to carry into execution the constitutional powers of the government. If no other
motive for its insertion can be suggested, a sufficient one is found in the desire to remove
all doubts respecting the right to legislate on that vast mass of incidental powers which
must be involved in the constitution, if that instrument be not a splendid bauble.
We admit, as all must admit, that the powers of the government are limited, and that its
limits are not to be transcended. But we think the sound construction of the constitution
must allow to the national legislature that discretion, with respect to the means by which
the powers it confers are to be carried into execution, which will enable that body to
perform the high duties assigned to it, in the manner most beneficial to the people. Let the
end be legitimate, let it be within the scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are constitutional. . . .
Should Congress, in the execution of its powers, adopt measures which are prohibited by
the constitution; or should Congress, under the pretext of executing its powers, pass laws
for the accomplishment of objects not entrusted to the government; it would become the
painful duty of this tribunal, should a case requiring such a decision come before it, to say
that such an act was not the law of the land. But where the law is not prohibited, and is
really calculated to effect any of the objects entrusted to the government, to undertake
here to inquire into the degree of its necessity, would be to pass the line which
circumscribes the judicial department, and to tread on legislative ground. This court
disclaims all pretensions to such a power.
After this declaration, it can scarcely be necessary to say that the existence of State banks
can have no possible influence on the question. No trace is to be found in the constitution
of an intention to create a dependence of the government of the Union on those of the
States, for the execution of the great powers assigned to it. Its means are adequate to its
ends; and on those means alone was it expected to rely for the accomplishment of its ends.
To impose on it the necessity of resorting to means which it cannot control, which
another government may furnish or withhold, would render its course precarious, the
result of its measures uncertain, and create a dependence on other governments, which
might disappoint its most important designs, and is incompatible with the language of the
constitution. But were it otherwise, the choice of means implies a right to choose a
national bank in preference to State banks, and Congress alone can make the election.
After the most deliberate consideration, it is the unanimous and decided opinion of this
Court, that the act to incorporate the Bank of the United States is a law made in
pursuance of the constitution, and is a part of the supreme law of the land. . . .
It being the opinion of the Court, that the act incorporating the bank is constitutional; and
that the power of establishing a branch in the State of Maryland might be properly
exercised by the bank itself, we proceed to inquire -2. Whether the State of Maryland may, without violating the constitution, tax that branch?
That the power of taxation is one of vital importance; that it is retained by the States; that
it is not abridged by the grant of a similar power to the government of the Union; that it is
to be concurrently exercised by the two governments: are truths which have never been
denied. But, such is the paramount character of the constitution, that its capacity to
withdraw any subject from the action of even this power, is admitted. The States are
expressly forbidden to lay any duties on imports or exports, except what may be
absolutely necessary for executing their inspection laws. If the obligation of this
prohibition must be conceded, the same paramount character would seem to restrain, as it
certainly may restrain, a State from such other exercise of this power; as is in its nature
incompatible with, and repugnant to, the constitutional laws of the Union. . . .
On this ground the counsel for the bank place its claim to be exempted from the power of
a State to tax its operations. There is no express provision for the case, but the claim has
been sustained on a principle which so entirely pervades the constitution, is so intermixed
with the materials which compose it, so interwoven with its web, so blended with its
texture, as to be incapable of being separated from it, without rending it into shreds.
This great principle is, that the constitution and the laws made in pursuance thereof are
supreme; that they control the constitution and laws of the respective States, and cannot
be controlled by them. From this, which may be almost termed an axiom, other
propositions are deduced as corollaries, on the truth or error of which, and on their
application to this case, the cause has been supposed to depend. These are, 1st. that a
power to create implies a power to preserve. 2nd. That a power to destroy, if wielded by a
different hand, is hostile to, and incompatible with these powers to create and to preserve.
3d. That where this repugnancy exists, that authority which is supreme must control, not
yield to that over which it is supreme. . . .
That the power of taxing by the States may be exercised so as to destroy it, is too obvious
to be denied. But taxation is said to be an absolute power, which acknowledges no other
limits than those expressly prescribed in the constitution, and like sovereign power of
every other description, is trusted to the discretion of those who use it. But the very terms
of this argument admit that the sovereignty of the State, in the article of taxation itself, is
subordinate to, and may be controlled by, the constitution of the United States. How far it
has been controlled by that instrument must be a question of construction. In making this
construction, no principle not declared, can be admissible, which would defeat the
legitimate operations of a supreme government. It is of the very essence of supremacy to
remove all obstacles to its action within its own sphere, and so to modify every power
vested in subordinate governments, as to exempt its own operations from their own
influence. This effect need not be stated in terms. It is so involved in the declaration of
supremacy, so necessarily implied in it, that the expression of it could not make it more
certain. We must, therefore, keep it in view while construing the constitution.
The argument on the part of the State of Maryland is, not that the States may directly
resist a law of Congress, but that they may exercise their acknowledged powers upon it,
and that the constitution leaves them this right in the confidence that they will not abuse it.
Before we proceed to examine this argument, and to subject it to the test of the
constitution, we must be permitted to bestow a few considerations on the nature and
extent of this original right of taxation, which is acknowledged to remain with the States.
It is admitted that the power of taxing the people and their property is essential to the
very existence of government, and may be legitimately exercised on the objects to which
it is applicable, to the utmost extent to which the government may choose to carry it. The
only security against the abuse of this power, is found in the structure of the government
itself. In imposing a tax the legislature acts upon its constituents. . . .
The sovereignty of a State extends to everything which exists by its own authority, or is
so introduced by its permission; but does it extend to those means which are employed by
Congress to carry into execution powers conferred on that body by the people of the
United States? We think it demonstrable that it does not. Those powers are not given by
the people of a single State. They are given by the people of the United States, to a
government whose laws, made in pursuance of the constitution, are declared to be
supreme. Consequently, the people of a single State cannot confer a sovereignty which
will extend over them.
If we measure the power of taxation residing in a State, by the extent of sovereignty
which the people of a single State possess, and can confer on its government, we have an
intelligible standard, applicable to every case to which the power may be applied. We
have a principle which leaves the power of taxing the people and property of a State
unimpaired; which leaves to a State the command of all its resources, and which places
beyond its reach, all those powers which are conferred by the people of the United States
on the government of the Union, and all those means which are given for the purpose of
carrying those powers into execution. We have a principle which is safe for the States,
and safe for the Union. We are relieved, as we ought to be, from clashing sovereignty;
from interfering powers; from a repugnancy between a right in one government to pull
down what there is an acknowledged right in another to build up; from the
incompatibility of a right in one government to destroy what there is a right in another to
preserve. We are not driven to the perplexing inquiry, so unfit for the judicial department,
what degree of taxation is the legitimate use, and what degree may amount to the abuse
of the power. The attempt to use it on the means employed by the government of the
Union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a
power which the people of a single State cannot give.
We find, then, on just theory, a total failure of this original right to tax the means
employed by the government of the Union, for the execution of its powers. The right
never existed, and the question whether it has been surrendered, cannot arise.
But, waiving this theory for the present, let us resume the inquiry, whether this power can
be exercised by the respective States, consistently with a fair construction of the
constitution?
That the power to tax involves the power to destroy; that the power to destroy may defeat
and render useless the power to create; that there is a plain repugnance, in conferring on
one government a power to control the constitutional measures of another, which other,
with respect to those very measures, is declared to be supreme over that which exerts the
control, are propositions not to be denied. But all inconsistencies are to be reconciled by
the magic of the word CONFIDENCE. Taxation, it is said, does not necessarily and
unavoidably destroy. To carry it to the excess of destruction would be an abuse, to
presume which, would banish that confidence which is essential to all government.
But is this a case of confidence? Would the people of any one State trust those of another
with a power to control the most insignificant operations of their State government? We
know they would not. Why, then, should we suppose that the people of any one State
should be willing to trust those of another with a power to control the operations of a
government to which they have confided their most important and most valuable interests?
In the legislature of the Union alone, are all represented. The legislature of the Union
alone, therefore, can be trusted by the people with the power of controlling measures
which concern all, in the confidence that it will not be abused. This, then, is not a case of
confidence, and we must consider it as it really is.
If we apply the principle for which the State of Maryland contends, to the constitution
generally, we shall find it capable of changing totally the character of that instrument. We
shall find it capable of arresting all the measures of the government, and of prostrating it
at the foot of the States. The American people have declared their constitution, and the
laws made in pursuance thereof, to be supreme; but this principle would transfer the
supremacy, in fact, to the States.
If the States may tax one instrument, employed by the government in the execution of its
powers, they may tax any and every other instrument. They may tax the mail; they may
tax the mint; they may tax patent rights; they may tax the papers of the custom-house;
they may tax judicial process; they may tax all the means employed by the government,
to an excess which would defeat all the ends of government. This was not intended by the
American people. They did not design to make their government dependent on the
States. . . .
The Court has bestowed on this subject its most deliberate consideration. The result is a
conviction that the States have no power, by taxation or otherwise, to retard, impede,
burden, or in any manner control, the operations of the constitutional laws enacted by
Congress to carry into execution the powers vested in the general government. This is, we
think, the unavoidable consequence of that supremacy which the constitution has
declared.
We are unanimously of opinion, that the law passed by the legislature of Maryland,
imposing a tax on the Bank of the United States, is unconstitutional and void.
This opinion does not deprive the States of any resources which they originally possessed.
It does not extend to a tax paid by the real property of the bank, in common with the other
real property within the State, nor to a tax imposed on the interest which the citizens of
Maryland may hold in this institution, in common with other property of the same
description throughout the State. But this is a tax on the operations of the bank, and is,
consequently, a tax on the operation of an instrument employed by the government of the
Union to carry its powers into execution. Such a tax must be unconstitutional.
Source: 4 Wheaton 316 (1819).
Part III: The Growth of American Society
There was an exuberance to be found in the United States of the early nineteenth century,
a feeling of confidence in the ability of the new nation and of its people to overcome all
difficulties. The Puritan dream of America as a "city upon a hill" seemed on the verge of
becoming reality.
There were several sources for this optimism. The country, except during the War of
1812, was at peace, and that battle with England had seemed to many Americans the final
act of the War for Revolution, confirming the new nation's independence. Despite some
economic problems, the United States enjoyed great prosperity, with the opening of
western lands making more than enough room for the newcomers from Europe seeking
political freedom and opportunity. The purchase of Louisiana from France in 1803
extended American boundaries to the Pacific, and the Lewis and Clark expedition to
explore the purchase reported that even more fertile lands and great forests lay awaiting
exploration and settlement.
But the most important factor was the continued success of the national experiment in
democracy. In the bloodless "revolution of 1800," as the election of 1800 came to be
called, power had peacefully changed hands from the Federalists to the Republicans, an
event then unparalleled in human history. Although slavery cast a shadow on the future
(see Part IV), most Americans took pride in the fact that no other people in the world at
that time enjoyed so much freedom. Despite the fears of the Anti-Federalists in the 1780s,
the national government in Washington did nothing to invade the rights and privileges of
its citizens. People joined enthusiastically in the political process, a fact noted with
amazement by European visitors. If the ideal of the citizen as an engaged, conscientious
member of the polity would take hold any place, it seemed that the new United States
offered the most fertile soil.
This confidence did not preclude an awareness of problems, of the sense that Americans
had not yet achieved a perfect society. But writers, artists and politicians all believed that
these issues could be resolved, that the new Americans would be able to control their
destiny and, to match the more perfect Union established by the Constitution, that they
would create a more perfect society as well.
In this section we see this exuberance and confidence in a variety of documents that, with
one exception, look forward to a more democratic society in which individual
opportunity would be unfettered.
First Inaugural (1801)
Thomas Jefferson
In 1797 George Washington had turned over the reins of government to John Adams, the
second president of the United States. But Adams was a Federalist, a member of the same
political party as Washington, and so in many ways the transition was seen more as the
passing of office from a monarch to the heir. But the election of 1800 was bitterly
contested, and the Republicans, led by Thomas Jefferson of Virginia, clearly won at the
polls. Due to a technical complication unforeseen by the framers of the Constitution,
however, the election was thrown into the House of Representatives.
The Constitution called for the electors in each state to cast two ballots, one for their
presidential choice and one for the vice presidency. The framers had clearly intended that
the person with the most ballots would be the president, and the runner-up the vice
president. But by 1800 political parties had formed, and Jefferson ran with Aaron Burr of
New York as a team. The Republican electors cast two ballots, one for Jefferson and one
for Burr, and since the ballots were not designated "president" and "vice president," the
result was a tie. The Constitution called for the results to be determined by the House of
Representatives, with each state casting one ballot.
After intense and often bitter acrimony, in which the defeated Federalists tried to undo
the results of the election by having one of their own chosen by the Congress, Jefferson
emerged as the winner--the president the people had actually chosen. A subsequent
amendment to the Constitution rectified the problem, but the precedent had been set. The
people's choice would govern, and if a party were ousted from power, it would accept
defeat peacefully, and wait another chance at the polls.
During the period between the Jefferson's election and the final determination of the
House of Representatives, many European observers believed the United States would
soon plunge into civil war, for history had recorded no instance of one faction peacefully
surrendering the power of government to another. Nonetheless, the issue was resolved,
and the transition proceeded tranquilly.
Some people expected Jefferson in his inaugural to attack the Federalists and repudiate
their policies, of which he had been quite critical. Instead, he held out an olive branch and,
in a paean to democracy, lauded a society in which the full play of differing ideas could
take place. Only by allowing people full freedom to differ, Jefferson urged, could
democratic society thrive. Here again, a precedent had been set. Political parties, no
matter how bitter the electoral fight, would not only accept the results, but would be
expected to cooperate in furthering the good of the nation.
For further reading: Dumas Malone, volumes 3 and 4 of Jefferson and His Times (194881); David Sisson, The American Revolution of 1800 (1974); and Merrill D. Peterson,
Thomas Jefferson and the New Nation (1970).
First Inaugural
Friends and Fellow Citizens:-Called upon to undertake the duties of the first executive office of our country, I avail
myself of the presence of that portion of my fellow citizens which is here assembled, to
express my grateful thanks for the favor with which they have been pleased to look
toward me, to declare a sincere consciousness that the task is above my talents, and that I
approach it with those anxious and awful presentiments which the greatness of the charge
and the weakness of my powers so justly inspire. A rising nation, spread over a wide and
fruitful land, traversing all the seas with the rich productions of their industry, engaged in
commerce with nations who feel power and forget right, advancing rapidly to destinies
beyond the reach of mortal eye--when I contemplate these transcendent objects, and see
the honor, the happiness, and the hopes of this beloved country committed to the issue
and the auspices of this day, I shrink from the contemplation, and humble myself before
the magnitude of the undertaking. Utterly indeed, should I despair, did not the presence
of many whom I here see remind me, that in the other high authorities provided by our
constitution, I shall find resources of wisdom, of virtue, and of zeal, on which to rely
under all difficulties. To you, then, gentlemen, who are charged with the sovereign
functions of legislation, and to those associated with you, I look with encouragement for
that guidance and support which may enable us to steer with safety the vessel in which
we are all embarked amid the conflicting elements of a troubled world.
During the contest of opinion through which we have passed, the animation of discussion
and of exertions has sometimes worn an aspect which might impose on strangers unused
to think freely and to speak and to write what they think; but this being now decided by
the voice of the nation, announced according to the rules of the constitution, all will, of
course, arrange themselves under the will of the law, and unite in common efforts for the
common good. All, too, will bear in mind this sacred principle, that though the will of the
majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the
minority possess their equal rights, which equal laws must protect, and to violate which
would be oppression. Let us, then, fellow citizens, unite with one heart and one mind. Let
us restore to social intercourse that harmony and affection without which liberty and even
life itself are but dreary things. And let us reflect that having banished from our land that
religious intolerance under which mankind so long bled and suffered, we have yet gained
little if we countenance a political intolerance as despotic, as wicked, and capable of as
bitter and bloody persecutions. During the throes and convulsions of the ancient world,
during the agonizing spasms of infuriated man, seeking through blood and slaughter his
long-lost liberty, it was not wonderful that the agitation of the billows should reach even
this distant and peaceful shore; that this should be more felt and feared by some and less
by others; that this should divide opinions as to measures of safety. But every difference
of opinion is not a difference of principle. We have called by different names brethren of
the same principle. We are all republicans--we are all federalists. If there be any among
us who would wish to dissolve this Union or to change its republican form, let them stand
undisturbed as monuments of the safety with which error of opinion may be tolerated
where reason is left free to combat it. I know, indeed, that some honest men fear that a
republican government cannot be strong; that this government is not strong enough. But
would the honest patriot, in the full tide of successful experiment, abandon a government
which has so far kept us free and firm, on the theoretic and visionary fear that this
government, the world's best hope, may by possibility want energy to preserve itself? I
trust not. I believe this, on the contrary, the strongest government on earth. I believe it is
the only one where every man, at the call of the laws, would fly to the standard of the law,
and would meet invasions of the public order as his own personal concern. Sometimes it
is said that man cannot be trusted with the government of himself. Can he, then, be
trusted with the government of others? Or have we found angels in the forms of kings to
govern him? Let history answer this question.
Let us, then, with courage and confidence pursue our own federal and republican
principles, our attachment to our union and representative government. Kindly separated
by nature and a wide ocean from the exterminating havoc of one quarter of the globe; too
high-minded to endure the degradations of the others; possessing a chosen country, with
room enough for our descendants to the thousandth and thousandth generation;
entertaining a due sense of our equal right to the use of our own faculties, to the
acquisitions of our industry, to honor and confidence from our fellow citizens, resulting
not from birth but from our actions and their sense of them; enlightened by a benign
religion, professed, indeed, and practiced in various forms, yet all of them including
honesty, truth, temperance, gratitude, and the love of man; acknowledging and adoring an
overruling Providence, which by all its dispensations proves that it delights in the
happiness of man here and his greater happiness hereafter; with all these blessings, what
more is necessary to make us a happy and prosperous people? Still one thing more,
fellow citizens--a wise and frugal government, which shall restrain men from injuring
one another, which shall leave them otherwise free to regulate their own pursuits of
industry and improvement, and shall not take from the mouth of labor the bread it has
earned. This is the sum of good government, and this is necessary to close the circle of
our felicities.
About to enter, fellow citizens, on the exercise of duties which comprehend everything
dear and valuable to you, it is proper that you should understand what I deem the
essential principles of our government, and consequently those which ought to shape its
administration. I will compress them within the narrowest compass they will bear, stating
the general principle, but not all its limitations. Equal and exact justice to all men, of
whatever state or persuasion, religious or political; peace, commerce, and honest
friendship, with all nations--entangling alliances with none; the support of the state
governments in all their rights, as the most competent administrations for our domestic
concerns and the surest bulwarks against anti-republican tendencies; the preservation of
the general government in its whole constitutional vigor, as the sheet anchor of our peace
at home and safety abroad; a jealous care of the right of election by the people--a mild
and safe corrective of abuses which are lopped by the sword of the revolution where
peaceable remedies are unprovided; absolute acquiescence in the decisions of the
majority--the vital principle of republics, from which there is no appeal but to force, the
vital principle and immediate parent of despotism; a well-disciplined militia--our best
reliance in peace and for the first moments of war, till regulars may relieve them; the
supremacy of the civil over the military authority; economy in the public expense, that
labor may be lightly burdened; the honest payment of our debts and sacred preservation
of the public faith; encouragement of agriculture, and of commerce as its handmaid; the
diffusion of information and the arraignment of all abuses at the bar of public reason;
freedom of religion; freedom of the press; freedom of person under the protection of the
habeas corpus; and trial by juries impartially selected--these principles form the bright
constellation which has gone before us, and guided our steps through an age of revolution
and reformation. The wisdom of our sages and the blood of our heroes have been devoted
to their attainment. They should be the creed of our political faith--the text of civil
instruction--the touchstone by which to try the services of those we trust; and should we
wander from them in moments of error or alarm, let us hasten to retrace our steps and to
regain the road which alone leads to peace, liberty, and safety.
I repair, then, fellow citizens, to the post you have assigned me. With experience enough
in subordinate offices to have seen the difficulties of this, the greatest of all, I have
learned to expect that it will rarely fall to the lot of imperfect man to retire from this
station with the reputation and the favor which bring him into it. Without pretensions to
that high confidence reposed in our first and great revolutionary character, whose
preeminent services had entitled him to the first place in his country's love, and destined
for him the fairest page in the volume of faithful history, I ask so much confidence only
as may give firmness and effect to the legal administration of your affairs. I shall often go
wrong through defect of judgment. When right, I shall often be thought wrong by those
whose positions will not command a view of the whole ground. I ask your indulgence for
my own errors, which will never be intentional; and your support against the errors of
others, who may condemn what they would not if seen in all its parts. The approbation
implied by your suffrage is a consolation to me for the past; and my future solicitude will
be to retain the good opinion of those who have bestowed it in advance, to conciliate that
of others by doing them all the good in my power, and to be instrumental to the happiness
and freedom of all.
Relying, then, on the patronage of your good will, I advance with obedience to the work,
ready to retire from it whenever you become sensible how much better choice it is in your
power to make. And may that Infinite Power which rules the destinies of the universe,
lead our councils to what is best, and give them a favorable issue for your peace and
prosperity.
Source: Merrill D. Peterson, ed., The Portable Thomas Jefferson (1975), 290.
Surrender Speech (1832)
Black Hawk
North America had never been an "empty" land, and at the time of European settlement
was settled by Native American tribes with well-shaped and well-functioning societies.
The European settlers and the cultural values they brought with them clashed with those
of the native inhabitants almost from the minute the English landed at the mouth of the
Chesapeake. Prior to the Revolution the whites had gradually pushed those they called
"Indians" westward; moreover, the goals and desires of the Europeans, such as
colonization, land exploitation and religious conversions, conflicted sharply with native
culture. According to some scholars, both Native American tribes and English settlers
were in the process of nation-building--processes that unfortunately collided.
After the establishment of the United States, both state and national leaders recognized
that the country had to adopt a national policy toward the Native Americans.
Unfortunately, the policy adopted in the 1820s to solve the "Indian problem" was their
removal and resettlement in the "Great American Desert." In 1830 Congress passed the
Indian Removal Act and appropriated $500,000 for the purpose. Under the presidency of
Andrew Jackson some ninety-four removal treaties were negotiated, and by 1840 most of
the Indians in the more settled states and territories had in fact been sent west.
Few tribes went willingly, and from April to August 1832 an armed band of Sauk and
Fox under Chief Black Hawk sought to reoccupy the lands they had held in the Illinois
and Wisconsin Territory. The natives faced famine and hostile Sioux to the west, and
wanted nothing more than a place with decent land in which to plant their corn. The
Illinois militia chased them into Wisconsin and massacred women and children as the
tribe attempted to escape across the Mississippi River. Finally Black Hawk had no choice
but to surrender, and in his speech he detailed the history of lies and betrayal the white
men had perpetuated on Native Americans.
After his defeat, Black Hawk and his son Whirling Thunder were captured and sent by
Andrew Jackson on a tour, to be displayed as "trophies" of war. But the two prisoners
showed such dignity in their ordeal that the public quickly began to sympathize with
them. The demand for western land, however, would not abate, and governmental policy
continued to treat the tribes as barriers to progress, either to be removed to some distant
reservation or killed. Not until the twentieth century, after the United States had spread
across the continent and had restricted the tribes to reservations, did the federal
government attempt to seek a different policy.
For further reading: Black Hawk: An Autobiography (Jackson, ed., 1955); Grant
Foreman, Indian Removal (1932); Ronald N. Satz, American Indian Policy in the
Jacksonian Era (1974); Michael D. Green, The Politics of Indian Removal (1982); and
Francis Paul Prucha, The Great Father: The United States Government and the American
Indians (1986).
Surrender Speech
Black-hawk is an Indian. He has done nothing for which an Indian ought to be ashamed.
He has fought for his countrymen, the squaws and papooses, against white men, who
came, year after year, to cheat them and take away their lands. You know the cause of our
making war. It is known to all white men. They ought to be ashamed of it. The white men
despise the Indians, and drive them from their homes. But the Indians are not deceitful.
The white men speak bad of the Indian, and look at him spitefully. But the Indian does
not tell lies; Indians do not steal.
An Indian, who is as bad as the white men, could not live in our nation; he would be put
to death, and eat up by the wolves. The white men are bad schoolmasters; they carry false
looks, and deal in false actions; they smile in the face of the poor Indian to cheat him;
they shake them by the hand to gain their confidence, to make them drunk, to deceive
them, and ruin our wives. We told them to let us alone, and keep away from us; but they
followed on, and beset our paths, and they coiled themselves among us, like the snake.
They poisoned us by their touch. We were not safe. We lived in danger. We were
becoming like them, hypocrites and liars, adulterers, lazy drones, all talkers, and no
workers.
We looked up to the Great Spirit. We went to our great father. We were encouraged. His
great council gave us fair words and big promises; but we got no satisfaction. Things
were growing worse. There were no deer in the forest. The opossum and beaver were fled;
the springs were drying up, and our squaws and papooses without victuals to keep them
from starving; we called a great council, and built a large fire. The spirit of our fathers
arose and spoke to us to avenge our wrongs or die. We all spoke before the council fire. It
was warm and pleasant. We set up the war-whoop, and dug up the tomahawk; our knives
were ready, and the heart of Black-hawk swelled high in his bosom, when he led his
warriors to battle. He is satisfied. He will go to the world of spirits contented. He has
done his duty. His father will meet him there, and commend him.
Source: Frank E. Stevens, The Black Hawk War (1903), 372-73.
Democracy in America (1835)
Alexis de Tocqueville
Strangers can often observe with greater clarity that with which we are too familiar, and
throughout their history Americans have been fascinated by the comments of foreign
travelers. Moreover, those comments have often highlighted aspects of American culture
and society that Americans themselves had not previously noticed. Of the many travelers
who visited America and wrote down their impressions, none proved as perceptive as
Alexis de Tocqueville, and none of their works has had such an enduring impact, not only
on explaining Jacksonian America to the Old World, but to the New as well.
De Tocqueville and Gustave de Beaumont, both French aristocrats, were sent by the
French government in 1831 to study the American prison system. They arrived in New
York in May of that year, and spent nine months traveling around the United States,
taking notes not only on prisons, but on all aspects of American society, its economy and
its unique political system. After they returned to France in February 1832, the two men
submitted their penal report, and Beaumont wrote a novel about race relations in the
United States.
But it would be de Tocqueville's work, which went through innumerable editions in the
nineteenth century, that became a classic. American politics fascinated him, and he
caught the sense--so alien to the Old World--of the dedication of common people to the
political process. He came when Andrew Jackson was president and political parties were
undergoing a major transformation, from small organizations dominated by local elite
caucuses to mass membership bodies devoted to electing officials at the local, state and
national level. As he noted with amazement, "No sooner do you set foot upon American
ground, than you are stunned by a kind of tumult. . . . Almost the only pleasure which an
American knows is to take a part in the government, and to discuss its measures. To give
but one example of this enthusiasm, at a great outdoor gathering at Auburn, New York,
Senator Rivers of Virginia addressed the audience for three and a half hours! After the
crowd took a brief stretch, Senator Legarè of South Carolina went on for another
two and a half hours!"
Democracy in America is acclaimed for its author's perception, but it has also been
criticized by recent scholars for its glaring gaps as well. The aristocratic de Tocqueville
chose not to see many things, including poverty in the cities and the plight of slaves. But
his account of Jacksonian America captures the energy of the young nation and, above all,
how intensely people made democracy work. The following selection, analyzing the
political system, caught some of the weaknesses of democracy as well as its strengths.
For further reading: Whitney Pope and Lucetta Pope, Alexis de Tocqueville: His Social
and Political Theory (1986); Richard Reeves, American Journey: Traveling with
Tocqueville in Search of Democracy in America (1982).
Self-Reliance (1841)
Ralph Waldo Emerson
Ralph Waldo Emerson (1803-1882) was democracy's poet and the central figure in the
Transcendental movement that invigorated American intellectual life in the midnineteenth century. Transcendentalism defined "reason" as the highest human faculty, the
individual's innate capacity to grasp beauty and truth by allowing full play to the intellect
and emotions. The movement emerged from a small group of intellectuals centered in
Concord, Massachusetts, and Emerson proved not only its intellectual leader but its most
eloquent voice as well.
Trained as a Unitarian minister, Emerson left the church in 1832 to devote himself to
writing and teaching and fostering a unique American philosophy. In "The American
Scholar" (1837), he called upon his countrymen to achieve an intellectual independence
from Europe to complement the political independence they had already achieved. As
Henry Clay had commented, "We look too much abroad. . . . Let us become real and true
Americans." In his address to Harvard, Emerson asked, "Why should not we have a
poetry and philosophy of insight and not of tradition and a religion by revelation to us?
Let us demand our own works and laws and worship." Oliver Wendell Holmes called the
speech "Our intellectual Declaration of Independence."
In his poetry and essays, Emerson celebrated the diversity and freedom he found in
American life, and he demanded that his fellow citizens be worthy of their freedom by
daring to be independent in their individual lives. In this, his most famous essay, he
declared that "Nothing is sacred but the integrity of your own mind." The quest for selfreliance was really a search for harmony in the universe, which could only be achieved
by each person seeking his or her own unique means of self-fulfillment. Emerson
scandalized proper society by his attacks on organized religion, which he believed stifled
the soul; for him, the divinity of each person lay in the individuality that could be sought
in a free society. Even there, he noted, the idealist could be misunderstood.
Originally Emerson eschewed the "real" world for his beloved ideas. Although he
opposed slavery, he avoided for as long as possible the radical abolitionist societies
calling for an end to Negro bondage. But when he believed that his hero, Daniel Webster,
had betrayed public trust by supporting the Fugitive Slave Law of 1850, Emerson
attacked him publicly. In the next decade, he helped hide runaway slaves and spoke out
openly for the abolitionist cause.
For further reading: Gay Wilson Allen, Waldo Emerson (1981); Stephen E. Whicher,
Freedom and Fate: An Inner Life of Ralph Waldo Emerson (1953); Philip F. Gura and
Joel Myerson, eds., Critical Essays on American Transcendentalism (1982).
Self-Reliance
Ne te quaesiveris extra.
Man is his own star; and the soul that can Render an honest and a perfect man Commands
all light, all influence, all fate; Nothing to him falls early or too late. Our acts our angels
are, or good or ill, Our fatal shadows that walk by us still. --Epilogue to Beaumont and
Fletcher's Honest Man's Fortune
Cast the bantling on the rocks, Suckle him with the she-wolf's teat, Wintered with the
hawk and fox, Power and speed be hands and feet.
I read the other day some verses written by an eminent painter which were original and
not conventional. The soul always hears an admonition in such lines, let the subject be
what it may. The sentiment they instill is of more value than any thought they may
contain. To believe your own thought, to believe that what is true for you in your private
heart is true for all men,--that is genius. Speak your latent conviction, and it shall be the
universal sense; for the inmost in due time becomes the outmost, and our first thought is
rendered back to us by the trumpets of the Last Judgment. Familiar as the voice of the
mind is to each, the highest merit we ascribe to Moses, Plato, and Milton is that they set
at naught books and traditions, and spoke not what men, but what they thought. A man
should learn to detect and watch that gleam of light which flashes across his mind from
within, more than the lustre of the firmament of bards and sages. Yet he dismisses
without notice his thought, because it is his. In every work of genius we recognize our
own rejected thoughts; they come back to us with a certain alienated majesty. Great
works of art have no more affecting lesson for us than this. They teach us to abide by our
spontaneous impression with good-humored inflexibility than most when the whole cry
of voices is on the other side. Else to-morrow a stranger will say with masterly good
sense precisely what we have thought and felt all the time, and we shall be forced to take
with shame our own opinion from another.
There is a time in every man's education when he arrives at the conviction that envy is
ignorance; that imitation is suicide; that he must take himself for better for worse as his
portion; that though the wide universe is full of good, no kernel of nourishing corn can
come to him but through his toil bestowed on that plot of ground which is given to him to
till. The power which resides in him is new in nature, and none but he knows what that is
which he can do, nor does he know until he has tried. Not for nothing one face, one
character, one fact, makes much impression on him, and another none. This sculpture in
the memory is not without preëstablished harmony. The eye was placed where one
ray should fall, that it might testify of that particular ray. We but half express ourselves,
and are ashamed of that divine idea which each of us represents. It may be safely trusted
as proportionate and of good issues, so it be faithfully imparted, but God will not have his
work made manifest by cowards. A man is relieved and gay when he has put his heart
into his work and done his best; but what he has said or done otherwise shall give him no
peace. It is a deliverance which does not de-liver. In the attempt his genius deserts him;
no muse befriends; no invention, no hope.
Trust thyself: every heart vibrates to that iron string. Accept the place the divine
providence has found for you, the society of your contemporaries, the connection of
events. Great men have always done so, and confided themselves childlike to the genius
of their age, betraying their perception that the absolutely trustworthy was seated at their
heart, working through their hands, predominating in all their being. And we are now
men, and must accept in the highest mind the same transcendent destiny; and not minors
and invalids in a protected corner, not cowards fleeing before a revolution, but guides,
redeemers, and benefactors, obeying the Almighty effort and advancing on Chaos and the
Dark.
What pretty oracles nature yields us on this text in the face and behavior of children,
babes, and even brutes! That divided and rebel mind, that distrust of a sentiment because
our arithmetic has computed the strength and means opposed to our purpose, these have
not. Their mind being whole, their eye is as yet unconquered, and when we look in their
faces we are disconcerted. Infancy conforms to nobody; all conform to it; so that one
babe commonly makes four or five out of the adults who prattle and play to it. So God
has armed youth and puberty and manhood no less with its own piquancy and charm, and
made it enviable and gracious and its claims not to be put by, if it will stand by itself. Do
not think the youth has no force, because he cannot speak to you and me. Hark! in the
next room his voice is sufficiently clear and emphatic. It seems he knows how to speak to
his contemporaries. Bashful or bold then, he will know how to make us seniors very
unnecessary.
The nonchalance of boys who are sure of a dinner, and would disdain as much as a lord
to do or say aught to conciliate one, is the healthy attitude of human nature. A boy is in
the parlor what the pit is in the playhouse; independent, irresponsible, looking out from
his corner on such people and facts as pass by, he tries and sentences them on their merits,
in the swift, summary way of boys, as good, bad, interesting, silly, eloquent, troublesome.
He cumbers himself never about consequences, about interests; he gives an independent,
genuine verdict. You must court him; he does not court you. But the man is as it were
clapped into jail by his consciousness. As soon as he has once acted or spoken with
éclat he is a committed person, watched by the sympathy or the hatred of
hundreds, whose affections must now enter into his account. There is no Lethe for this.
Ah, that he could pass again into his neutrality! Who can thus avoid all pledges and,
having observed, observe again from the same unaffected, unbiased, unbribable,
unaffrighted innocence,--must always be formidable. He would utter opinions on all
passing affairs, which being seen to be not private but necessary, would sink like darts
into the ear of men and put them in fear.
These are the voices which we hear in solitude, but they grow faint and inaudible as we
enter into the world. Society everywhere is in conspiracy against the manhood of every
one of its members. Society is a joint-stock company, in which the members agree, for
the better securing of his bread to each shareholder, to surrender the liberty and culture of
the eater. The virtue in most request is conformity. Self-reliance is its aversion. It loves
not realities and creators, but names and customs.
Whoso would be a man, must be a nonconformist. He who would gather immortal palms
must not be hindered by the name of goodness, but must explore if it be goodness.
Nothing is at last sacred but the integrity of your own mind. Absolve you to yourself, and
you shall have the suffrage of the world. I remember an answer which when quite young
I was prompted to make to a valued adviser who was wont to importune me with the dear
old doctrines of the church. On my saying, "What have I to do with the sacredness of
traditions, if I live wholly from within?" my friend suggested,--"But these impulses may
be from below, not from above." I replied, "They do not seem to me to be such; but if I
am the Devil's child, I will live then from the Devil." No law can be sacred to me but that
of my nature. Good and bad are but names very readily transferable to that or this; the
only right is what is after my constitution; the only wrong what is against it. A man is to
carry himself in the presence of all opposition as if every thing were titular and
ephemeral but he. I am ashamed to think how easily we capitulate to badges and names,
to large societies and dead institutions. Every decent and well-spoken individual affects
and sways me more than is right. I ought to go upright and vital, and speak the rude truth
in all ways. If malice and vanity wear the coat of philanthropy, shall that pass? If an
angry bigot assumes this bountiful cause of Abolition, and comes to me with his last
news from Barbadoes, why should I not say to him, "Go love thy infant; love thy woodchopper; be good-natured and modest; have that grace; and never varnish your hard,
uncharitable ambition with this incredible tenderness for black folk a thousand miles off.
Thy love afar is spite at home." Rough and graceless would be such greeting, but truth is
handsomer than the affectation of love. Your goodness must have some edge to it,--else it
is none. The doctrine of hatred must be preached, as the counteraction of the doctrine of
love, when that pules and whines. I shun father and mother and wife and brother when
my genius calls me. I would write on the lintels of the door-post, Whim. I hope it is
somewhat better than whim at last, but we cannot spend the day in explanation. Expect
me not to show cause why I seek or why I exclude company. They again, do not tell me,
as a good man did to-day, of my obligation to put all poor men in good situations. Are
they my poor? I tell thee, thou foolish philanthropist, that I grudge the dollar, the dime,
the cent I give to such men as do not belong to me and to whom I do not belong. There is
a class of persons to whom by all spiritual affinity I am bought and sold; for them I will
go to prison if need be; but your miscellaneous popular charities; the education at college
of fools; the building of meeting-houses to the vain end to which many now stand; alms
to sots, and the thousand-fold Relief Societies;-- though I confess with shame I
sometimes succumb and give the dollar, it is a wicked dollar, which by and by I shall
have the manhood to withhold.
Virtues are, in the popular estimate, rather the exception than the rule. There is the man
and his virtues. Men do what is called a good action, as some piece of courage or charity,
much as they would pay a fine in expiation of daily non-appearance on parade. Their
works are done as an apology or extenuation of their living in the world,--as invalids and
the insane pay a high board. Their virtues are penances. I do not wish to expiate, but to
live. My life is for itself and not for a spectacle. I much prefer that it should be of a lower
strain, so it be genuine and equal, than that it should be glittering and unsteady. I wish it
to be sound and sweet, and not to need diet and bleeding. I ask primary evidence that you
are a man, and refuse this appeal from the man to his actions. I know that for myself it
makes no difference whether I do or forbear those actions which are reckoned excellent. I
cannot consent to pay for a privilege where I have intrinsic right. Few and mean as my
gifts may be, I actually am, and do not need for my own assurance or the assurance of my
fellows any secondary testimony.
What I must do is all that concerns me, not what the people think. This rule, equally
arduous in actual and in intellectual life, may serve for the whole distinction between
greatness and meanness. It is the harder because you will always find those who think
they know what is your duty better than you know it. It is easy in the world to live after
the world's opinion; it is easy in solitude to live after our own; but the great man is he
who in the midst of the crowd keeps with perfect sweetness the independence of solitude.
The objection to conforming to usages that have become dead to you is that it scatters
your force. It loses your time and blurs the impression of your character. If you maintain
a dead church, contribute to a dead Bible-society, vote with a great party either for the
government or against it, spread your table like base housekeepers,--under all these
screens I have difficulty to detect the precise man you are: and of course so much force is
withdrawn from your proper life. But do your work, and I shall know you. Do your work,
and you shall reinforce yourself. A man must consider what a blind-man's-buff is this
game of conformity. If I know your sect I anticipate your argument. I hear a preacher
announce for his text and topic the expediency of one of the institutions of his church. Do
I not know beforehand that not possibly can he say a new spontaneous word? Do I not
know that with all this ostentation of examining the grounds of the institution he will do
no such thing? Do I not know that he is pledged to himself not to look but at one side, the
permitted side, not as a man, but as a parish minister? He is a retained attorney, and these
airs of the bench are the emptiest affectation. Well, most men have bound their eyes with
one or another handkerchief, and attached themselves to some one of these communities
of opinion. This conformity makes them not false in a few particulars, authors of a few
lies, but false in all particulars. Their every truth is not quite true. Their two is not the real
two, their four not the real four; so that every word they say chagrins us and we know not
where to begin to set them right. Meantime nature is not slow to equip us in the prisonuniform of the party to which we adhere. We come to wear one cut of face and figure,
and acquire by degrees the gentlest asinine expression. There is a mortifying experience
in particular, which does not fail to wreak itself also in the general history; I mean "the
foolish face of praise," the forced smile which we put on in company where we do not
feel at ease, in answer to conversation which does not interest us. The muscles, not
spontaneously moved but moved by a low usurping wilfulness, grow tight about the
outline of the face, with the most disagreeable sensation.
For nonconformity the world whips you with its displeasure. And therefore a man must
know how to estimate a sour face. The by-standers look askance on him in the public
street or in the friend's parlor. If this aversion had its origin in contempt and resistance
like his own he might well go home with a sad countenance; but the sour faces of the
multitude, like their sweet faces, have no deep cause, but are put on and off as the wind
blows and a newspaper directs. Yet is the discontent of the multitude more formidable
than that of the senate and the college. It is easy enough for a firm man who knows the
world to brook the rage of the cultivated classes. Their rage is decorous and prudent, for
they are timid, as being very vulnerable themselves. But when to their feminine rage the
indignation of the people is added, when the ignorant and the poor are aroused, when the
unintelligent brute force that lies at the bottom of society is made to growl and mow, it
needs the habit of magnanimity and religion to treat it godlike as a trifle of no
concernment.
The other terror that scares us from self-trust is our consistency; a reverence for our past
act or word because the eyes of others have no other data for computing our orbit than
our past acts, and we are loath to disappoint them.
But why should you keep your head over your shoulder? Why drag about this corpse of
your memory, lest you contradict somewhat you have stated in this or that public place?
Suppose you should contradict yourself; what then? It seems to be a rule of wisdom never
to rely on your memory alone, scarcely even in acts of pure memory, but to bring the past
for judgment into the thousand-eyed present, and live ever in a new day. In your
metaphysics you have denied personality to the Deity, yet when the devout motions of
the soul come, yield to them heart and life though they should clothe God with shape and
color. Leave your theory, as Joseph his coat in the hand of the harlot, and flee.
A foolish consistency is the hobgoblin of little minds, adored by little statesmen and
philosophers and divines. With consistency a great soul has simply nothing to do. He may
as well concern himself with his shadow on the wall. Speak what you think now in hard
words and to-morrow speak what to-morrow thinks in hard words again, though it
contradict every thing you said to-day.--"Ah, so you shall be sure to be misunderstood."-Is it so bad then to be misunderstood? Pythagoras was misunderstood, and Socrates, and
Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise
spirit that ever took flesh. To be great is to be misunderstood. . . .
Source: The Complete Essays and Other Writings of Ralph Waldo Emerson (Brooks
Atkinson, ed., 1940), 145-52.
Memorial to the Massachusetts Legislature (1843)
Dorothea Dix
Describing the burst of humanitarian reform that marked the decades prior to the Civil
War, Ralph Waldo Emerson wrote that the young men were born "with knives in their
brains." He might have added young women as well, for few reformers of that Age of
Reform were as effective as Dorothea Lynde Dix (1802-1887). Born into a family of
modest means in rural Maine, she ran a school for young children in Boston when she
was nineteen years old, and over the next few years published several children's books.
Illness forced her to close the school, and in an effort to restore her health she went on an
extended trip to England. There she came to know many English reformers, and began to
take an interest in humanitarian causes.
Dix returned to Boston, and in 1841 visited a jail in Cambridge to teach a Sunday school
class. There she encountered mentally ill women--"lunatics," as they were called at the
time--confined together with common criminals in filthy cells. She had now found her
life's work. An amazing woman--beautiful, naturally timid and diffident--Dix visited all
parts of the country crusading for humane treatment of the mentally ill. She started with
this "Memorial to the Legislature of Massachusetts" in 1843, and the state government
responded by constructing separate facilities for mental patients. She then turned to the
national stage, and got Congress to establish St. Elizabeth's Hospital in Washington. She
was the only New England reformer to visit the southern states, where chivalry gave her a
hearing, and nine southern states built public mental hospitals.
Dix went to Europe and enlisted the support of the Duke of Argyll and Queen Victoria in
her crusade. In Rome she told Pope Pius IX that the local asylum was "a scandal and a
disgrace." The Pope had the situation investigated and, upon discovering that the report
was correct, ordered reforms at the institution.
Although she involved herself in other reforms, and during the Civil War was put in
charge of nursing for the Union army, she is best remembered for her work on behalf of
the mentally ill. She fostered a revolution in mental health care, and due to her efforts
more than 120 hospitals were built throughout the country to provide medical care
instead of mere incarceration. But she should also be seen, along with Horace Mann,
William Lloyd Garrison and others, as a reformer who believed that democracy permitted,
in fact required, that its citizens use their freedom to correct injustice and to aid those
unable to help themselves.
For further reading: David Rothman, The Discovery of the Asylum (1971); Alice Felt
Tyler, Freedom's Ferment (1944); Charles Schlaifer and Lucy Freeman, Heart's
Work...Dorothea Lynde Dix (1991).
Memorial to the Massachusetts Legislature
Gentlemen,--I respectfully ask to present this Memorial, believing that the cause, which
actuates to and sanctions so unusual a movement, presents no equivocal claim to public
consideration and sympathy. . .
About two years since leisure afforded opportunity and duty prompted me to visit several
prisons and almshouses in the vicinity of this metropolis. I found, near Boston, in the jails
and asylums for the poor, a numerous class brought into unsuitable connection with
criminals and the general mass of paupers. I refer to idiots and insane persons, dwelling
in circumstances not only adverse to their own physical and moral improvement, but
productive of extreme disadvantages to all other persons brought into association with
them. I applied myself diligently to trace the causes of these evils, and sought to supply
remedies. As one obstacle was surmounted, fresh difficulties appeared. Every new
investigation has given depth to the conviction that it is only by decided, prompt, and
vigorous legislation the evils to which I refer, and which I shall proceed more fully to
illustrate, can be remedied. I shall be obliged to speak with great plainness, and to reveal
many things revolting to the taste, and from which my woman's nature shrinks with
peculiar sensitiveness. But truth is the highest consideration. I tell what I have seen-painful and shocking as the details often are--that from them you may feel more deeply
the imperative obligation which lies upon you to prevent the possibility of a repetition or
continuance of such outrages upon humanity. . . .
I come to present the strong claims of suffering humanity. I come to place before the
Legislature of Massachusetts the condition of the miserable, the desolate, the outcast. I
come as the advocate of helpless, forgotten, insane, and idiotic men and women; of
beings sunk to a condition from which the most unconcerned would start with real horror;
of beings wretched in our prisons, and more wretched in our almshouses. . . .
I must confine myself to few examples, but am ready to furnish other and more complete
details, if required.
If my pictures are displeasing, coarse, and severe, my subjects, it must be recollected,
offer no tranquil, refined, or composing features. The condition of human beings, reduced
to the extremest states of degradation and misery cannot be exhibited in softened
language, or adorn a polished page.
I proceed, gentlemen, briefly to call your attention to the present state of insane persons
confined within this Commonwealth, in cages, closets, cellars, stalls, pens! Chained,
naked, beaten with rods, and lashed into obedience. . . .
It is the Commonwealth, not its integral parts, that is accountable for most of the abuses
which have lately and do still exist. I repeat it, it is defective legislation which
perpetuates and multiplies these abuses. In illustration of my subject, I offer the following
extracts from my Note-book and Journal:-Springfield. In the jail, one lunatic woman, furiously mad, a State pauper, improperly
situated, both in regard to the prisoners, the keepers, and herself. It is a case of extreme
self-forgetfulness and oblivion to all the decencies of life, to describe which would be to
repeat only the grossest scenes. She is much worse since leaving Worcester. In the
almshouse of the same town is a woman apparently only needing judicious care, and
some well-chosen employment, to make it unnecessary to confine her in solitude, in a
dreary unfurnished room. Her appeals for employment and companionship are most
touching, but the mistress replied she had no time to attend to her. . . .
Lincoln. A woman in a cage. Medford. One idiotic subject chained, and one in a close
stall for seventeen years. Pepperell. One often doubly chained, hand and foot; another
violent; several peaceable now. Brookfield. One man caged, comfortable. Granville. One
often closely confined; now losing the use of his limbs from want of exercise.
Charlemont. One man caged. Savoy. One man caged. Lenox. Two in the jail, against
whose unfit condition there the jailer protests.
Dedham. The insane disadvantageously placed in the jail. In the almshouse, two females
in stalls, situated in the main building; lie in wooden bunks filled with straw; always shut
up. One of these subjects is supposed curable. The overseers of the poor have declined
giving her a trial at the hospital, as I was informed, on account of expense...
Besides the above, I have seen many who, part of the year, are chained or caged. The use
of cages all but universal. Hardly a town but can refer to some not distant period of using
them; chains are less common; negligences frequent; wilful abuse less frequent than
sufferings proceeding from ignorance, or want of consideration. I encountered during the
last three months many poor creatures wandering reckless and unprotected through the
country. . . . But I cannot particularize. In traversing the State, I have found hundreds of
insane persons in every variety of circumstance and condition, many whose situation
could not and need not be improved; a less number, but that very large, whose lives are
the saddest pictures of human suffering and degradation.
I give a few illustrations; but description fades before reality.
Danvers. November. Visited the almshouse. A large building, much out of repair.
Understand a new one is in contemplation. Here are from fifty-six to sixty inmates, one
idiotic, three insane; one of the latter in close confinement at all times.
Long before reaching the house, wild shouts, snatches of rude songs, imprecations and
obscene language, fell upon the ear, proceeding from the occupant of a low building,
rather remote from the principal building to which my course was directed. Found the
mistress, and was conducted to the place which was called "the home" of the forlorn
maniac, a young woman, exhibiting a condition of neglect and misery blotting out the
faintest idea of comfort, and outraging every sentiment of decency. She had been, I learnt,
"a respectable person, industrious and worthy. Disappointments and trials shook her mind,
and, finally, laid prostrate reason and self-control. She became a maniac for life. She had
been at Worcester Hospital for a considerable time, and had been returned as incurable."
The mistress told me she understood that, "while there, she was comfortable and decent."
Alas, what a change was here exhibited! She had passed from one degree of violence to
another, in swift progress. There she stood, clinging to or beating upon the bars of her
caged apartment, the contracted size of which afforded space only for increasing
accumulations of filth, a foul spectacle. There she stood with naked arms and dishevelled
hair, the unwashed frame invested with fragments of unclean garments, the air so
extremely offensive, though ventilation was afforded on all sides save one, that it was not
possible to remain beyond a few moments without retreating for recovery to the outward
air. Irritation of body, produced by utter filth and exposure, incited her to the horrid
process of tearing off her skin by inches. Her face, neck, and person were thus disfigured
to hideousness. She held up a fragment just rent off. To my exclamation of horror, the
mistress replied: "Oh, we can't help it. Half the skin is off sometimes. We can do nothing
with her; and it makes no difference what she eats, for she consumes her own filth as
readily as the food which is brought her."
Men of Massachusetts, I beg, I implore, I demand pity and protection for these of my
suffering, outraged sex. Fathers, husbands, brothers, I would supplicate you for this boon;
but what do I say? I dishonor you, divest you at once of Christianity and humanity, does
this appeal imply distrust. If it comes burdened with a doubt of your righteousness in this
legislation, then blot it out; while I declare confidence in your honor, not less than your
humanity. Here you will put away the cold, calculating spirit of selfishness and selfseeking; lay off the armor of local strife and political opposition; here and now, for once,
forgetful of the earthly and perishable, come up to these halls and consecrate them with
one heart and one mind to works of righteousness and just judgment.
Become the benefactors of your race, the just guardians of the solemn rights you hold in
trust. Raise up the fallen, succor the desolate, restore the outcast, defend the helpless, and
for your eternal and great reward receive the benediction, "Well done, good and faithful
servants, become rulers over many things!"
Injustice is also done to the convicts: it is certainly very wrong that they should be
doomed day after day and night after night to listen to the ravings of madmen and
madwomen. This is a kind of punishment that is not recognized by our statutes, and is
what the criminal ought not to be called upon to undergo. The confinement of the
criminal and of the insane in the same building is subversive of that good order and
discipline which should be observed in every well-regulated prison. I do most sincerely
hope that more permanent provision will be made for the pauper insane by the State,
either to restore Worcester Insane Asylum to what it was originally designed to be or else
make some just appropriation for the benefit of this very unfortunate class of our "fellowbeings."
Gentlemen, I commit to you this sacred cause. Your action upon this subject will affect
the present and future condition of hundreds and of thousands. In this legislation, as in all
things, may you exercise that "wisdom which is the breath of the power of God."
Respectfully Submitted, D. L. Dix
Source: Dix, Memorial to the Legislature of Massachusetts (1843).
Report No. 12 of the Massachusetts School Board (1848)
Horace Mann
The European tradition of education centered in the family rather than in schools did not
take root in the United States, because the pattern of the extended family--several
generations living under one roof--disappeared on the frontier. As families moved to take
advantage of free land, the old educational patterns broke down, and new forms were
generated. As a result, Americans began to delegate more and more educational
responsibility to the schools. The basic skills of reading, writing and arithmetic were just
the start; over the decades society has assigned many other skills previously learned in
the homes to be taught in schools.
But aside from teaching knowledge and skills, reformers saw the schools as the logical
place to inculcate democratic idealism. In the 1820s universal education was an idea held
by only a few visionaries; within a generation, a majority of the states had bought into
this idea. Aside from abolition, no other reform movement of the Jacksonian era had such
success, and the key figure was Horace Mann.
Born in Massachusetts in a Calvinist small town, Mann (1796-1859) had little formal
education as a youth, but read a lot at the town library, where he learned enough to be
admitted to Brown University. After graduation in 1819 he taught for a while, studied law
and then entered politics, where he soon became a rising star in the state assembly. Then
in 1835, he shocked family and friends by taking the job of secretary to the
Massachusetts Commission to Improve Education (later the State Board of Education), an
agency with no money or control over local schools.
Mann's only instrument was the Annual Report he wrote, in which he set forth his vision
of what education should be in a free society. Between 1837 and 1848, Mann became the
best-known educator in America, and the best-known American educator throughout the
world. Why?
His central thesis was essentially Jeffersonian--no republic can endure unless its citizens
are literate and educated. Moreover, he strongly believed, as did the Puritans of two
centuries earlier, that education should be moralistic.
But the United States in the 1830s had a greater diversity in social and economic status,
as well as in religious and moral values, than had Puritan New England two centuries
earlier. To this heterogeneity, Mann wanted to introduce the "common school"--that is, a
school common to all the people, that would provide a common and unifying experience.
This was a radical idea in the United States in the nineteenth century, and would be a
radical idea in the rest of the world until after the Second World War. Europe continued
to have a dual school system, in which the more prosperous classes were placed on a
track leading to a university education, while the children of the poor were directed
toward simple vocational training.
Mann wanted to eliminate the religious and class distinctions implicit in this dual system.
The common school would be commonly supported, commonly attended and commonly
controlled; its ultimate goal would be sociological and national unity.
Mann's faith was total. There were no limitations, at least in his mind, to what the
common school could do. He believed that the traditional curriculum could be
universalized, and that culture, hitherto reserved for the upper classes, could be
democratized.
But the most important element in Mann's faith was that schools could preserve and
sustain a democratic society. Unlike Jefferson, he did not believe that education by itself
was a virtue. Its value lay in the benefits it brought to society as well as to the individual.
In the sections that follow, taken from his last Annual Report, Mann summed up his
views on how an educated populace would avoid the social and economic divisions of the
Old World, and how educated citizens would ensure the triumph of democratic
government.
For further reading: Jonathan Messerli, Horace Mann: A Biography (1972); Lawrence A.
Cremin, American Education: The National Experience (1980); and Michael Katz, The
Irony of Early School Reform (1968).
Report No. 12 of the Massachusetts School Board
Under the Providence of God, our means of education are the grand machinery by which
the "raw material" of human nature can be worked up into inventors and discoverers, into
skilled artisans and scientific farmers, into scholars and jurists, into the founders of
benevolent institutions, and the great expounders of ethical and theological science. By
means of early education, these embryos of talent may be quickened, which will solve the
difficult problems of political and economical law; and by them, too, the genius may be
kindled which will blaze forth in the Poets of Humanity. Our schools, far more than they
have done, may supply the Presidents and Professors of Colleges, and Superintendents of
Public Instruction, all over the land; and send, not only into our sister states, but across
the Atlantic, the men of practical science, to superintend the construction of the great
works of art. Here, too, may those judicial powers be developed and invigorated, which
will make legal principles so clear and convincing as to prevent appeals to force; and,
should the clouds of war ever lower over our country, some hero may be found,--the
nursling of our schools, and ready to become the leader of our armies,--that best of all
heroes, who will secure the glories of a peace, unstained by the magnificent murders of
the battle-field. . . .
Without undervaluing any other human agency, it may be safely affirmed that the
Common School, improved and energized, as it can easily be, may become the most
effective and benignant of all the forces of civilization. Two reasons sustain this position.
In the first place, there is a universality in its operation, which can be affirmed of no other
institution whatever. If administered in the spirit of justice and conciliation, all the rising
generation may be brought within the circle of its reformatory and elevating influences.
And, in the second place, the materials upon which it operates are so pliant and ductile as
to be susceptible of assuming a greater variety of forms than any other earthly work of
the Creator. The inflexibility and ruggedness of the oak, when compared with the lithe
sapling or the tender germ, are but feeble emblems to typify the docility of childhood,
when contrasted with the obduracy and intractableness of man. It is these inherent
advantages of the Common School, which, in our own State, have produced results so
striking, from a system so imperfect, and an administration so feeble. In teaching the
blind, and the deaf and dumb, in kindling the latent spark of intelligence that lurks in an
idiot's mind, and in the more holy work of reforming abandoned and outcast children,
education has proved what it can do, by glorious experiments. These wonders, it has done
in its infancy, and with the lights of a limited experience; but, when its faculties shall be
fully developed, when it shall be trained to wield its mighty energies for the protection of
society against the giant vices which now invade and torment it;--against intemperance,
avarice, war, slavery, bigotry, the woes of want and the wickedness of waste,--then, there
will not be a height to which these enemies of the race can escape, which it will not scale,
nor a Titan among them all, whom it will not slay.
Now I proceed, then, in endeavoring to show how the true business of the schoolroom
connects itself, and becomes identical, with the great interests of society. The former is
the infant, immature state of those interests; the latter, their developed, adult state. As
"the child is father to the man," so may the training of the schoolroom expand into the
institutions and fortunes of the State. . . .
Intellectual Education, as a Means of Removing Poverty, and Securing Abundance
Another cardinal object which the government of Massachusetts, and all the influential
men in the State should propose to themselves, is the physical well-being of all the
people,--the sufficiency, comfort, competence, of every individual, in regard to food,
raiment, and shelter. And these necessaries and conveniences of life should be obtained
by each individual for himself, or by each family for themselves, rather than accepted
from the hand of charity, or extorted by poor-laws. It is not averred that this most
desirable result can, in all instances, be obtained; but it is, nevertheless, the end to be
aimed at. True statesmanship and true political economy, not less than true philanthropy,
present this perfect theory as the goal, to be more and more closely approximated by our
imperfect practice. The desire to achieve such a result cannot be regarded as an
unreasonable ambition; for, though all mankind were well-fed, well-clothed, and wellhoused, they might still be but half-civilized. . . .
According to the European theory, men are divided into classes,--some to toil and earn,
others to seize and enjoy. According to the Massachusetts theory, all are to have an equal
chance for earning, and equal security in the enjoyment of what they earn. The latter
tends to equality of condition; the former to the grossest inequalities. Tried by any
Christian standard of morals, or even by any of the better sort of heathen standards, can
any one hesitate, for a moment, in declaring which of the two will produce the greater
amount of human welfare; and which, therefore, is the more conformable to the Divine
will? The European theory is blind to what constitutes the highest glory, as well as the
highest duty, of a State. . . .
I suppose it to be the universal sentiment of all those who mingle any ingredient of
benevolence with their notions on Political Economy, that vast and overshadowing
private fortunes are among the greatest dangers to which the happiness of the people in a
republic can be subjected. Such fortunes would create a feudalism of a new kind; but one
more oppressive and unrelenting than that of the Middle Ages. The feudal lords in
England, and on the continent, never held their retainers in a more abject condition of
servitude, than the great majority of foreign manufacturers and capitalists hold their
operatives and laborers at the present day. The means employed are different, but the
similarity in results is striking. What force did then, money does now. The villein of the
Middle Ages had no spot of earth on which he could live, unless one were granted to him
by his lord. The operative or laborer of the present day has no employment, and therefore
no bread, unless the capitalist will accept his services. The vassal had no shelter but such
as his master provided for him. Not one in five thousand of English operatives, or farm
laborers, is able to build or own even a hovel; and therefore they must accept such shelter
as Capital offers them. The baron prescribed his own terms to his retainers; those terms
were peremptory, and the serf must submit or perish. The British manufacturer or farmer
prescribes the rate of wages he will give to his work-people; he reduces these wages
under whatever pretext he pleases; and they too have no alternative but submission or
starvation. In some respects, indeed, the condition of the modern dependant is more
forlorn than that of the corresponding serf class in former times. Some attributes of the
patriarchal relation did spring up between the lord and his lieges, to soften the harsh
relations subsisting between them. Hence came some oversight of the condition of
children, some relief in sickness, some protection and support in the decrepitude of age.
But only in instances comparatively few, have kindly offices smoothed the rugged
relation between British Capital and British Labor. The children of the work-people are
abandoned to their fate; and, notwithstanding the privations they suffer, and the dangers
they threaten, no power in the realm has yet been able to secure them an education; and
when the adult laborer is prostrated by sickness, or eventually worn out by toil and age,
the poor-house, which has all along been his destination, becomes his destiny.
Now two or three things will doubtless be admitted to be true, beyond all controversy, in
regard to Massachusetts. By its industrial condition, and its business operations, it is
exposed, far beyond any other state in the Union, to the fatal extremes of overgrown
wealth and desperate poverty. Its population is more dense than that of any other state. It
is four or five times more dense than the average of all the other states, taken together;
and density of population has always been one of the proximate causes of social
inequality. According to population and territorial extent, there is far more capital in
Massachusetts,--capital which is movable, and instantaneously available,--than in any
other state in the Union; and probably both these qualifications respecting population and
territory could be omitted without endangering the truth of the assertion. It has been
recently stated, in a very respectable public journal, on the authority of a writer
conversant with the subject, that, from the last of June, 1846, to the 1st of August, 1848,
the amount of money invested, by the citizens of Massachusetts, "in manufacturing cities,
railroads, and other improvements," is "fifty-seven millions of dollars, of which more
than fifty has been paid in and expended." The dividends to be received by the citizens of
Massachusetts from June, 1848, to April, 1849, are estimated, by the same writer, at ten
millions, and the annual increase of capital at "little short of twenty-two millions." If this
be so, are we not in danger of naturalizing and domesticating among ourselves those
hideous evils which are always engendered between Capital and Labor, when all the
capital is in the hands of one class, and all the labor is thrown upon another?
Now, surely, nothing but Universal Education can counter-work this tendency to the
domination of capital and the servility of labor. If one class possesses all the wealth and
the education, while the residue of society is ignorant and poor, it matters not by what
name the relation between them may be called; the latter, in fact and in truth, will be the
servile dependents and subjects of the former. But if education be equably diffused, it
will draw property after it, by the strongest of all attractions; for such a thing never did
happen, and never can happen, as that an intelligent and practical body of men should be
permanently poor. Property and labor, in different classes, are essentially antagonistic;
but property and labor, in the same class, are essentially fraternal. The people of
Massachusetts have, in some degree, appreciated the truth, that the unexampled
prosperity of the State,--its comfort, its competence, its general intelligence and virtue,-is attributable to the education, more or less perfect, which all its people have received;
but are they sensible of a fact equally important?--namely, that it is to this same education
that two thirds of the people are indebted for not being, to-day, the vassals of as severe a
tyranny, in the form of capital, as the lower classes of Europe are bound to in the form of
brute force.
Education, then, beyond all other devices of human origin, is the great equalizer of the
conditions of men--the balance-wheel of the social machinery. I do not here mean that it
so elevates the moral nature as to make men disdain and abhor the oppression of their
fellow-men. This idea pertains to another of its attributes. But I mean that it gives each
man the independence and the means, by which he can resist the selfishness of other men.
It does better than to disarm the poor of their hostility towards the rich; it prevents being
poor. Agrarianism is the revenge of poverty against wealth. The wanton destruction of
the property of others,--the burning of hay-ricks and corn-ricks, the demolition of
machinery, because it supersedes hand-labor, the sprinkling of vitriol on rich dresses,--is
only agrarianism run mad. Education prevents both the revenge and the madness. On the
other hand, a fellow-feeling for one's class or caste is the common instinct of hearts not
wholly sunk in selfish regards for person, or for family. The spread of education, by
enlarging the cultivated class or caste, will open a wider area over which the social
feelings will expand; and, if this education should be universal and complete, it would do
more than all things else to obliterate factitious distinctions in society.
The main idea set forth in the creeds of some political reformers, or revolutionizers, is
that some people are poor because others are rich. This idea supposes a fixed amount of
property in the community, which, by fraud or force, or arbitrary law, is unequally
divided among men; and the problem presented for solution is, how to transfer a portion
of this property from those who are supposed to have too much, to those who feel and
know that they have too little. At this point, both their theory and their expectation of
reform stop. But the beneficent power of education would not be exhausted, even though
it should peaceably abolish all the miseries that spring from the coexistence, side by side,
of enormous wealth and squalid want. It has a higher function. Beyond the power of
diffusing old wealth, it has the prerogative of creating new. It is a thousand times more
lucrative than fraud; and adds a thousandfold more to a nation's resources than the most
successful conquests. Knaves and robbers can obtain only what was before possessed by
others. But education creates or develops new treasures,--treasures not before possessed
or dreamed of by any one. . . .
If a savage will learn how to swim, he can fasten a dozen pounds' weight to his back, and
transport it across a narrow river, or other body of water of moderate width. If he will
invent an axe, or other instrument, by which to cut down a tree, he can use the tree for a
float, and one of its limbs for a paddle, and can thus transport many times the former
weight, many times the former distance. Hollowing out his log, he will increase, what
may be called, its tonnage,--or, rather, its poundage,--and, by sharpening its ends, it will
cleave the water both more easily and more swiftly. Fastening several trees together, he
makes a raft, and thus increases the buoyant power of his embryo water-craft. Turning up
the ends of small poles, or using knees of timber instead of straight pieces, and grooving
them together, or filling up the interstices between them, in some other way, so as to
make them water-tight, he brings his rude raft literally into ship-shape. Improving upon
hull below and rigging above, he makes a proud merchantman, to be wafted by the winds
from continent to continent. But, even this does not content the adventurous naval
architect. He frames iron arms for his ship; and, for oars, affixes iron wheels, capable of
swift revolution, and stronger than the strong sea. Into iron-walled cavities in her bosom,
he puts iron organs of massive structure and strength, and of cohesion insoluble by fire.
Within these, he kindles a small volcano; and then, like a sentient and rational existence,
this wonderful creation of his hands cleaves oceans, breasts tides, defies tempests, and
bears its living and jubilant freight around the globe. Now, take away intelligence from
the ship-builder, and the steamship,--that miracle of human art,--falls back into a floating
log; the log itself is lost; and the savage swimmer, bearing his dozen pounds on his back,
alone remains.
And so it is, not in one department only, but in the whole circle of human labors. The
annihilation of the sun would no more certainly be followed by darkness, than the
extinction of human intelligence would plunge the race at once into the weakness and
helplessness of barbarism. To have created such beings as we are, and to have placed
them in this world, without the light of the sun, would be no more cruel than for a
government to suffer its laboring classes to grow up without knowledge...
For the creation of wealth, then,--for the existence of a wealthy people and a wealthy
nation,--intelligence is the grand condition. The number of improvers will increase, as the
intellectual constituency, if I may so call it, increases. In former times, and in most parts
of the world even at the present day, not one man in a million has ever had such a
development of mind, as made it possible for him to become a contributor to art or
science. Let this development precede, and contributions, numberless, and of inestimable
value, will be sure to follow. That Political Economy, therefore, which busies itself about
capital and labor, supply and demand, interest and rents, favorable and unfavorable
balances of trade; but leaves out of account the element of a wide-spread mental
development, is nought but stupendous folly. The greatest of all the arts in political
economy is, to change a consumer into a producer; and the next greatest is to increase the
producer's producing power;--an end to be directly attained, by increasing his
intelligence...
Political Education
The necessity of general intelligence,--that is, of education, (for I use the terms as
substantially synonymous; because general intelligence can never exist without general
education, and general education will be sure to produce general intelligence,)--the
necessity of general intelligence, under a republican form of government, like most other
very important truths, has become a very trite one. It is so trite, indeed, as to have lost
much of its force by its familiarity. Almost all the champions of education seize upon this
argument, first of all; because it is so simple as to be understood by the ignorant, and so
strong as to convince the skeptical. Nothing would be easier than to follow in the train of
so many writers, and to demonstrate, by logic, by history, and by the nature of the case,
that a republican form of government, without intelligence in the people, must be, on a
vast scale, what a mad-house, without superintendent or keepers, would be, on a small
one;--the despotism of a few succeeded by universal anarchy, and anarchy by despotism,
with no change but from bad to worse. Want of space and time alike forbid me to attempt
any full development of the merits of this theme; but yet, in the closing one of a series of
reports, partaking somewhat of the nature of a summary of former arguments, an
omission of this topic would suggest to the comprehensive mind the idea of
incompleteness.
That the affairs of a great nation or state are exceedingly complicated and momentous, no
one will dispute. Nor will it be questioned that the degree of intelligence that
superintends, should be proportioned to the magnitude of the interests superintended. He
who scoops out a wooden dish needs less skill than the maker of a steam-engine or a
telescope. The dealer in small wares requires less knowledge than the merchant who
exports and imports to and from all quarters of the globe. An ambassador cannot execute
his functions with the stock of attainments or of talents sufficient for a parish clerk.
Indeed, it is clear, that the want of adequate intelligence,--of intelligence commensurate
with the nature of the duties to be performed,--will bring ruin or disaster upon any
department. A merchant loses his intelligence, and he becomes a bankrupt. A lawyer
loses his intelligence, and he forfeits all the interests of his clients. Intelligence abandons
a physician, and his patients die, with more than the pains of natural dissolution. Should
judges upon the bench be bereft of this guide, what havoc would be made of the property
and the innocence of men! Let this counsellor be taken from executive officers, and the
penalties due to the wicked would be visited upon the righteous, while the rewards and
immunities of the righteous would be bestowed upon the guilty. And so, should
intelligence desert the halls of legislation, weakness, rashness, contradiction, and error
would glare out from every page of the statute book. Now, as a republican government
represents almost all interests, whether social, civil or military, the necessity of a degree
of intelligence adequate to the due administration of them all, is so self-evident, that a
bare statement is the best argument.
But in the possession of this attribute of intelligence, elective legislators will never far
surpass their electors. By a natural law, like that which regulates the equilibrium of fluids,
elector and elected, appointer and appointee, tend to the same level. It is not more certain
that a wise and enlightened constituency will refuse to invest a reckless and profligate
man with office, or discard him if accidentally chosen, than it is that a foolish or immoral
constituency will discard or eject a wise man. This law of assimilation, between the
choosers and the chosen, results, not only from the fact that the voter originally selects
his representative according to the affinities of good or of ill, of wisdom or of folly,
which exist between them; but if the legislator enacts or favors a law which is too wise
for the constituent to understand, or too just for him to approve, the next election will set
him aside as certainly as if he had made open merchandise of the dearest interests of the
people, by perjury and for a bribe. And if the infinitely Just and Good, in giving laws to
the Jews, recognized the "hardness of their hearts," how much more will an earthly ruler
recognize the baseness or wickedness of the people, when his heart is as hard as theirs! In
a republican government, legislators are a mirror reflecting the moral countenance of
their constituents. And hence it is, that the establishment of a republican government,
without well-appointed and efficient means for the universal education of the people, is
the most rash and fool-hardy experiment ever tried by man. Its fatal results may not be
immediately developed,--they may not follow as the thunder follows the lightning,--for
time is an element in maturing them, and the calamity is too great to be prepared in a day;
but, like the slow-accumulating avalanche, they will grow more terrific by delay, and, at
length, though it may be at a late hour, will overwhelm with ruin whatever lies athwart
their path. It may be an easy thing to make a Republic; but it is a very laborious thing to
make Republicans; and woe to the republic that rests upon no better foundations than
ignorance, selfishness, and passion. Such a Republic may grow in numbers and in wealth.
As an avaricious man adds acres to his lands, so its rapacious government may increase
its own darkness by annexing provinces and states to its ignorant domain. Its armies may
be invincible, and its fleets may strike terror into nations on the opposite sides of the
globe, at the same hour. Vast in its extent, and enriched with all the prodigality of nature,
it may possess every capacity and opportunity of being great, and of doing good. But if
such a Republic be devoid of intelligence, it will only the more closely resemble an
obscene giant who has waxed strong in his youth, and grown wanton in his strength;
whose brain has been developed only in the region of the appetites and passions, and not
in the organs of reason and conscience; and who, therefore, is boastful of his bulk alone,
and glories in the weight of his heel and in the destruction of his arm. Such a Republic,
with all its noble capacities for beneficence, will rush with the speed of a whirlwind to an
ignominious end; and all good men of after-times would be fain to weep over its downfall,
did not their scorn and contempt at its folly and its wickedness, repress all sorrow for its
fate. . . .
However elevated the moral character of a constituency may be; however well informed
in matters of general science or history, yet they must, if citizens of a Republic,
understand something of the true nature and functions of the government under which
they live. That any one who is to participate in the government of a country, when he
becomes a man, should receive no instruction respecting the nature and functions of the
government he is afterwards to administer, is a political solecism. In all nations, hardly
excepting the most rude and barbarous, the future sovereign receives some training which
is supposed to fit him for the exercise of the powers and duties of his anticipated station.
Where, by force of law, the government devolves upon the heir, while yet in a state of
legal infancy, some regency, or other substitute, is appointed, to act in his stead, until his
arrival at mature age; and, in the meantime, he is subjected to such a course of study and
discipline, as will tend to prepare him, according to the political theory of the time and
the place, to assume the reins of authority at the appointed age. If, in England, or in the
most enlightened European monarchies, it would be a proof of restored barbarism, to
permit the future sovereign to grow up without any knowledge of his duties,--and who
can doubt that it would be such a proof,--then, surely, it would be not less a proof of
restored, or of never-removed barbarism, amongst us, to empower any individual to use
the elective franchise, without preparing him for so momentous a trust. Hence, the
constitution of the United States, and of our own State, should be made a study in our
Public Schools. The partition of the powers of government into the three co-ordinate
branches,--legislative, judicial, and executive,--with the duties appropriately devolving
upon each; the mode of electing or of appointing all officers, with the reason on which it
was founded; and, especially, the duty of every citizen, in a government of laws, to
appeal to the courts for redress, in all cases of alleged wrong, instead of undertaking to
vindicate his own rights by his own arm; and, in a government where the people are the
acknowledged sources of power, the duty of changing laws and rulers by an appeal to the
ballot, and not by rebellion, should be taught to all the children until they are fully
understood.
Had the obligations of the future citizen been sedulously inculcated upon all the children
of this Republic, would the patriot have had to mourn over so many instances, where the
voter, not being able to accomplish his purpose by voting, has proceeded to accomplish it
by violence; where, agreeing with his fellow-citizens, to use the machinery of the ballot,
he makes a tacit reservation, that, if that machinery does not move according to his
pleasure, he will wrest or break it? If the responsibleness and value of the elective
franchise were duly appreciated, the day of our State and National elections would be
among the most solemn and religious days in the calendar. Men would approach them,
not only with preparation and solicitude, but with the sobriety and solemnity, with which
discreet and religious-minded men meet the great crises of life. No man would throw
away his vote, through caprice or wantonness, any more than he would throw away his
estate, or sell his family into bondage. No man would cast his vote through malice or
revenge, any more than a good surgeon would amputate a limb, or a good navigator sail
through perilous straits, under the same criminal passions.
But, perhaps, it will be objected, that the constitution is subject to different readings, or
that the policy of different administrations has become the subject of party strife; and,
therefore, if any thing of constitutional or political law is introduced into our schools,
there is danger that teachers will be chosen on account of their affinities to this or that
political party; or that teachers will feign affinities which they do not feel, in order that
they may be chosen; and so each schoolroom will at length become a miniature political
club-room, exploding with political resolves, or flaming out with political addresses,
prepared, by beardless boys, in scarcely legible hand-writing, and in worse grammar.
With the most limited exercise of discretion, all apprehensions of this kind are wholly
groundless. There are different readings of the constitution, it is true; and there are
partisan topics which agitate the country from side to side; but the controverted points,
compared with those about which there is no dispute, do not bear the proportion of one to
a hundred. And what is more, no man is qualified, or can be qualified, to discuss the
disputable questions, unless previously and thoroughly versed in those questions, about
which there is no dispute. In the terms and principles common to all, and recognized by
all, is to be found the only common medium of language and of idea, by which the parties
can become intelligible to each other; and there, too, is the only common ground, whence
the arguments of the disputants can be drawn.
It is obvious, on the other hand, that if the tempest of political strife were to be let loose
upon our Common Schools, they would be overwhelmed with sudden ruin. Let it be once
understood, that the schoolroom is a legitimate theatre for party politics, and with what
violence will hostile partisans struggle to gain possession of the stage, and to play their
parts upon it! Nor will the stage be the only scene of gladiatorial contests. These will rage
in all the avenues that lead to it. A preliminary advantage, indispensable to ultimate
success, will be the appointment of a teacher of the true faith. As the great majority of the
schools in the State are now organized, this can be done only by electing a prudential
committee, who will make what he calls political soundness paramount to all other
considerations of fitness. Thus, after petty skirmishings among neighbors, the fierce
encounter will begin in the district's primary assembly,--in the schoolroom itself. This
contest being over, the election of the superintending, or town's committee, must be
determined in the same way, and this will bring together the combustibles of each district,
to burn with an intenser and a more devouring flame, in the town meeting. It is very
possible, nay, not at all improbable, that the town may be of one political complexion,
while a majority of the districts are of the opposite. Who shall moderate the fury of these
conflicting elements, when they rage against each other; and who shall save the dearest
interests of the children from being consumed in the fierce combustion? If parents find
that their children are indoctrinated into what they call political heresies, will they not
withdraw them from the school; and, if they withdraw them from the school, will they not
resist all appropriations to support a school from which they derive no benefit?
But, could the schools, themselves, survive these dangers for a single year, it would be
only to encounter others still more perilous. Why should not the same infection that
poisons all the relations of the schoolroom, spread itself abroad, and mingle with all
questions of external organization and arrangement? Why should not political hostility
cause the dismemberment of districts, already too small; or, what would work equal
injury, prevent the union of districts, whose power of usefulness would be doubled by a
combination of their resources? What better could be expected, than that one set of
school books should be expelled, and another introduced, as they might be supposed,
however remotely, to favor one party or the other; or, as the authors of the books might
belong to one party or the other? And who could rely upon the reports, or even the
statistics of a committee, chosen by partisan votes, goaded on by partisan impulses, and
responsible to partisan domination; and this, too, without any opportunity of control or
check from the minority? Nay, if the schools could survive long enough to meet the crisis,
why should not any and every measure be taken, either to maintain an existing political
ascendancy, or to recover a lost one, in a school district, or in a town, which has even
been taken by unscrupulous politicians, to maintain or to recover an ascendancy at the
polls? Into a district, or into a town, voters may be introduced from abroad, to turn the
scale. An employer may dismiss the employed, for their refusal to submit to his dictation;
or make the bread that is given to the poor man's children, perform the double office of
payment for labor to be performed, and of a bribe for principle to be surrendered. And,
beyond all this, if the imagination can conceive any thing more deplorable than this, what
kind of political doctrines would be administered to the children, amid the vicissitudes of
party domination,--their alternations of triumph and defeat? This year, under the
ascendancy of one side, the constitution declares one thing: and commentaries, glosses,
and the authority of distinguished names, all ratify and confirm its decisions. But victory
is a fickle goddess. Next year, the vanquished triumph; and constitution, gloss, and
authority, make that sound doctrine, which was pestilent error before, and that false,
which was true. Right and wrong have changed sides. The children must now join in
chorus to denounce what they had been taught to reverence before, and to reverence what
they had been taught to denounce. In the mean time, those great principles, which,
according to Cicero, are the same at Rome and at Athens, the same now and forever;--and
which, according to Hooker, have their seat in the bosom of God, become the fittest
emblems of chance and change.
Long, however, before this series of calamities would exhaust itself upon our schools,
these schools themselves would cease to be. The plough-share would have turned up their
foundations. Their history would have been brought to a close,--a glorious and ascending
history, until struck down by the hand of political parricide; then, suddenly falling with a
double ruin,--with death, and with ignominy. But to avoid such a catastrophe, shall all
teaching, relative to the nature of our government, be banished from our schools; and
shall our children be permitted to grow up in entire ignorance of the political history of
their country? In the schools of a republic, shall the children be left without any distinct
knowledge of the nature of a republican government; or only with such knowledge as
they may pick up from angry political discussions, or from party newspapers; from
caucus speeches, or Fourth of July orations,--the Apocrypha of Apocrypha?
Surely, between these extremes, there must be a medium not difficult to be found. And is
not this the middle course, which all sensible and judicious men, all patriots, and all
genuine republicans, must approve?--namely, that those articles in the creed of
republicanism, which are accepted by all, believed in by all, and which form the common
basis of our political faith, shall be taught to all. But when the teacher, in the course of his
lessons or lectures on the fundamental law, arrives at a controverted text, he is either to
read it without comment or remark; or, at most, he is only to say that the passage is the
subject of disputation, and that the schoolroom is neither the tribunal to adjudicate, nor
the forum to discuss it.
Such being the rule established by common consent, and such the practice, observed with
fidelity under it, it will come to be universally understood, that political proselytism is no
function of the school; but that all indoctrination into matters of controversy between
hostile political parties is to be elsewhere sought for, and elsewhere imparted. Thus, may
all the children of the Commonwealth receive instruction in the great essentials of
political knowledge,--in those elementary ideas without which they will never be able to
investigate more recondite and debatable questions;--thus, will the only practicable
method be adopted for discovering new truths, and for discarding,--instead of
perpetuating,--old errors; and thus, too, will that pernicious race of intolerant zealots,
whose whole faith may be summed up in two articles,--that they, themselves, are always
infallibly right, and that all dissenters are certainly wrong,--be extinguished,-extinguished, not by violence, nor by proscription, but by the more copious inflowing of
the light of truth.
Source: Lawrence A. Cremin, ed., The Republic and the School: Horace Mann on the
Education of Free Men (1957), 79-80, 84-97.
Seneca Falls Declaration (1848)
One of the reform movements that arose during the "freedom's ferment" of the early
nineteenth century was a drive for greater rights for women, especially in the political
area. Women were heavily involved in many of the reform movements of this time, but
they discovered that while they did much of the drudge work, with few exceptions (such
as Dorothea Dix) they could not take leadership roles or lobby openly for their goals.
Politically, women were to be neither seen nor heard. The drudgery of daily housework
and its deadening impact on the mind also struck some women as unfair.
The convention at Seneca Falls, New York, in July 1848, was organized by Lucretia Mott
and Elizabeth Cady Stanton, two Quakers whose concern for women's rights was aroused
when Mott, as a woman, was denied a seat at an international antislavery meeting in
London. The Seneca Falls meeting attracted 240 sympathizers, including forty men,
among them the famed former slave and abolitionist leader, Frederick Douglass. The
delegates adopted a statement, deliberately modeled on the Declaration of Inde-pendence,
as well as a series of resolu-tions calling for women's suffrage and the reform of marital
and property laws that kept women in an inferior status.
Very little in the way of progress came from the Seneca Falls Declaration, although it
would serve for the next seventy years as the goal for which the suffrage movement
strove. Women's suffrage and nearly all of the other reforms of this era were swallowed
up by the single issue of slavery and its abolition, and women did not receive the right to
vote until the adoption of the Nineteenth Amendment to the Constitution in 1920.
For further reading: Ellen C. DuBois, Feminism and Suffrage (1978); Eleanor Flexner,
Century of Struggle (rev. ed. 1975); and Lois W. Banner, Elizabeth Cady Stanton (1980).
Seneca Falls Declaration
When, in the course of human events, it becomes necessary for one portion of the family
of man to assume among the people of the earth a position different from that which they
have hitherto occupied, but one 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 that impel them to such a course.
We hold these truths to be self-evident: that all men and women are created equal; that
they are endowed by their Creator with certain inalienable rights; that among these are
life, liberty, and the pursuit of happiness; that to secure these rights governments are
instituted, deriving their just powers from the consent of the governed. Whenever any
form of government becomes destructive of these ends, it is the right of those who suffer
from it to refuse allegiance to it, and to insist upon the institution of a 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 shown that mankind are more disposed to
suffer, while evils are sufferable, than to right themselves by abolishing the forms to
which they were 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 duty to throw off such government, and to provide new guards for their future
security. Such has been the patient sufferance of the women under this government, and
such is now the necessity which constrains them to demand the equal station to which
they are entitled.
The history of mankind is a history of repeated injuries and usurpations on the part of
man toward woman, having in direct object the establishment of an absolute tyranny over
her. To prove this, let facts be submitted to a candid world.
He has never permitted her to exercise her inalienable right to the elective franchise.
He has compelled her to submit to laws, in the formation of which she had no voice.
He has withheld from her rights which are given to the most ignorant and degraded men-both natives and foreigners.
Having deprived her of this first right of a citizen, the elective franchise, thereby leaving
her without representation in the halls of legislation, he has oppressed her on all sides.
He has made her, if married, in the eye of the law, civilly dead.
He has taken from her all right in property, even to the wages she earns.
He has made her, morally, an irresponsible being, as she can commit many crimes with
impunity, provided they be done in the presence of her husband. In the covenant of
marriage, she is compelled to promise obedience to her husband, he becoming to all
intents and purposes, her master--the law giving him power to deprive her of her liberty,
and to administer chastisement.
He has so framed the laws of divorce, as to what shall be the proper causes, and in case of
separation, to whom the guardianship of the children shall be given, as to be wholly
regardless of the happiness of women--the law, in all cases, going upon a false
supposition of the supremacy of man, and giving all power into his hands.
After depriving her of all rights as a married woman, if single, and the owner of property,
he has taxed her to support a government which recognizes her only when her property
can be made profitable to it.
He has monopolized nearly all the profitable employments, and from those she is
permitted to follow, she receives but a scanty remuneration. He closes against her all the
avenues to wealth and distinction which he considers most honorable to himself. As a
teacher of theology, medicine, or law, she is not known.
He has denied her the facilities for obtaining a thorough education, all colleges being
closed against her.
He allows her in Church, as well as State, but a subordinate position, claiming Apostolic
authority for her exclusion from the ministry, and, with some exceptions, from any public
participation in the affairs of the Church.
He has created a false public sentiment by giving to the world a different code of morals
for men and women, by which moral delinquencies which exclude women from society,
are not only tolerated, but deemed of little account in man.
He has usurped the prerogative of Jehovah himself, claiming it as his right to assign for
her a sphere of action, when that belongs to her conscience and to her God.
He has endeavored, in every way that he could, to destroy her confidence in her own
powers, to lessen her self-respect, and to make her willing to lead a dependent and abject
life.
Now, in view of this entire disfranchisement of one-half the people of this country, their
social and religious degradation--in view of the unjust laws above mentioned, and
because women do feel themselves aggrieved, oppressed, and fraudulently deprived of
their most sacred rights, we insist that they have immediate admission to all the rights and
privileges which belong to them as citizens of the United States.
In entering upon the great work before us, we anticipate no small amount of
misconception, misrepresentation, and ridicule; but we shall use every instrumentality
within our power to effect our object. We shall employ agents, circulate tracts, petition
the State and National legislatures, and endeavor to enlist the pulpit and the press in our
behalf. We hope this Convention will be followed by a series of Conventions embracing
every part of the country.
Source: E.C. Stanton, S.B. Anthony and M.J. Gage, eds., History of Women's Suffrage,
vol. 1 (1887), 70.
PART IV: THE CRISIS OF THE UNION
In 1619 a ship put in at Jamestown, and sold twenty Negroes it had brought over from
Africa as part of its cargo. Bound labor was common in all the colonies because of the
intense labor shortage. Many settlers earned their passage to the New World, and that of
their families, by indenturing themselves for a term of years, usually seven, after which
they would be free. At least some of the early Africans were treated as indentured
servants, because there are records of free blacks in the Chesapeake area in the 1650s.
But about that time the white colonists determined that blacks would be slaves durante
vita (for the term of their lives), and their children would be slaves as well.
Slaves became the backbone of the southern plantation system. The southern colonies
relied on certain cash crops such as tobacco, rice and indigo, all of which were labor
intensive, and slavery provided the least expensive and most reliable source of labor. At
the time of the American Revolution, there were about 500,000 slaves in the thirteen
colonies, out of a total population of roughly three million.
By then slavery, which had never been as extensive in the northern colonies, had begun
to die out. Slavery did not make economic sense in the northern economies, and many
northerners objected to the forced bondage of human beings. Some white southerners
also looked forward to the end of slavery, and in fact much of the early abolitionist
sentiment could be found in the South, not in the North. The invention of the cotton gin
in the early nineteenth century made cotton an extremely profitable crop, however, and
slavery continued to grow. By 1860 there were nearly four million black men and women
in bondage.
At the Second Continental Congress there had been some discussion about slavery. How,
after all, could the Congress declare that "All men are created equal" when Americans
kept some men and women as slaves? But the agenda before the Congress was
independence of the colonies from Great Britain, not the emancipation of slaves, and the
northern delegates agreed to mute their concerns about slavery in order to achieve a
united front against the king.
Similarly, at the Constitutional Convention in 1787, the delegates had come to
Philadelphia to design a new system of government and not to abolish bondage. Slavery
played practically no role in the debate, and those sections of the Constitution dealing
with slaves (who are never identified as such), such as taxation, importation and counting
for purposes of state representation, were quickly negotiated.
One reason slavery remained a mute issue was because in the eighteenth century human
bondage was fairly widespread. Even though serfdom had disappeared from most of
Europe, the notion of enslaving humans had roots going back many centuries. The Bible
mentioned slavery as widespread, and did not condemn the practice. The Enlightenment
writers ignored the issue, and the movement to abolish slavery did not take firm hold in
England until the end of the eighteenth century.
Southerners moving westward took their slaves with them, and in 1819, when Missouri
applied for entry into the Union, it did so as a slave state. In what struck many people,
both North and South, as an amazing development, the House of Representatives refused
admission, and instead passed a resolution calling on Missouri to end the practice. When
Thomas Jefferson heard this news, he wrote to a friend that it struck him "as a firebell in
the night," and he "considered it at once as the [death] knell of the Union."
Henry Clay managed to work out what came to be known as the Missouri Compromise,
which permitted Missouri to enter the Union as a slave state but prohibited slavery in the
rest of the immense Louisiana Purchase. But the issue would not go away, and within a
relatively short time pressure began to build in the northern states to prevent the spread of
slavery into the western territories, while some groups began agitating to end slavery in
the United States altogether.
The southern states reacted angrily to this attack on what they termed their "peculiar
institution." By the nineteenth century slavery served far more than demands for labor;
bondage based on race had become essential to the southern caste system. It served as a
tie between small farmers and the wealthy plantation owners, and as long as even poor
whites could look down on black slaves, class differences could be glossed over.
As northern agitation increased, southerners argued that slavery was no one's business
except their own, and held up the banner of states' rights to deflect abolitionist demands.
What went on within their own borders was the business of each individual state, and not
of any other state or of the national government.
But southerners wanted additional territory in which to expand their cotton holdings, they
wanted the federal government to secure Texas for settlement by slaveholders, and they
wanted a strict fugitive slave law authorizing the federal government to help capture and
return runaway slaves. And they claimed all this as their right under the Constitution.
The result was the gradual deterioration of the ties that bound the country together. As
abolitionist sentiment increased in the North, secessionist demands rose in the South. By
the late 1850s, the United States was, in Abraham Lincoln's phrase, a "house divided,"
and on the verge of collapse.
When the southern states seceded from the Union after Lincoln's election as president in
1860, many voices in the North urged that they be let go; the remaining nation would be
better without them, since it would be free of the taint of human bondage. But Lincoln
and many other northerners believed that the Union had to be preserved, and the Civil
War began as an effort to keep the Union together.
But slavery, which had led to this crisis, could not be ignored, and eventually the war
became not just a crusade to save the Union, but one to end the "peculiar institution" as
well. For Lincoln at Gettysburg, as well as for soldiers in the field, the fight had become a
struggle for democracy, and for a while the outcome of that struggle remained in doubt.
War, even for noble purposes, creates strains upon a democratic society. Behavior that
can be tolerated in peacetime, such as severe criticism of the government, is seen as
threatening when the nation itself is at peril. The Civil War, fought for democracy and
freedom, also had its dark side of intolerance and the invasion of civil liberties. In the end,
the Union emerged stronger than before, with slavery abolished and democracy
enthroned. As we shall see in subsequent sections, however, the issues were not fully
resolved.
THE AMERICAN ANTI-SLAVERY SOCIETY
The furor that had been aroused over the Missouri Compromise quieted down
considerably in the 1820s, only to be brought back to life by a series of events at the end
of the decade. Serious debates over abolition took place in the Virginia legislature in
1829 and 1831; in the North discussion began about the possibility of freeing the slaves
and then resettling them back in Africa (a proposal that led to the founding of Liberia).
Agitation increased with the publication of David Walker's Appeal to the Colored
Citizens of the World in 1829, Nat Turner's rebellion in 1831 and Andrew Jackson's
handling of the nullification crisis that same year.
The Turner rebellion was only one of about 200 slave uprisings between 1776 and 1860,
but it was one of the bloodiest, and thus struck fear in the hearts of many white
southerners. Nat Turner and a handful of slaves spontaneously launched a rebellion in
Southampton County, Virginia, in August 1831. They moved from farm to farm,
indiscriminately killing whites along the way and picking up additional slaves. By the
time the militia put down the insurrection, more than eighty slaves had joined the
rebellion, and sixty whites lay dead. While the uprising led some southerners to consider
abolition, the reaction in all southern states was to tighten the laws governing slave
behavior.
That same year, South Carolina's opposition to the federal tariff led the legislature to
declare that the law was null and void in the state, and the state's leaders spoke of using
the militia to prevent federal customs agents from collecting the tax. President Andrew
Jackson swept aside the states' rights arguments and threatened to use the army to enforce
federal laws. In the face of Jackson's determination, the state backed down, but the
episode raised fears throughout the South that it was only a matter of time before
Congress would begin to tamper with slavery.
Southern anxiety increased in 1833 with the founding of the American Anti-Slavery
Society in Philadelphia. Led by the fiery abolitionist William Lloyd Garrison, the Society
pledged to end slavery in the United States. The sentiments adopted at the founding
meeting established the basic argument of the Society for the next three decades, namely,
that slavery was illegal, if not under the Constitution (which Garrison had damned as "a
covenant with hell"), then certainly under natural law.
Membership in the new organization mushroomed. By 1835 there were more than 400
chapters and by 1838 the number had grown to 1,350, with more than 250,000 members.
The growth of the abolition movement was due in part to the similarity between it and
other reform movements of the era. Abolitionists, like other reformers, were calling for a
freeing of the human spirit and the elimination of artificial barriers to self-fulfillment.
Abolition turned out to be the most important of all the reforms of the Jacksonian era, but
its success would put the Union itself at risk.
For further reading: Russell B. Nye, William Lloyd Garrison and Humanitarian
Reformers (1955); Louis Filler, The Crusade Against Slavery (1960); Martin Duberman,
ed., The Anti-Slavery Vanguard (1965); and Aileen Kraditor, Means and Ends in
American Abolitionism: Garrison and His Critics (1967).
DECLARATION OF SENTIMENTS (1833)
We have met together for the achievement of an enterprise, without which that of our
fathers is incomplete; and which, for its magnitude, solemnity, and probable results upon
the destiny of the world, as far transcends theirs as moral truth does physical force.
In purity of motive, in earnestness of zeal, in decision of purpose, in intrepidity of action,
in steadfastness of faith, in sincerity of spirit, we would not be inferior to them....
Their grievances, great as they were, were trifling in comparison with the wrongs and
sufferings of those for whom we plead. Our fathers were never slaves -- never bought and
sold like cattle -- never shut out from the light of knowledge and religion -- never
subjected to the lash of brutal taskmasters.
But those, for whose emancipation we are striving -- constituting at the present time at
least one-sixth part of our countrymen -- are recognized by law, and treated by their
fellow-beings, as brute beasts; are plundered daily of the fruits of their toil without
redress; really enjoy no constitutional nor legal protection from licentious and murderous
outrages upon their persons; and are ruthlessly torn asunder -- the tender babe from the
arms of its frantic mother -- the heartbroken wife from her weeping husband -- at the
caprice or pleasure of irresponsible tyrants. For the crime of having a dark complexion,
they suffer the pangs of hunger, the infliction of stripes, the ignominy of brutal servitude.
They are kept in heathenish darkness by laws expressly enacted to make their instruction
a criminal offence.
These are the prominent circumstances in the condition of more than two million people,
the proof of which may be found in thousands of indisputable facts, and in the laws of the
slave-holding States.
Hence we maintain -- that, in view of the civil and religious privileges of this nation, the
guilt of its oppression is unequalled by any other on the face of the earth; and, therefore,
that it is bound to repent instantly, to undo the heavy burdens, and to let the oppressed go
free...
It is piracy to buy or steal a native African, and subject him to servitude. Surely, the sin is
as great to enslave an American as an African.
Therefore we believe and affirm -- that there is no difference, in principle, between the
African slave trade and American slavery:
That every American citizen, who detains a human being in involuntary bondage as his
property, is, according to Scripture, (Ex. xxi, 16,) a manstealer.
That the slaves ought instantly to be set free, and brought under the protection of law:
That if they had lived from the time of Pharaoh down to the present period, and had been
entailed through successive generations, their right to be free could never have been
alienated, but their claims would have constantly risen in solemnity:
That all those laws which are now in force, admitting the right of slavery, are therefore,
before God, utterly null and void; being an audacious usurpation of the Divine
prerogative, a daring infringement on the law of nature, a base overthrow of the very
foundations of the social compact, a complete extinction of all the relations, endearments
and obligations of mankind, and a presumptuous transgression of all the holy
commandments; and that therefore they ought instantly to be abrogated.
We further believe and affirm -- that all persons of color, who possess the qualifications
which are demanded of others, ought to be admitted forthwith to the enjoyment of the
same privileges, and the exercise of the same prerogatives, as others; and that the paths of
preferment, of wealth and of intelligence, should be opened as widely to them as to
persons of a white complexion.
We maintain that no compensation should be given to the planters emancipating their
slaves:
Because it would be a surrender of the great fundamental principle, that man cannot hold
property in man:
Because slavery is a crime, and therefore is not an article to be sold:
Because the holders of slaves are not the just proprietors of what they claim; freeing the
slave is not depriving them of property, but restoring it to its rightful owner; it is not
wronging the master, but righting the slave -- restoring him to himself:
Because immediate and general emancipation would only destroy nominal, not real
property; it would not amputate a limb or break a bone of the slaves, but by infusing
motives into their breasts, would make them doubly valuable to the masters as free
laborers; and
Because, if compensation is to be given at all, it should be given to the outraged and
guiltless slaves, and not to those who have plundered and abused them.
We regard as delusive, cruel and dangerous, any scheme of expatriation which pretends
to aid, either directly or indirectly, in the emancipation of the slaves, or to be a substitute
for the immediate and total abolition of slavery.
We fully and unanimously recognize the sovereignty of each State, to legislate
exclusively on the subject of the slavery which is tolerated within its limits; we concede
that Congress, under the present national compact, has no right to interfere with any of
the slave States, in relation to this momentous subject:
But we maintain that Congress has a right, and is solemnly bound, to suppress the
domestic slave trade between the several States, and to abolish slavery in those portions
of our territory which the Constitution has placed under its exclusive jurisdiction.
We also maintain that there are, at the present time, the highest obligations resting upon
the people of the free States to remove slavery by moral and political action, as
prescribed in the Constitution of the United States. They are now living under a pledge of
their tremendous physical force, to fasten the galling fetters of tyranny upon the limbs of
millions in the Southern States; they are liable to be called at any moment to suppress a
general insurrection of the slaves; they authorize the slave owner to vote for three-fifths
of his slaves as property, and thus enable him to perpetuate his oppression; they support a
standing army at the South for its protection; and they seize the slave, who has escaped
into their territories, and send him back to be tortured by an enraged master or a brutal
driver. This relation to slavery is criminal, and full of danger: It must be broken up.
These are our views and principles -- these our designs and measures. With entire
confidence in the overruling justice of God, we plant ourselves upon the Declaration of
our Independence and the truths of Divine Revelation, as upon the Everlasting Rock.
HENRY DAVID THOREAU
In 1823, in order to encourage immigration, the government of Mexico gave Stephen
Austin a large grant of land, and Austin brought 300 families to settle north of the Rio
Grande River. By 1835 the Austin colony had 20,000 settlers; an additional 15,000
Americans had also settled in other parts of Texas. Most of the settlers were from the
South, and although slavery was contrary to Mexican law, the Americans brought their
bondsmen with them. When the Mexican government under General Santa Ana tried to
impose tighter control on the American colonies, they rebelled, and in 1836 proclaimed
their independence.
The Jackson administration recognized the Republic of Texas on March 3, 1837, but the
new nation wanted to become part of the United States. All the settlers saw themselves as
Americans, but because Texas allowed slavery, the North objected, and Texas became a
bone of political contention. Both North and South believed that the "big country" could
be divided into as many as five new slave states, an end fervently desired by the South
and equally opposed by the North since it would upset the precarious balance between
free and slave states. With the expansionists unable to secure a majority in the Congress,
the issue hung fire for several years while thousands of southerners, ruined by the Panic
of 1837, emigrated to Texas, bringing their slaves with them.
Finally, at the end of the Tyler administration, a simple majority in Congress, employing
the sham1 that Texas had once been part of the United States, voted to "re-annex" Texas.
But a number of issues remained to be resolved, including fixing the boundary between
Texas and Mexico. Moreover, the new president, James K. Polk, had been elected on an
expansionist platform, and he lost no time in provoking a war with Mexico.
Although the United States easily won the war and took away huge chunks of Mexican
territory, including California and much of what is now the American Southwest, the war
was not popular in much of the North. Abraham Lincoln, then a young congressman from
Illinois, spoke out against it in the House of Representatives. And in New England,
Henry David Thoreau refused to pay a poll tax as a symbol of his opposition to the war,
and spent a night in jail as a result. The next day a friend paid the fee, much to Thoreau's
regret, and he was released.
Thoreau worked at a number of jobs, including surveyer, handyman, and Emerson's
editorial assistant for the journal Dial, for which he wrote extensively. He is best
remembered for his superb essays on nature, especially the classic Walden (1854). But
the essay in which he explored what he considered the honest citizen's options when
facing immoral acts of government became a landmark in political thought. From his idea
of civil disobedience grew the theory and practice of passive resistance advocated by
Gandhi and Martin Luther King, Jr. In the essay one finds not only the philosophy of a
man determined to live an honest life, but also the revulsion that many less eloquent
Americans were beginning to feel toward slavery.
Footnote 1: Under the Constitution, treaties must be ratified by a two-thirds vote in the
Senate, and there were sufficient anti-expansionist and anti-slavery votes in that house to
prevent ratification. However, there were enough southern and western expansionist
votes for a majority vote, and by claiming that Texas had once been part of the Union
(which it never had been), the Tyler administration was able to push through an
"annexation resolution" requiring only a simple majority in both the Senate and the
House of Representatives.
For further reading: Edward Wagenknecht, Henry David Thoreau: What Manner of Man?
(1981); K. Jack Bauer, The Mexican-American War, 1846-1848 (1974); and John H.
Schroeder, Mr. Polk's War: American Opposition and Dissent (1973).
CIVIL DISOBEDIENCE
I heartily accept the motto, -- "That government is best which governs least"; and I
should like to see it acted up to more readily and systematically. Carried out, it finally
amounts to this, which also I believe, -- "That government is best which governs not at
all"; and when men are prepared for it, that will be the kind of government which they
will have. Government is at best but an expedient; but most governments are usually, and
all governments are sometimes, inexpedient. The objections which have been brought
against a standing army, and they are many and weighty, and deserve to prevail, may also
at last be brought against a standing government. The standing army is only an arm of the
standing government. The government itself, which is only the mode which the people
have chosen to execute their will, is equally liable to be abused and perverted before the
people can act through it. Witness the present Mexican war, the work of comparatively a
few individuals using the standing government as their tool; for, in the outset, the people
would not have consented to this measure.
This American government, -- what is it but a tradition, though a recent one, endeavoring
to transmit itself unimpaired to posterity, but each instant losing some of its integrity? It
has not the vitality and force of a single living man; for a single man can bend it to his
will. It is a sort of wooden gun to the people themselves; and, if ever they should use it in
earnest as a real one against each other, it will surely split. But it is not the less necessary
for this; for the people must have some complicated machinery or other, and hear its din,
to satisfy that idea of government which they have. Governments show thus how
successfully men can be imposed on, even impose on themselves, for their own
advantage. It is excellent, we must all allow, yet this government never of itself furthered
any enterprise, but by the alacrity with which it got out of its way. It does not keep the
country free. It does not settle the West. It does not educate. The character inherent in the
American people has done all that has been accomplished; and it would have done
somewhat more, if the government had not sometimes got in its way. For government is
an expedient by which men would fain succeed in letting one another alone; and, as has
been said, when it is most expedient, the governed are most let alone by it. Trade and
commerce, if they were not made of India rubber, would never manage to bounce over
the obstacles which legislators are continually putting in their way; and, if one were to
judge these men wholly by the effects of their actions, and not partly by their intentions,
they would deserve to be classed and punished with those mischievous persons who put
obstructions on the railroads.
But, to speak practically and as a citizen, unlike those who call themselves nogovernment men, I ask for, not at once no government, but at once a better government.
Let every man make known what kind of government would command his respect, and
that will be one step toward obtaining it.
After all, the practical reason why, when the power is once in the hands of the people, a
majority are permitted, and for a long period continue, to rule, is not because they are
most likely to be in the right, nor because this seems fairest to the minority, but because
they are physically the strongest. But a government in which the majority rule in all cases
cannot be based on justice, even as far as men understand it. Can there not be a
government in which majorities do not virtually decide right and wrong, but conscience?
-- in which majorities decide only those questions to which the rule of expediency is
applicable? Must the citizen ever for a moment, or in the least degree, resign his
conscience to the legislator? Why has every man a conscience, then? I think that we
should be men first, and subjects afterward. It is not desirable to cultivate a respect for the
law, so much as for the right. The only obligation which I have a right to assume, is to do
at any time what I think right. It is truly enough said, that a corporation has no conscience;
but a corporation of conscientious men is a corporation with a conscience. Law never
made men a whit more just; and, by means of their respect for it, even the well-disposed
are daily made the agents of injustice. A common and natural result of an undue respect
for law is, that you may see a file of soldiers, colonel, captain, corporal, privates, powdermonkeys and all, marching in admirable order over hill and dale to the wars, against their
wills, aye, against their common sense and consciences, which makes it very steep
marching indeed, and produces a palpitation of the heart. They have no doubt that it is a
damnable business in which they are concerned; they are all peaceably inclined. Now,
what are they? Men at all? or small moveable forts and magazines, at the service of some
unscrupulous man in power? Visit the Navy Yard, and behold a marine, such a man as an
American government can make, or such as it can make a man with its black arts, a mere
shadow and reminiscence of humanity, a man laid out alive and standing, and already, as
one may say, buried under arms with funeral accompaniments, though it may be
Not a drum was heard, nor a funeral note, As his corpse to the ramparts we hurried; Not a
soldier discharged his farewell shot O'er the grave where our hero we buried.
The mass of men serve the State thus, not as men mainly, but as machines, with their
bodies. They are the standing army, and the militia, jailers, constables, posse comitatus,
etc. In most cases there is no free exercise whatever of the judgment or of the moral sense;
but they put themselves on a level with wood and earth and stones; and wooden men can
perhaps be manufactured that will serve the purpose as well. Such command no more
respect than men of straw, or a lump of dirt. They have the same sort of worth only as
horses and dogs. Yet such as these even are commonly esteemed good citizens. Others, as
most legislators, politicians, lawyers, ministers, and officeholders, serve the State chiefly
with their heads; and, as they rarely make any moral distinctions, they are as likely to
serve the devil, without intending it, as God. A very few, as heroes, patriots, martyrs,
reformers in the great sense, and men, serve the State with their consciences also, and so
necessarily resist it for the most part; and they are commonly treated by it as enemies. A
wise man will only be useful as a man, and will not submit to be "clay," and "stop a hole
to keep the wind away," but leave that office to his dust at least: -I am too high-born to be propertied, To be a secondary at control, Or useful serving-man
and instrument To any sovereign state throughout the world.
He who gives himself entirely to his fellowmen appears to them useless and selfish; but
he who gives himself partially to them is pronounced a benefactor and philanthropist.
How does it become a man to behave toward this American government to-day? I answer
that he cannot without disgrace be associated with it. I cannot for an instant recognize
that political organization as my government which is the slave's government also.
All men recognize the right of revolution; that is, the right to refuse allegiance to and to
resist the government, when its tyranny or its inefficiency are great and unendurable. But
almost all say that such is not the case now. But such was the case, they think, in the
Revolution of '75. If one were to tell me that this was a bad government because it taxed
certain foreign commodities brought to its ports, it is most probable that I should not
make an ado about it, for I can do without them: all machines have their friction; and
possibly this does enough good to counterbalance the evil. At any rate, it is a great evil to
make a stir about it. But when the friction comes to have its machine, and oppression and
robbery are organized, I say, let us not have such a machine any longer. In other words,
when a sixth of the population of a nation which has undertaken to be the refuge of
liberty are slaves, and a whole country is unjustly overrun and conquered by a foreign
army, and subjected to military law, I think that it is not too soon for honest men to rebel
and revolutionize. What makes this duty the more urgent is the fact, that the country so
overrun is not our own, but ours is the invading army.
Paley, a common authority with many on moral questions, in his chapter on the "Duty of
Submission to Civil Government," resolves all civil obligation into expediency; and he
proceeds to say, "that so long as the interest of the whole society requires it, that is, so
long as the established government cannot be resisted or changed without public
inconveniency, it is the will of God that the established government be obeyed, and no
longer." -- "This principle being admitted, the justice of every particular case of
resistance is reduced to a computation of the quantity of the danger and grievance on the
one side, and of the probability and expense of redressing it on the other." Of this, he says,
every man shall judge for himself. But Paley appears never to have contemplated those
cases to which the rule of expediency does not apply, in which a people, as well as an
individual, must do justice, cost what it may. If I have unjustly wrested a plank from a
drowning man, I must restore it to him though I drown myself. This, according to Paley,
would be inconvenient. But he that would save his life, in such a case, shall lose it. This
people must cease to hold slaves, and to make war on Mexico, though it cost them their
existence as a people.
In their practice, nations agree with Paley; but does any one think that Massachusetts
does exactly what is right at the present crisis?
A drab of state, a cloth-o'-silver slut, To have her train borne up, and her soul trail in the
dirt.
Practically speaking, the opponents to a reform in Massachusetts are not a hundred
thousand politicians at the South, but a hundred thousand merchants and farmers here,
who are more interested in commerce and agriculture than they are in humanity, and are
not prepared to do justice to the slave and to Mexico, cost what it may. I quarrel not with
far-off foes, but with those who, near at home, cooperate with, and do the bidding of
those far away, and without whom the latter would be harmless. We are accustomed to
say, that the mass of men are unprepared; but improvement is slow, because the few are
not materially wiser or better than the many. It is not so important that many should be as
good as you, as that there be some absolute goodness somewhere; for that will leaven the
whole lump. There are thousands who are in opinion opposed to slavery and to the war,
who yet in effect do nothing to put an end to them; who, esteeming themselves children
of Washington and Franklin, sit down with their hands in their pockets, and say that they
know not what to do, and do nothing; who even postpone the question of freedom to the
question of free-trade, and quietly read the prices-current along with the latest advices
from Mexico, after dinner, and, it may be, fall asleep over them both. What is the pricecurrent of an honest man and patriot to-day? They hesitate, and they regret, and
sometimes they petition; but they do nothing in earnest and with effect. They will wait,
well disposed, for others to remedy the evil, that they may no longer have it to regret. At
most, they give only a cheap vote, and a feeble countenance and Godspeed, to the right,
as it goes by them. There are nine hundred and ninety-nine patrons of virtue to one
virtuous man; but it is easier to deal with the real possessor of a thing than with the
temporary guardian of it.
All voting is a sort of gaming, like chequers or backgammon, with a slight moral tinge to
it, a playing with right and wrong, with moral questions; and betting naturally
accompanies it. The character of the voters is not staked. I cast my vote, perchance, as I
think right; but I am not vitally concerned that that right should prevail. I am willing to
leave it to the majority. Its obligation, therefore, never exceeds that of expediency. Even
voting for the right is doing nothing for it. It is only expressing to men feebly your desire
that it should prevail. A wise man will not leave the right to the mercy of chance, not
wish it to prevail through the power of the majority. There is but little virtue in the action
of masses of men. When the majority shall at length vote for the abolition of slavery, it
will be because they are indifferent to slavery, or because there is but little slavery left to
be abolished by their vote. They will then be the only slaves. Only his vote can hasten the
abolition of slavery who asserts his own freedom by his vote.
I hear of a convention to be held at Baltimore, or elsewhere, for the selection of a
candidate for the Presidency, made up chiefly of editors, and men who are politicians by
profession; but I think, what is it to any independent, intelligent, and respectable man
what decision they may come to, shall we not have the advantage of his wisdom and
honesty, nevertheless? Can we not count upon some independent votes? Are there not
many individuals in the country who do not attend conventions? But no: I find that the
respectable man, so called, has immediately drifted from his position, and despairs of his
country, when his country has more reason to despair of him. He forthwith adopts one of
the candidates thus selected as the only available one, thus proving that he is himself
available for any purposes of the demagogue. His vote is of no more worth than that of
any unprincipled foreigner or hireling native, who may have been bought. Oh for a man
who is a man, and, as my neighbor says, has a bone in his back which you cannot pass
your hand through! Our statistics are at fault: the population has been returned too large.
How many men are there to a square thousand miles in this country? Hardly one. Does
not America offer any inducement for men to settle here? The American has dwindled
into an Odd Fellow, -- one who may be known by the development of his organ of
gregariousness, and a manifest lack of intellect and cheerful self-reliance; whose first and
chief concern, on coming into the world, is to see that the alms-houses are in good repair;
and, before yet he has lawfully donned the virile garb, to collect a fund for the support of
the widows and orphans that may be; who, in short, ventures to live only by the aid of the
mutual insurance company, which has promised to bury him decently.
It is not a man's duty, as a matter of course, to devote himself to the eradication of any,
even the most enormous wrong; he may still properly have other concerns to engage him;
but it is his duty, at least, to wash his hands of it, and, if he gives it no thought longer, not
to give it practically his support. If I devote myself to other pursuits and contemplations, I
must first see, at least, that I do not pursue them sitting upon another man's shoulders. I
must get off him first, that he may pursue his contemplations too. See what gross
inconsistency is tolerated. I have heard some of my townsmen say, "I should like to have
them order me out to help put down an insurrection of the slaves, or to march to Mexico,
-- see if I would go"; and yet these very men have each, directly by their allegiance, and
so indirectly, at least, by their money, furnished a substitute. The soldier is applauded
who refuses to serve in an unjust war by those who do not refuse to sustain the unjust
government which makes the war; is applauded by those whose own act and authority he
disregards and sets at nought; as if the State were penitent to that degree that it hired one
to scourge it while it sinned, but not to that degree that it left off sinning for a moment.
Thus, under the name of order and civil government, we are all made at last to pay
homage to and support our own meanness. After the first blush of sin, comes its
indifference; and from immoral it becomes, as it were, unmoral, and not quite
unnecessary to that life which we have made.
The broadest and most prevalent error requires the most disinterested virtue to sustain it.
The slight reproach to which the virtue of patriotism is commonly liable, the noble are
most likely to incur. Those who, while they disapprove of the character and measures of a
government, yield to it their allegiance and support, are undoubtedly its most
conscientious supporters, and so frequently the most serious obstacles to reform. Some
are petitioning the State to dissolve the Union, to disregard the requisitions of the
President. Why do they not dissolve it themselves, -- the union between themselves and
the State, -- and refuse to pay their quota into its treasury? Do not they stand in the same
relation to the State, that the State does to the Union? And have not the same reasons
prevented the State from resisting the Union, which have prevented them from resisting
the State?
How can a man be satisfied to entertain an opinion merely, and enjoy it? Is there any
enjoyment in it, if his opinion is that he is aggrieved? If you are cheated out of a single
dollar by your neighbor, you do not rest satisfied with knowing that you are cheated, or
with saying that you are cheated, or even with petitioning him to pay you your due; but
you take effectual steps at once to obtain the full amount, and see that you are never
cheated again. Action from principle, -- the perception and the performance of right, -changes things and relations; it is essentially revolutionary, and does not consist wholly
with any thing which was. It not only divides states and churches, it divides families; aye,
it divides the individual, separating the diabolical in him from the divine.
Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them,
and obey them until we have succeeded, or shall we transgress them at once? Men
generally, under such a government as this, think that they ought to wait until they have
persuaded the majority to alter them. They think that, if they should resist, the remedy
would be worse than the evil. But it is the fault of the government itself that the remedy is
worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for
reform? Why does it not cherish its wise minority? Why does it cry and resist before it is
hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and
do better than it would have them? Why does it always crucify Christ, and
excommunicate Copernicus and Luther, and pronounce Washington and Franklin rebels?
One would think, that a deliberate and practical denial of its authority, was the only
offence never contemplated by government; else, why has it not assigned its definite, its
suitable and proportionate penalty? If a man who has no property refuses but once to earn
nine shillings for the State, he is put in prison for a period unlimited by any law that I
know, and determined only by the discretion of those who placed him there; but if he
should steal ninety times nine shillings from the State, he is soon permitted to go at large
again.
If the injustice is part of the necessary friction of the machine of government, let it go, let
it go: perchance it will wear smooth, -- certainly the machine will wear out. If the
injustice has a spring, or a pulley, or a rope, or a crank, exclusively for itself, then
perhaps you may consider whether the remedy will not be worse than the evil; but if it is
of such a nature that it requires you to be the agent of injustice to another, then, I say,
break the law. Let your life be a counter friction to stop the machine. What I have to do is
to see, at any rate, that I do not lend myself to the wrong which I condemn. As for
adopting the ways which the State has provided for remedying the evil, I know not of
such ways. They take too much time, and a man's life will be gone. I have other affairs to
attend to. I came into this world, not chiefly to make this a good place to live in, but to
live in it, be it good or bad. A man has not every thing to do, but something; and because
he cannot do everything, it is not necessary that he should do something wrong. It is not
my business to be petitioning the governor or the legislature any more than it is theirs to
petition me; and, if they should not hear my petition, what should I do then? But in this
case the State has provided no way: its very Constitution is the evil. This may seem to be
harsh and stubborn and unconciliatory; but it is to treat with the utmost kindness and
consideration the only spirit that can appreciate or deserves it. So is all change for the
better, like birth and death which convulse the body.
I do not hesitate to say, that those who call themselves abolitionists should at once
effectually withdraw their support, both in person and property, from the government of
Massachusetts, and not wait till they constitute a majority of one, before they suffer the
right to prevail through them. I think that it is enough if they have God on their side,
without waiting for that other one. Moreover, any man more right than his neighbors,
constitutes a majority of one already.
I meet this American government, or its representative the State government, directly,
and face to face, once a year, no more, in the person of its tax-gatherer; this is the only
mode in which a man situated as I am necessarily meets it; and it then says distinctly,
Recognize me; and the simplest, the most effectual, and, in the present posture of affairs,
the indispensablest mode of treating with it on this head, of expressing your little
satisfaction with and love for it, is to deny it then. My civil neighbor, the tax-gatherer, is
the very man I have to deal with, -- for it is, after all, with men and not with parchment
that I quarrel, -- and he has voluntarily chosen to be an agent of the government. How
shall he ever know well what he is and does as an officer of the government, or as a man,
until he is obliged to consider whether he shall treat me, his neighbor, for whom he has
respect, as a neighbor and well-disposed man, or as a maniac and disturber of the peace,
and see if he can get over this obstruction to his neighborliness without a ruder and more
impetuous thought or speech corresponding with his action? I know this well, that if one
thousand, if one hundred, if ten men whom I could name, -- if ten honest men only, -- aye,
if one honest man, in this State of Massachusetts, ceasing to hold slaves, were actually to
withdraw from this copartnership, and be locked up in the county jail therefor, it would
be the abolition of slavery in America. For it matters not how small the beginning may
seem to be: what is once well done is done for ever. But we love better to talk about it:
that we say is our mission. Reform keeps many scores of newspapers in its service, but
not one man. If my esteemed neighbor, the State's ambassador, who will devote his days
to the settlement of the question of human rights in the Council Chamber, instead of
being threatened with the prisons of Carolina, were to sit down the prisoner of
Massachusetts, that State which is so anxious to foist the sin of slavery upon her sister, -though at present she can discover only an act of inhospitality to be the ground of a
quarrel with her, -- the Legislature would not wholly waive the subject the following
winter.
Under a government which imprisons any unjustly, the true place for a just man is also a
prison. The proper place to-day, the only place which Massachusetts has provided for her
freer and less desponding spirits, is in her prisons, to be put out and locked out of the
State by her own act, as they have already put themselves out by their principles. It is
there that the fugitive slave, and the Mexican prisoner on parole, and the Indian come to
plead the wrongs of his race, should find them; on that separate, but more free and
honorable ground, where the State places those who are not with her, against her, -- the
only house in a slave-state in which a free man can abide with honor. If any think that
their influence would be lost there, and their voices no longer afflict the ear of the State,
that they would not be as an enemy within its walls, they do not know by how much truth
is stronger than error, nor how much more eloquently and effectively he can combat
injustice who has experienced a little in his own person. Cast your whole vote, not a strip
of paper merely, but your whole influence. A minority is powerless while it conforms to
the majority; it is not even a minority then; but it is irresistible when it clogs by its whole
weight. If the alternative is to keep all just men in prison, or give up war and slavery, the
State will not hesitate which to choose. If a thousand men were not to pay their tax-bills
this year, that would not be a violent and bloody measure, as it would be to pay them, and
enable the State to commit violence and shed innocent blood. This is, in fact, the
definition of a peaceable revolution if any such is possible. If the tax-gatherer, or any
other public officer, asks me, as one has done, "But what shall I do?" my answer is, "If
you really wish to do any thing, resign your office." When the subject has refused
allegiance, and the officer has resigned his office, then the revolution is accomplished.
But even suppose blood should flow. Is there not a sort of blood shed when the
conscience is wounded? Through this wound a man's real manhood and immortality flow
out, and he bleeds to an everlasting death. I see this blood flowing now.
I have contemplated the imprisonment of the offender, rather than the seizure of his
goods, -- though both will serve the same purpose, -- because they who assert the purest
right, and consequently are most dangerous to a corrupt State, commonly have not spent
much time in accumulating property. To such the State renders comparatively small
service, and a slight tax is wont to appear exorbitant, particularly if they are obliged to
earn it by special labor with their hands. If there were one who lived wholly without the
use of money, the State itself would hesitate to demand it of him. But the rich man -- not
to make any invidious comparison -- is always sold to the institution which makes him
rich. Absolutely speaking, the more money, the less virtue; for money comes between a
man and his objects, and obtains them for him; and it was certainly no great virtue to
obtain it. It puts to rest many questions which he would otherwise be taxed to answer;
while the only new question which it puts is the hard but superfluous one, how to spend it.
Thus his moral ground is taken from under his feet. The opportunities of living are
diminished in proportion as what are called the "means" are increased. The best thing a
man can do for his culture when he is rich is to endeavour to carry out those schemes
which he entertained when he was poor. Christ answered the Herodians according to their
condition. "Show me the tribute-money," said he; -- and one took a penny out of his
pocket; -- If you use money which has the image of Caesar on it, and which he has made
current and valuable, that is, if you are men of the State, and gladly enjoy the advantages
of Caesar's government, then pay him back some of his own when he demands it;
"Render therefore to Caesar that which is Caesar's, and to God those things which are
God's," -- leaving them no wiser than before as to which was which; for they did not wish
to know.
When I converse with the freest of my neighbors, I perceive that, whatever they may say
about the magnitude and seriousness of the question, and their regard for the public
tranquillity, the long and the short of the matter is, that they cannot spare the protection of
the existing government, and they dread the consequences of disobedience to it to their
property and families. For my own part, I should not like to think that I ever rely on the
protection of the State. But, if I deny the authority of the State when it presents its tax-bill,
it will soon take and waste all my property, and so harass me and my children without
end. This is hard. This makes it impossible for a man to live honestly and at the same
time comfortably in outward respects. It will not be worth the while to accumulate
progeny; that would be sure to go again. You must hire or squat somewhere, and raise but
a small crop, and eat that soon. You must live within yourself, and depend upon yourself,
always tucked up and ready for a start, and not have many affairs. A man may grow rich
in Turkey even, if he will be in all respects a good subject of the Turkish government.
Confucius said, -- "If a State is governed by the principles of reason, poverty and misery
are subjects of shame; if a State is not governed by the principles of reason, riches and
honors are the subjects of shame." No: until I want the protection of Massachusetts to be
extended to me in some distant southern port, where my liberty is endangered, or until I
am bent solely on building up an estate at home by peaceful enterprise, I can afford to
refuse allegiance to Massachusetts, and her right to my property and life. It costs me less
in every sense to incur the penalty of disobedience to the State, than it would to obey. I
should feel as if I were worth less in that case.
Some years ago, the State met me in behalf of the Church, and commanded me to pay a
certain sum toward the support of a clergyman whose preaching my father attended, but
never I myself. "Pay it," it said, "or be locked up in the jail." I declined to pay. But,
unfortunately, another man saw fit to pay it. I did not see why the schoolmaster should be
taxed to support the priest, and not the priest the schoolmaster; for I was not the State's
schoolmaster, but I supported myself by voluntary subscription. I did not see why the
lyceum should not present its tax-bill, and have the State to back its demand, as well as
the church. However, at the request of the selectmen, I condescended to make some such
statement as this in writing: -- "Know all men by these presents, that I, Henry Thoreau,
do not wish to be regarded as a member of any incorporated society which I have not
joined." This I gave to the town-clerk; and he has it. The State, having thus learned that I
did not wish to be regarded as a member of that church, has never made a like demand on
me since; though it said that it must adhere to its original presumption that time. If I had
known how to name them, I should then have signed off in detail from all the societies
which I never signed on to; but I did not know where to find a complete list.
I have paid no poll-tax for six years. I was put into jail once on this account, for one night;
and, as I stood considering the walls of solid stone, two or three feet thick, the door of
wood and iron, a foot thick, and the iron grating which strain the light, I could not help
being struck with the foolishness of that institution which treated me as if I were mere
flesh and blood and bones, to be locked up. I wondered that it should have concluded at
length that this was the best use it could put me and had never thought to avail itself of
my services in some way. I saw that, if there was a wall of stone between me and my
townsmen, there was a still more difficult one to climb or break through, before they
could get to be as free as I was. I did not for a moment feel confined, and the walls
seemed a great waste of stone and mortar. I felt as if I alone of all my townsmen had paid
my tax. They plainly did not know how to treat me, but behaved like persons who are
underbred. In every threat and in every compliment there was a blunder; for they thought
that my chief desire was to stand the other side of that stone wall. I could not but smile to
see how industriously they locked the door on my meditations, which followed them out
again without let or hinderance, and they were really all that was dangerous. As they
could not reach me, they had resolved to punish my body; just as boys, if they can not
come at some person against whom they have a spite, will abuse his dog. I saw that the
State was half-witted, that it was timid as a lone woman with her silver spoons, and that it
did not know its friends from its foes, and I lost all my remaining respect for it, and pitied
it.
Thus the State never intentionally confronts a man's sense, intellectual or moral but only
his body, his senses. It is not armed with superior wit or honesty, but with superior
physical strength. I was not born to be forced. I will breathe after my own fashion. Let us
see who is the strongest. What force has a multitude? They only can force me who obey a
higher law than I. They force me to become like themselves. I do not hear of men being
forced to live this way or that by masses of men. What sort of life were that to live?
When I meet a government which says to me, "Your money or your life," why should I
be in haste to give it my money? It may be in a great strait, and not know what to do: I
cannot help that. It must help itself; do as I do. It is not worth the while to snivel about it.
I am not responsible for the successful working of the machinery of society. I am not the
son of the engineer. I perceive that, when an acorn and a chestnut fall side by side, the
one does not remain inert to make way for the other, but both obey their own laws, and
spring and grow and flourish as best they can, till one, perchance, overshadows and
destroys the other. If a plant cannot live according to its nature, it dies; and so a man.
The night in prison was novel and interesting enough. The prisoners in their shirt-sleeves
were enjoying a chat and the evening air in the door-way, when I entered. But the jailer
said, "Come, boys, it is time to lock up"; and so they dispersed, and I heard the sound of
their steps returning into the hollow apartments. My room-mate was introduced to me by
the jailer, as "a first-rate fellow and a clever man." When the door was locked, he showed
me where to hang my hat, and how he managed matters there. The rooms were
whitewashed once a month; and this one, at least, was the whitest, most simply furnished,
and probably the neatest apartment in the town. He naturally wanted to know where I
came from, and what brought me there; and, when I had told him, I asked him in my turn
how he came there, presuming him to be an honest man, of course; and, as the world goes,
I believe he was. "Why," said he, "they accuse me of burning a barn; but I never did it."
As near as I could discover, he had probably gone to bed in a barn when drunk, and
smoked his pipe there; and so a barn was burnt. He had the reputation of being a clever
man, had been there some three months waiting for his trial to come on, and would have
to wait as much longer; but he was quite domesticated and contented, since he got his
board for nothing, and thought that he was well treated.
He occupied one window, and I the other, and I saw, that, if one stayed there long, his
principal business would be to look out the window. I had soon read all the tracts that
were left there, and examined where former prisoners had broken out, and where a grate
had been sawed off, and heard the history of the various occupants of that room; for I
found that even here there was a history and a gossip which never circulated beyond the
walls of the jail. Probably this is the only house in the town where verses are composed,
which are afterward printed in a circular form, but not published. I was shown quite a
long list of verses which were composed by some young men who had been detected in
an attempt to escape, who avenged themselves by singing them.
I pumped my fellow-prisoner as dry as I could, for fear I should never see him again; but
at length he showed me which was my bed, and left me to blow out the lamp.
It was like travelling into a far country, such as I had never expected to behold, to lie
there for one night. It seemed to me that I never had heard the town-clock strike before,
nor the evening sounds of the village; for we slept with the windows open, which were
inside the grating. It was to see my native village in the light of the middle ages, and our
Concord was turned into a Rhine stream, and visions of knights and castles passed before
me. They were the voices of old burghers that I heard in the streets. I was an involuntary
spectator and auditor of whatever was done and said in the kitchen of the adjacent
village-inn, -- a wholly new and rare experience to me. It was a closer view of my native
town. I was fairly inside of it. I never had seen its institutions before. This is one of its
peculiar institutions; for it is a shire town. I began to comprehend what its inhabitants
were about.
In the morning, our breakfasts were put through the hole in the door, in small oblongsquare tin pans, made to fit, and holding a pint of chocolate, with brown bread, and an
iron spoon. When they called for the vessels again, I was green enough to return what
bread I had left; but my comrade seized it, and said that I should lay that up for lunch or
dinner. Soon after, he was let out to work at haying in a neighboring field, whither he
went every day, and would not be back till noon; so he bade me good-day, saying that he
doubted if he should see me again.
When I came out of prison, -- for some one interfered, and paid the tax, -- I did not
perceive that great changes had taken place on the common, such as he observed who
went in a youth, and emerged a tottering and gray-headed man; and yet a change had to
my eyes come over the scene, -- the town, and State, and country, -- greater than any that
mere time could effect. I saw yet more distinctly the State in which I lived. I saw to what
extent the people among whom I lived could be trusted as good neighbors and friends;
that their friendship was for summer weather only; that they did not greatly purpose to do
right; that they were a distinct race from me by their prejudices and superstitions, as the
Chinamen and Malays are; that, in their sacrifices to humanity, they ran no risks, not even
to their property; that, after all, they were not so noble but they treated the thief as he had
treated them, and hoped, by a certain outward observance and a few prayers, and by
walking in a particular straight though useless path from time to time, to save their souls.
This may be to judge my neighbors harshly; for I believe that most of them are not aware
that they have such an institution as the jail in their village.
It was formerly the custom in our village, when a poor debtor came out of jail, for his
acquaintances to salute him, looking through their fingers, which were crossed to
represent the grating of a jail window, "How do ye do?" My neighbors did not thus salute
me, but first looked at me, and then at one another, as if I had returned from a long
journey. I was put into jail as I was going to the shoemaker's to get a shoe which was
mended. When I was let out the next morning, I proceeded to finish my errand, and,
having put on my mended shoe, joined a huckleberry party, who were impatient to put
themselves under my conduct; and in half an hour, -- for the horse was soon tackled, -was in the midst of a huckleberry field, on one of our highest hills, two miles off; and
then the State was nowhere to be seen.
This is the whole history of "My Prisons."
I have never declined paying the highway tax, because I am as desirous of being a good
neighbor as I am of being a bad subject; and, as for supporting schools, I am doing my
part to educate my fellow-countrymen now. It is for no particular item in the tax-bill that
I refuse to pay it. I simply wish to refuse allegiance to the State, to withdraw and stand
aloof from it effectually. I do not care to trace the course of my dollar, if I could, till it
buys a man, or a musket to shoot one with, -- the dollar is innocent, -- but I am concerned
to trace the effects of my allegiance. In fact, I quietly declare war with the State, after my
fashion, though I will still make what use and get what advantage of her I can, as is usual
in such cases.
If others pay the tax which is demanded of me, from a sympathy with the State, they do
but what they have already done in their own case, or rather they abet injustice to a
greater extent than the State requires. If they pay the tax from a mistaken interest in the
individual taxed, to save his property or prevent his going to jail, it is because they have
not considered wisely how far they let their private feelings interfere with the public good.
This, then, is my position at present. But one cannot be too much on his guard in such a
case, lest his action be biassed by obstinacy, or an undue regard for the opinions of men.
Let him see that he does only what belongs to himself and to the hour.
I think sometimes, Why, this people mean well; they are only ignorant; they would do
better if they knew how: why give your neighbors this pain to treat you as they are not
inclined to? But I think, again, this is no reason why I should do as they do, or permit
others to suffer much greater pain of a different kind. Again, I sometimes say to myself,
When many millions of men, without heat, without ill-will, without personal feeling of
any kind, demand of you a few shillings only, without the possibility, such is their
constitution, of retracting or altering their present demand, and without the possibility, on
your side, of appeal to any other millions, why expose yourself to this overwhelming
brute force? You do not resist cold and hunger, the winds and the waves, thus obstinately;
you quietly submit to a thousand similar necessities. You do not put your head into the
fire. But just in proportion as I regard this as not wholly a brute force, but partly a human
force, and consider that I have relations to those millions as to so many millions of men,
and not of mere brute or inanimate things. I see that appeal is possible, first and
instantaneously, from them to the Maker of them, and, secondly, from them to
themselves. But, if I put my head deliberately into the fire, there is no appeal to fire or to
the Maker of fire, and I have only myself to blame. If I could convince myself that I have
any right to be satisfied with men as they are, and to treat them accordingly, and not
according, in some respects, to my requisitions and expectations of what they and I ought
to be, then, like a good Mussulman and fatalist, I should endeavor to be satisfied with
things as they are, and say it is the will of God. And, above all, there is this difference
between resisting this and a purely brute or natural force, that I can resist this with some
effect; but I cannot expect, like Orpheus, to change the nature of the rocks and trees and
beasts.
I do not wish to quarrel with any man or nation, I do not wish to split hairs, to make fine
distinctions, or set myself up as better than my neighbors. I seek rather, I may say, even
an excuse for conforming to the laws of the land. I am but too ready to conform to them.
Indeed I have reason to suspect myself on this head; and each year, as the tax-gatherer
comes round, I find myself disposed to review the acts and position of the general and
state governments, and the spirit of the people, to discover a pretext for conformity.
We must affect our country as our parents, If at any time we alienate We must respect
effects and teach the soul Matter of conscience and religion, And nor desire of rule or
benefit.
I believe that the State will soon be able to take all my work of this sort out of my hands,
and then I shall be no better a patriot than my fellow-countrymen. Seen from a lower
point of view, the Constitution, with all its faults, is very good; the law and the courts are
very respectable; even this State and this American government are, in many respects,
very admirable and rare things, to be thankful for, such as a great many have described
them; but seen from a point of view a little higher, they are what I have described them;
seen from a higher still, and the highest, who shall say what they are, or that they are
worth looking at or thinking of at all?
However, the government does not concern me much, and I shall bestow the fewest
possible thoughts on it. It is not many moments that I live under a government, even in
this world. If a man is thought-free, fancy-free, imagination-free, that which is not never
for a long time appearing to be to him, unwise rulers or reformers cannot fatally interrupt
him.
I know that most men think differently from myself; but those whose lives are by
profession devoted to the study of these or kindred subjects, content me as little as any.
Statesmen and legislators, standing so completely within the institution, never distinctly
and nakedly behold it. They speak of moving society, but have no resting-place without it.
They may be men of a certain experience and discrimination, and have no doubt invented
ingenious and even useful systems, for which we sincerely thank them; but all their wit
and usefulness lie within certain not very wide limits. They are wont to forget that the
world is not governed by policy and expediency. Webster never goes behind government,
and so cannot speak with authority about it. His words are wisdom to those legislators
who contemplate no essential reform in the existing government; but for thinkers, and
those who legislate for all time, he never once glances at the subject. I know of those
whose serene and wise speculations on this theme would soon reveal the limits of his
mind's range and hospitality. Yet, compared with the cheap professions of most reformers,
and the still cheaper wisdom and eloquence of politicians in general, his are almost the
only sensible and valuable words, and we thank Heaven for him. Comparatively, he is
always strong, original, and, above all, practical. Still his quality is not wisdom, but
prudence. The lawyer's truth is not Truth, but consistency, or a consistent expediency.
Truth is always in harmony with herself, and is not concerned chiefly to reveal the justice
that may consist with wrong-doing. He well deserves to be called, as he has been called,
the Defender of the Constitution. There are really no blows to be given by him but
defensive ones. He is not a leader, but a follower. His leaders are the men of '87. "I have
never made an effort," he says, "and never propose to make an effort; I have never
countenanced an effort, and never mean to countenance an effort, to disturb the
arrangement as originally made, by which the various States came into the Union." Still
thinking of the sanction which the Constitution gives to slavery, he says, "Because it was
a part of the original compact, -- let it stand." Notwithstanding his special acuteness and
ability, he is unable to take a fact out of its merely political relations, and behold it as it
lies absolutely to be disposed of by the intellect, -- what, for instance, it behooves a man
to do here in America to-day with regard to slavery, but ventures, or is driven, to make
some such desperate answer as the following, while professing to speak absolutely, and
as a private man, -- from which what new and singular code of social duties might be
inferred? -- "The manner," says he, "in which the government of those States where
slavery exists are to regulate it, is for their own consideration, under their responsibility
to their constituents, to the general laws of propriety, humanity, and justice, and to God.
Associations formed elsewhere, springing from a feeling of humanity, or any other cause,
have nothing whatever to do with it. They have never received any encouragement from
me, and they never will."
They who know of no purer sources of truth, who have traced up its stream no higher,
stand, and wisely stand, by the Bible and the Constitution, and drink at it there with
reverence and humility; but they who behold where it comes trickling into this lake or
that pool, gird up their loins once more, and continue their pilgrimage toward its
fountain-head.
No man with a genius for legislation has appeared in America. They are rare in the
history of the world. There are orators, politicians, and eloquent men, by the thousand;
but the speaker has not yet opened his mouth to speak, who is capable of settling the
much-vexed questions of the day. We love eloquence for its own sake, and not for any
truth which it may utter, or any heroism it may inspire. Our legislators have not yet
learned the comparative value of free-trade and of freedom, of union, and of rectitude, to
a nation. They have no genius or talent for comparatively humble questions of taxation
and finance, commerce and manufactures and agriculture. If we were left solely to the
wordy wit of legislators in Congress for our guidance, uncorrected by the seasonable
experience and the effectual complaints of the people, America would not long retain her
rank among the nations. For eighteen hundred years, though perchance I have no right to
say it, the New Testament has been written; yet where is the legislator who has wisdom
and practical talent enough to avail himself of the light which it sheds on the science of
legislation?
The authority of government, even such as I am willing to submit to, -- for I will
cheerfully obey those who know and can do better than I, and in many things even those
who neither know or can do so well, -- is still an impure one: to be strictly just, it must
have the sanction and consent of the governed. It can have no pure right over my person
and property but what I concede to it. The progress from an absolute to a limited
monarchy, from a limited monarchy to a democracy, is a progress toward a true respect
for the individual. Is a democracy such as we know it, the last improvement possible in
government? Is it not possible to take a step further towards recognizing and organizing
the rights of man? There will never be a really free and enlightened State, until the State
comes to recognize the individual as a higher and independent power, from which all its
own power and authority are derived, and treats him accordingly. I please myself with
imagining a State at last which can afford to be just to all men, and to treat the individual
with respect as a neighbor; which even would not think it inconsistent with its own
repose, if a few were to live aloof from it, not meddling with it, nor embraced by it, who
fulfilled all the duties of neighbors and fellow-men. A State which bore this kind of fruit,
and suffered it to drop off as fast as it ripened, would prepare the way for a still more
perfect and glorious State, which also I have imagined, but not yet anywhere seen.
Source: Henry David Thoreau, Walden and Other Writings (Brooks Atkinson, ed., 1937),
635-63.
INTRODUCTION TO THE MASSACHUSETTS
PERSONAL LIBERTY ACT
Article IV, Section 2 of the Constitution called for the states to surrender escaped slaves
to their owners, but as abolition sentiment had grown, northern states not only refused to
extradite runaway slaves but protected them from their owners and hired slave-catchers.
As part of the Compromise of 1850 designed to reduce tensions between the North and
the South, Congress passed a new and tougher Fugitive Slave Act that so one-sidedly
favored slave owners that it became a major propaganda weapon of the abolitionists.
Several northern states responded to the new law by passing so-called "personal liberty"
laws aimed at thwarting the federal requirements. Among other things, the laws
guaranteed the writ of habeas corpus, the right to a jury trial and other procedural devices
that not only protected the runaways, but made it difficult for slave owners to prove their
case in court, and also made it costly for them to do so.
The Massachusetts Personal Liberty Act resulted from the uproar over the capture and
extradition of a slave named Anthony Burns in 1854. A hostile mob attempted a rescue, a
guard was killed in the uproar, and Burns was marched back to Virginia under massive
federal and state escort. At about the same time Congress passed the Kansas-Nebraska
Act, which seemed an open invitation for southerners to bring slaves into that part of the
Louisiana Purchase hitherto considered free.
The Massachusetts legislature passed the 1855 law with the defiant title, "An Act to
Protect the Rights and Liberties of the People of the Commonwealth of Massachusetts."
A key provision was the section calling for the removal of any state official who aided in
the return of runaway slaves. The personal liberty laws, while anathema in the South,
reflected the growing opposition of mainstream northern society to the "peculiar
institution."
For further reading: J.H. and W.H. Pease, The Fugitive Slave Law and Anthony Burns
(1975); Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (1981);
and Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 17801861 (1974).
MASSACHUSETTS PERSONAL LIBERTY ACT (1855)
Revised Statutes is hereby declared to be, that every person imprisoned or restrained of
his liberty is entitled, as of right and of course, to the writ of habeas corpus, except in the
cases mentioned in the second section of that chapter.
Sec. 3. The writ of habeas corpus may be issued by the supreme judicial court, the court
of common pleas, by any justice's court or police court of any town or city, by any court
of record, or by any justice of either of said courts, or by any judge of probate; and it may
be issued by any justice of the peace, if no magistrate above named is known to said
justice of the peace to be within five miles of the place where the party is imprisoned or
restrained, and it shall be returnable before the supreme judicial court, or any one of the
justices thereof, whether the court may be in session or not, and in term time or vacation...
Sec. 6. If any claimant shall appear to demand the custody or possession of the person for
whose benefit such writ is sued out, such claimant shall state in writing the facts on
which he relies, with precision and certainty; and neither the claimant of the alleged
fugitive, nor any person interested in his alleged obligation to service or labor, nor the
alleged fugitive, shall be permitted to testify at the trial of the issue; and no confessions,
admissions or declarations of the alleged fugitive against himself shall be given in
evidence. Upon every question of fact involved in the issue, the burden of proof shall be
on the claimant, and the facts alleged and necessary to be established, must be proved by
the testimony of at least two credible witnesses, or other legal evidence equivalent thereto,
and by the rules of evidence known and secured by the common law; and no ex parte
deposition or affidavit shall be received in proof in behalf of the claimant, and no
presumption shall arise in favor of the claimant from any proof that the alleged fugitive
or any of his ancestors had actually been held as a slave, without proof that such holding
was legal.
Sec. 7. If any person shall remove from the limits of this Commonwealth, or shall assist
in removing therefrom, or shall come into the Commonwealth with the intention of
removing or of assisting in the removing therefrom, or shall procure or assist in procuring
to be so removed, any person being in the peace thereof who is not "held to service or
labor" by the "party" making "claim," or who has not "escaped" from the "party" making
"claim," within the meaning of those words in the constitution of the United States, on
the pretence that such person is so held or has so escaped, or that his "service or labor" is
so "due," or with the intent to subject him to such "service or labor," he shall be punished
by a fine of not less than one thousand, nor more than five thousand dollars, and by
imprisonment in the State Prison not less than one, nor more than five years...
Sec. 9. No person, while holding any office of honor, trust, or emolument, under the laws
of this Commonwealth, shall, in any capacity, issue any warrant or other process, or grant
any certificate, under or by virtue of an act of congress . . . or shall in any capacity, serve
any such warrant or other process.
Sec. 10. Any person who shall grant any certificate under or by virtue of the acts of
congress, mentioned in the preceding section, shall be deemed to have resigned any
commission from the Commonwealth which he may possess, his office shall be deemed
vacant, and he shall be forever thereafter ineligible to any office of trust, honor or
emolument under the laws of this Commonwealth.
Sec. 11. Any person who shall act as counsel or attorney for any claimant of any alleged
fugitive from service or labor, under or by virtue of the acts of congress mentioned in the
ninth section of this act, shall be deemed to have resigned any commission from the
Commonwealth that he may possess, and he shall be thereafter incapacitated from
appearing as counsel or attorney in the courts of this Commonwealth...
Sec. 14. Any person holding any judicial office under the constitution or laws of this
Commonwealth, who shall continue, for ten days after the passage of this act, to hold the
office of United States commissioner, or any office...which qualifies him to issue any
warrant or other process...under the [Fugitive Slave Acts] shall be deemed to have
violated good behavior, to have given reason for the loss of public confidence, and
furnished sufficient ground either for impeachment or for removal by address.
Sec. 15. Any sheriff, deputy sheriff, jailer, coroner, constable, or other officer of this
Commonwealth, or the police of any city or town, or any district, county, city or town
officer, or any officer or other member of the volunteer militia of this Commonwealth,
who shall hereafter arrest...any person for the reason that he is claimed or adjudged to be
a fugitive from service or labor, shall be punished by fine...and by imprisonment...
Sec. 16. The volunteer militia of the Commonwealth shall not act in any manner in the
seizure . . . of any person for the reason that he is claimed or adjudged to be a fugitive
from service or labor...
Sec. 19. No jail, prison, or other place of confinement belonging to, or used by, either the
Commonwealth of Massachusetts or any county therein, shall be used for the detention or
imprisonment of any person accused or convicted of any offence created by [the Federal
Fugitive Slave Acts]...or accused or convicted of obstructing or resisting any process,
warrant, or order issued under either of said acts, or of rescuing, or attempting to rescue,
any person arrested or detained under any of the provisions of either of the said acts.
Source: Massachusetts, Acts and Resolves...1855, 924.
INTRODUCTION TO THE COURT OPINION ON
THE DREDD SCOTT CASE
Dred Scott's case holds a unique place in American constitutional history as an example
of the Supreme Court trying to impose a judicial solution on a political problem. It called
down enormous criticism on the Court and on Chief Justice Roger Brooke Taney; a later
chief justice, Charles Evans Hughes, described it as a great "self-inflicted wound."
Scott, born a slave, had been taken by his master, an army surgeon, into the free portion
of the Louisiana territory. Upon his master's death, Scott sued for his freedom, on the
grounds that since slavery was outlawed in the free territory, he had become a free man
there, and "once free always free." The argument was rejected by a Missouri court, but
Scott and his white supporters managed to get the case into federal court, where the issue
was simply whether a slave had standing -- that is, the legal right -- to sue in a federal
court. So the first question the Supreme Court had to decide was whether it had
jurisdiction. If Scott had standing, then the Court had jurisdiction, and the justices could
go on to decide the merits of his claim. But if, as a slave, Scott did not have standing,
then the Court could dismiss the suit for lack of jurisdiction.
The Court ruled that Scott, as a slave, could not exercise the prerogative of a free citizen
to sue in federal court. That should have been the end of the case, but Chief Justice Taney
and the other southern sympathizers on the Court hoped that a definitive ruling would
settle the issue of slavery in the territories once and for all. So they went on to rule that
the Missouri Compromise of 1820 was unconstitutional since Congress could not forbid
citizens from taking their property, i.e., slaves, into any territory owned by the United
States. A slave, Taney ruled, was property, nothing more, and could never be a citizen.
The South, of course, welcomed the ruling, but in the North it raised a storm of protest
and scorn. It helped create the Republican Party, and disgust at the decision may have
played a role in the election of Abraham Lincoln in 1860.
For further reading: Don E. Fehrenbacher, The Dred Scott Case (1978); Walter Ehrlich,
They Have No Rights: Dred Scott's Struggle for Freedom (1979).
DRED SCOTT V. SANDFORD (1857)
Chief Justice Taney delivered the opinion of the Court.
The question is simply this: Can a negro, whose ancestors were imported into this
country, and sold as slaves, become a member of the political community formed and
brought into existence by the Constitution of the United States, and as such become
entitled to all the rights, and privileges, and immunities, guarantied by that instrument to
the citizen? One of which rights is the privilege of suing in a court of the United States in
the cases specified in the constitution...
The words "people of the United States" and "citizens" are synonymous terms, and mean
the same thing. They both describe the political body who, according to our republican
institutions, form the sovereignty, and who hold the power and conduct the government
through their representatives. They are what we familiarly call the "sovereign people,"
and every citizen is one of this people, and a constituent member of this sovereignty. The
question before us is, whether the class of persons described in the plea in abatement
compose a portion of this people, and are constituent members of this sovereignty? We
think they are not, and that they are not included, and were not intended to be included,
under the word "citizens" in the constitution, and can therefore claim none of the rights
and privileges which that instrument provides for and secures to citizens of the United
States. On the contrary, they were at that time considered as a subordinate and inferior
class of beings, who had been subjugated by the dominant race, and, whether
emancipated or not, yet remained subject to their authority, and had no rights or
privileges but such as those who held the power and the government might choose to
grant them.
It is not the province of the court to decide upon the justice or injustice, the policy or
impolicy, of these laws. The decision of that question belonged to the political or lawmaking power; to those who formed the sovereignty and framed the constitution. The
duty of the court is, to interpret the instrument they have framed, with the best lights we
can obtain on the subject, and to administer it as we find it, according to its true intent
and meaning when it was adopted.
In discussing this question, we must not confound the rights of citizenship which a State
may confer within its own limits, and the rights of citizenship as a member of the Union.
It does not by any means follow, because he has all the rights and privileges of a citizen
of a State, that he must be a citizen of the United States. He may have all of the rights and
privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a
citizen in any other State. For, previous to the adoption of the constitution of the United
States, every State had the undoubted right to confer on whomsoever it pleased the
character of citizen, and to endow him with all its rights. But this character of course was
confirmed to the boundaries of the State, and gave him no rights or privileges in other
States beyond those secured to him by the laws of nations and the comity of States. Nor
have the several States surrendered the power of conferring these rights and privileges by
adopting the constitution of the United States...
It is very clear, therefore, that no State can, by any act or law of its own, passed since the
adoption of the constitution, introduce a new member into the political community
created by the constitution of the United States. It cannot make him a member of this
community by making him a member of its own. And for the same reason it cannot
introduce any person, or description of persons, who were not intended to be embraced in
this new political family, which the constitution brought into existence, but were intended
to be excluded from it.
The question then arises, whether the provisions of the constitution, in relation to the
personal rights and privileges to which the citizen of a State should be entitled, embraced
the negro African race, at that time in this country, or who might afterwards be imported,
who had then or should afterwards be made free in any State; and to put it in the power of
a single State to make him a citizen of the United States, and endue him with the full
rights of citizenship in every other State without their consent? Does the constitution of
the United States act upon him whenever he shall be made free under the laws of a State,
and raised there to the rank of a citizen, and immediately clothe him with all the
privileges of a citizen in every other State, and in its own courts?
The court think the affirmative of these propositions cannot be maintained. And if it
cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the
meaning of the constitution of the United States, and, consequently, was not entitled to
sue in its courts.
It is true, every person, and every class and description of persons, who were at the time
of the adoption of the constitution recognized as citizens in the several States, became
also citizens of this new political body; but none other; it was formed by them, and for
them and their posterity, but for no one else. And the personal rights and privileges
guaranteed to citizens of this new sovereignty were intended to embrace those only who
were then members of the several State communities, or who should afterwards by
birthright or otherwise become members, according to the provisions of the constitution
and the principles on which it was founded. It was the union of those who were at that
time members of distinct and separate political communities into one political family,
whose power, for certain specified purposes, was to extend over the whole territory of the
United States. And it gave to each citizen rights and privileges outside of his State which
he did not before possess, and placed him in every other State upon a perfect equality
with its own citizens as to rights of person and rights of property; it made him a citizen of
the United States...
In the opinion of the court, the legislation and histories of the times, and the language
used in the declaration of independence, show, that neither the class of persons who had
been imported as slaves, nor their descendants, whether they had become free or not,
were then acknowledged as a part of the people, nor intended to be included in the
general words used in that memorable instrument...
It is too clear for dispute, that the enslaved African race were not intended to be included,
and formed no part of the people who framed and adopted this declaration; for if the
language, as understood in that day, would embrace them, the conduct of the
distinguished men who framed the declaration of independence would have been utterly
and flagrantly inconsistent with the principles they asserted; and instead of the sympathy
of mankind, to which they so confidently appealed, they would have deserved and
received universal rebuke and reprobation...
But there are two clauses in the constitution which point directly and specifically to the
negro race as a separate class of persons, and show clearly that they were not regarded as
a portion of the people or citizens of the government then formed.
One of these clauses reserves to each of the thirteen States the right to import slaves until
the year 1808, if it thinks proper...And by the other provision the States pledge
themselves to each other to maintain the right of property of the master, by delivering up
to him any slave who may have escaped from his service, and be found within their
respective territories...
The only two provisions which point to them and include them, treat them as property,
and make it the duty of the government to protect it; no other power, in relation to this
race, is to be found in the constitution; and as it is a government of special, delegated
powers, no authority beyond these two provisions can be constitutionally exercised. The
government of the United States had no right to interfere for any other purpose but that of
protecting the rights of the owner, leaving it altogether with the several States to deal
with this race, whether emancipated or not, as each State may think justice, humanity,
and the interests and safety of society, require. The States evidently intended to reserve
this power exclusively to themselves...
Upon a full and careful consideration of the subject, the court is of opinion, that, upon the
facts stated...Dred Scott was not a citizen of Missouri within the meaning of the
constitution of the United States, and not entitled as such to sue in its courts; and,
consequently, that the circuit court had no jurisdiction of the case, and that the judgment
on the plea in abatement is erroneous...
We proceed...to inquire whether the facts relied on by the plaintiff entitled him to his
freedom...
The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary
servitude, except as a punishment for crime, shall be forever prohibited in all that part of
the territory ceded by France, under the name of Louisiana, which lies north of thirty-six
degrees thirty minutes north latitude and not included within the limits of Missouri. And
the difficulty which meets us at the threshold of this part of the inquiry is whether
Congress was authorized to pass this law under any of the powers granted to it by the
Constitution; for, if the authority is not given by that instrument, it is the duty of this
Court to declare it void and inoperative and incapable of conferring freedom upon anyone
who is held as a slave under the laws of any one of the states.
The counsel for the plaintiff has laid much stress upon that article in the Constitution
which confers on Congress the power "to dispose of and make all needful rules and
regulations respecting the territory or other property belonging to the United States"; but,
in the judgment of the Court, that provision has no bearing on the present controversy,
and the power there given, whatever it may be, is confined, and was intended to be
confined, to the territory which at that time belonged to, or was claimed by, the United
States and was within their boundaries as settled by the treaty with Great Britain and can
have no influence upon a territory afterward acquired from a foreign government. It was
a special provision for a known and particular territory, and to meet a present emergency,
and nothing more...
We do not mean, however, to question the power of Congress in this respect. The power
to expand the territory of the United States by the admission of new states is plainly given;
and in the construction of this power by all the departments of the government, it has
been held to authorize the acquisition of territory, not fit for admission at the time, but to
be admitted as soon as its population and situation would entitle it to admission...
It may be safely assumed that citizens of the United States who migrate to a territory
belonging to the people of the United States cannot be ruled as mere colonists, dependent
upon the will of the general government, and to be governed by any laws it may think
proper to impose. The principle upon which our governments rest, and upon which alone
they continue to exist, is the union of states, sovereign and independent within their own
limits in their internal and domestic concerns, and bound together as one people by a
general government, possessing certain enumerated and restricted powers, delegated to it
by the people of the several states, and exercising supreme authority within the scope of
the powers granted to it, throughout the dominion of the United States. A power,
therefore, in the general government to obtain and hold colonies and dependent territories,
over which they might legislate without restriction, would be inconsistent with its own
existence in its present form. Whatever it acquires, it acquires for the benefit of the
people of the several states who created it. It is their trustee acting for them and charged
with the duty of promoting the interests of the whole people of the Union in the exercise
of the powers specifically granted...
But the power of Congress over the person or property of a citizen can never be a mere
discretionary power under our Constitution and form of government. The powers of the
government and the rights and privileges of the citizen are regulated and plainly defined
by the Constitution itself. And, when the territory becomes a part of the United States, the
federal government enters into possession in the character impressed upon it by those
who created it. It enters upon it with its powers over the citizen strictly defined and
limited by the Constitution, from which it derives its own existence, and by virtue of
which alone it continues to exist and act as a government and sovereignty. It has no
power of any kind beyond it; and it cannot, when it enters a territory of the United States,
put off its character and assume discretionary or despotic powers which the Constitution
has denied to it. It cannot create for itself a new character separated from the citizens of
the United States and the duties it owes them under the provisions of the Constitution.
The territory, being a part of the United States, the government and the citizen both enter
it under the authority of the Constitution, with their respective rights defined and marked
out; and the federal government can exercise no power over his person or property,
beyond what that instrument confers, nor lawfully deny any right which it has reserved...
These powers, and others, in relation to rights of person, which it is not necessary here to
enumerate, are, in express and positive terms, denied to the general government; and the
rights of private property have been guarded with equal care. Thus the rights of property
are united with the rights of person and placed on the same ground by the Fifth
Amendment to the Constitution, which provides that no person shall be deprived of life,
liberty, and property without due process of law. And an act of Congress which deprives
a citizen of the United States of his liberty or property, without due process of law,
merely because he came himself or brought his property into a particular territory of the
United States, and who had committed no offense against the laws, could hardly be
dignified with the name of due process of law...
It seems, however, to be supposed that there is a difference between property in a slave
and other property and that different rules may be applied to it in expounding the
Constitution of the United States. And the laws and usages of nations, and the writings of
eminent jurists upon the relation of master and slave and their mutual rights and duties,
and the powers which governments may exercise over it, have been dwelt upon in the
argument.
But, in considering the question before us, it must be borne in mind that there is no law of
nations standing between the people of the United States and their government and
interfering with their relation to each other. The powers of the government and the rights
of the citizen under it are positive and practical regulations plainly written down. The
people of the United States have delegated to it certain enumerated powers and forbidden
it to exercise others. It has no power over the person or property of a citizen but what the
citizens of the United States have granted. And no laws or usages of other nations, or
reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the
powers of the government or take from the citizens the rights they have reserved. And if
the Constitution recognizes the right of property of the master in a slave, and makes no
distinction between that description of property and other property owned by a citizen, no
tribunal, acting under the authority of the United States, whether it be legislative,
executive, or judicial, has a right to draw such a distinction or deny to it the benefit of the
provisions and guaranties which have been provided for the protection of private property
against the encroachments of the government.
Now, as we have already said in an earlier part of this opinion, upon a different point, the
right of property in a slave is distinctly and expressly affirmed in the Constitution. The
right to traffic in it, like an ordinary article of merchandise and property, was guaranteed
to the citizens of the United States, in every state that might desire it, for twenty years.
And the government in express terms is pledged to protect it in all future time if the slave
escapes from his owner. That is done in plain words -- too plain to be misunderstood.
And no word can be found in the Constitution which gives Congress a greater power over
slave property or which entitles property of that kind to less protection than property of
any other description. The only power conferred is the power coupled with the duty of
guarding and protecting the owner in his rights.
Upon these considerations it is the opinion of the Court that the act of Congress which
prohibited a citizen from holding and owning property of this kind in the territory of the
United States north of the line therein mentioned is not warranted by the Constitution and
is therefore void; and that neither Dred Scott himself, nor any of his family, were made
free by being carried into this territory; even if they had been carried there by the owner
with the intention of becoming a permanent resident.
Source: 19 Howard (1857), 393.
INTRODUCTION TO LINCOLN'S SPEECH
The Dred Scott decision came just three years after Senator Stephen Douglas of Illinois
had engineered the Kansas-Nebraska bill through Congress. Pressure to build a
transcontinental railroad had been intensifying, but southerners declared they would
continue to block the necessary legislation unless they were allowed additional territory
to which to take their slaves. Douglas had come up with a proposal to allow slavery in the
northern part of the Louisiana Purchase, but only if it received the blessing of the settlers
in the territory. The formula, known as popular sovereignty, temporarily satisfied both
southerners and some northerners, since it appeared democratic; as Douglas pointed out,
unless a majority of people in a territory supported slavery, it could not take hold. In Dred
Scott, the Supreme Court had held that Congress had no power to keep slavery out of the
territories, a decision that seemingly nullified the popular sovereignty proposal.
Increasingly, northerners came to the conclusion that opposition to the expansion of
slavery in the territories was not enough, that the real evil was the peculiar institution
itself. But this commitment to total abolition scared many moderates, who believed that if
they attacked slavery in the South, it could spell the end of the Union. Abraham Lincoln
was among these moderates. He opposed the expansion of slavery, but believed it had to
be left in place where it existed, and he hoped that by so containing it, it would eventually
die a natural death. In 1858 the new Republican Party named Lincoln its candidate for the
U.S. Senate seat then held by Stephen Douglas, author of the doctrine of popular
sovereignty. The debates Lincoln and Douglas held that fall would receive national
attention, and turn Lincoln into a serious contender for the Republican Party's 1860
presidential election.
In a speech delivered on June 17, 1858, at the close of the Republican State Convention,
Lincoln caught the mood of many in the North who were increasingly concerned about
the morality of slavery on the one hand, and the need to preserve the Union on the other.
Though the "house divided" phrase had been used frequently before, it was this speech of
Lincoln's that gave currency and familiarity to the phrase and the idea.
For further reading: Richard N. Current, The Lincoln Nobody Knows (1958); David
Donald, Lincoln Reconsidered (1956); and Don E. Fehrenbacher, Prelude to Greatness:
Lincoln in the 1850s (1962).
"A HOUSE DIVIDED"
Mr. President and Gentlemen of the Convention:
If we could first know where we are, and whither we are tending, we could better judge
what to do, and how to do it. We are now far into the fifth year since apolicy was initiated
with the avowed object and confident promise of putting an end to slavery agitation.
Under the operation of that policy, that agitation has not only not ceased, but has
constantly augmented. In my opinion, it will not cease until a crisis shall have been
reached and passed. "A house divided against itself cannot stand." I believe this
government cannot endure permanently half slave and half free. I do not expect the
Union to be dissolved; I do not expect the house to fall; but I do expect it will cease to be
divided. It will become all one thing, or all the other. Either the opponents of slavery will
arrest the further spread of it, and place it where the public mind shall rest in the belief
that it is in the course of ultimate extinction, or its advocates will push it forward till it
shall become alike lawful in all the States, old as well as new, North as well as South.
Have we no tendency to the latter condition?
Let any one who doubts, carefully contemplate that now almost complete legal
combination -- pieces of machinery, so to speak -- compounded of the Nebraska doctrine
and the Dred Scott decision. Let him consider, not only what work the machinery is
adapted to do, and how well adapted, but also let him study the history of its construction,
and trace, if he can, or rather fail, if he can, to trace the evidence of design, and concert of
action, among its chief architects, from the beginning.
The new year of 1854 found slavery excluded from more that half the States by State
Constitutions, and from most of the National territory by Congressional prohibition. Four
days later, commenced the struggle which ended in repealing that Congressional
prohibition. This opened all the National territory to slavery, and was the first point
gained...
While the Nebraska Bill was passing through Congress, a law case, involving the
question of a negro's freedom by reason of his owner having voluntarily taken him first
into a free State, and then into a territory covered by the Congressional prohibition, and
held him as a slave for a long time in each, was passing through the United States Circuit
Court for the District of Missouri; and both Nebraska Bill and lawsuit were brought to a
decision in the same month of May, 1854. The negro's name was "Dred Scott," which
name now designates the decision finally made in the case. Before the then next
Presidential election, the law case came to, and was argued in, the Supreme Court of the
United States; but the decision of it was deferred until after the election. Still, before the
election, Senator Trumbull, on the floor of the Senate, requested the leading advocate of
the Nebraska Bill to state his opinion whether the people of a Territory can
constitutionally exclude slavery from their limits; and the latter answers: "That is a
question for the Supreme Court."
The election came. Mr. Buchanan was elected, and the indorsement, such as it was,
secured. That was the second point gained...The Presidential inauguration came, and still
no decision of the court; but the incoming President, in his inaugural address, fervently
exhorted the people to abide by the forthcoming decision, whatever it might be. Then, in
a few days, came the decision.
The reputed author of the Nebraska Bill finds an early occasion to make a speech at this
capital indorsing the Dred Scott decision, and vehemently denouncing all opposition to it.
The new President, too, seizes the early occasion of the Silliman letter to indorse and
strongly construe that decision, and to express his astonishment that any different view
had ever been entertained!
At length a squabble springs up between the President and the author of the Nebraska Bill,
on the mere question of fact, whether the Lecompton Constitution was or was not in any
just sense made by the people of Kansas; and in that quarrel the latter declares that all he
wants is a fair vote for the people, and that he cares not whether slavery be voted down or
voted up. I do not understand his declaration, that he cares not whether slavery be voted
down or voted up, to be intended by him other than as an apt definition of the policy he
would impress upon the public mind... That principle is the only shred left of his original
Nebraska doctrine. Under the Dred Scott decision "squatter sovereignty" squatted out of
existence, tumbled down like temporary scaffolding; like the mould at the foundry,
served through one blast, and fell back into loose sand; helped to carry an election, and
then was kicked to the winds. His late joint struggle with the Republicans, against the
Lecompton Constitution, involves nothing of the original Nebraska doctrine. That
struggle was made on a point -- the right of a people to make their own constitution -upon which he and the Republicans have never differed.
The several points of the Dred Scott decision, in connection with Senator Douglas's "care
not" policy, constitute the piece of machinery, in its present state of advancement. This
was the third point gained. The working points of that machinery are:
Firstly, That no negro slave imported as such from Africa, and descendant of such slave,
can ever be a citizen of any State, in the sense of that term as used in the Constitution of
the United States. This point is made in order to deprive the negro, in every possible
event, of the benefit of the provision of the United States Constitution which declares that
"The citizens of each State shall be entitled to all privileges and immunities of citizens in
the several States."
Secondly, That, "subject to the Constitution of the United States," neither Congress nor a
Territorial Legislature can exclude slavery from any United States Territory. This point is
made in order that individual men fill up the Territories with slaves, without danger of
losing them as property, and thus to enhance the chances of permanency to the institution
through all the future.
Thirdly, That whether the holding a negro in actual slavery in a free State makes him free,
as against the holder, the United States courts will not decide, but will leave to be decided
by the courts of any slave state the negro may be forced into by the master. This point is
made, not to be pressed immediately; but, if acquiesced in for a while, and apparently
indorsed by the people at an election, then to sustain the logical conclusion that what
Dred Scott's master might lawfully do with Dred Scott, in the free State of Illinois, every
other master may lawfully do with any other one, or one thousand slaves, in Illinois, or in
any other free State.
Auxiliary to all this, and working hand in hand with it, the Nebraska doctrine, or what is
left of it, is to educate and mould public opinion, at least Northern public opinion, not to
care whether slavery is voted down or voted up. This shows exactly where we now are;
and partially, also, whither we are tending...
Why was the amendment, expressly declaring the right of the people, voted down?
Plainly enough now, -- the speaking out then would have damaged the "perfectly free"
argument upon which the election was to be carried. Why the outgoing President's
felicitation on the indorsement? Why the delay of a reargument? Why the incoming
President's advance exhortation in favor of the decision? These things look like the
cautious patting and petting of a spirited horse preparatory to mounting him, when it is
dreaded that he may give the rider a fall. And why the hasty after-indorsement of the
decision by the President and others?
We cannot absolutely know that all these exact adaptations are the result of preconcert.
But when we see a lot of framed timbers, different portions of which we know have been
gotten out at different times and places and by different workmen, -- Stephen, Franklin,
Roger, and James, for instance, -- and when we see these timbers joined together, and see
they exactly make the frame of a house or a mill, all the tenons and mortises exactly
fitting, and all the lengths and proportions of the different pieces exactly adapted to their
respective places, and not a piece too many or too few, -- not omitting even scaffolding, - or, if a single piece be lacking, we see the place in the frame exactly fitted and prepared
yet to bring such piece in, -- in such a case, we find it impossible not to believe that
Stephen and Franklin and Roger and James all understood one another from the
beginning, and all worked upon a common plan or draft drawn up before the first blow
was struck...
Source: Roy P. Basler, ed., Collected Works of Abraham Lincoln, vol. 2 (1953), 461-68.
INTRODUCTION TO SULLIVAN BALLOU'S
LETTER
Love of country is not unique to Americans, but in a democracy, sending citizens to war
requires far more than a dictator's fiat. In 1861, men on both sides of the conflict were
willing to lay down their lives for what they believed to be right. Southerners fought for
states' rights and a society built upon human slavery, which many considered the natural
order of the universe. When the war started, few volunteers in the northern army marched
off to end slavery, but many were ready to fight and die to preserve the Union.
One such soldier was Major Sullivan Ballou of the Second Regiment, Rhode Island
Volunteers. Then thirty-two years old, Ballou had overcome his family's poverty to start a
promising career as a lawyer. He and his wife Sarah wanted to build a better life for their
two boys, Edgar and Willie. An ardent Republican and a devoted supporter of Abraham
Lincoln, Ballou had volunteered in the spring of 1861, and on June 19 he and his men
had left Providence for Washington, D.C.
He wrote the following letter to his wife from a camp just outside the nation's capital, and
it is at once a passionate love letter as well as a profound meditation on the meaning of
the Union. It caught national importance 129 years after he wrote it, when it was read on
the widely watched television series, "The Civil War," produced by Ken Burns. The
beauty of the language as well as the passion of the sentiments touched the popular
imagination, and brought home to Americans once again what defense of democracy
entailed.
Ballou wrote the letter July 14, while awaiting orders that would take him to Manassas,
where he and twenty-seven of his men would die one week later at the Battle of Bull Run.
LETTER TO HIS WIFE (1861)
My very dear Sarah:
The indications are very strong that we shall move in a few days -- perhaps tomorrow.
Lest I should not be able to write you again, I feel impelled to write lines that may fall
under your eye when I shall be no more.
Our movement may be one of a few days duration and full of pleasure -- and it may be
one of severe conflict and death to me. Not my will, but thine O God, be done. If it is
necessary that I should fall on the battlefield for my country, I am ready. I have no
misgivings about, or lack of confidence in, the cause in which I am engaged, and my
courage does not halt or falter. I know how strongly American Civilization now leans
upon the triumph of the Government, and how great a debt we owe to those who went
before us through the blood and suffering of the Revolution. And I am willing -- perfectly
willing -- to lay down all my joys in this life, to help maintain this Government, and to
pay that debt.
But, my dear wife, when I know that with my own joys I lay down nearly all of yours,
and replace them in this life with cares and sorrows -- when, after having eaten for long
years the bitter fruit of orphanage myself, I must offer it as their only sustenance to my
dear little children -- is it weak or dishonorable, while the banner of my purpose floats
calmly and proudly in the breeze, that my unbounded love for you, my darling wife and
children, should struggle in fierce, though useless, contest with my love of country?
I cannot describe to you my feelings on this calm summer night, when two thousand men
are sleeping around me, many of them enjoying the last, perhaps, before that of death -and I, suspicious that Death is creeping behind me with his fatal dart, am communing
with God, my country, and thee.
I have sought most closely and diligently, and often in my breast, for a wrong motive in
thus hazarding the happiness of those I loved and I could not find one. A pure love of my
country and of the principles I have often advocated before the people and "the name of
honor that I love more than I fear death" have called upon me, and I have obeyed.
Sarah, my love for you is deathless, it seems to bind me to you with mighty cables that
nothing but Omnipotence could break; and yet my love of Country comes over me like a
strong wind and bears me irresistibly on with all these chains to the battlefield.
The memories of the blissful moments I have spent with you come creeping over me, and
I feel most gratified to God and to you that I have enjoyed them so long. And hard it is
for me to give them up and burn to ashes the hopes of future years, when God willing, we
might still have lived and loved together, and seen our sons grow up to honorable
manhood around us. I have, I know, but few and small claims upon Divine Providence,
but something whispers to me -- perhaps it is the wafted prayer of my little Edgar -- that I
shall return to my loved ones unharmed. If I do not, my dear Sarah, never forget how
much I love you, and when my last breath escapes me on the battlefield, it will whisper
your name.
Forgive my many faults, and the many pains I have caused you. How thoughtless and
foolish I have oftentimes been! How gladly would I wash out with my tears every little
spot upon your happiness, and struggle with all the misfortune of this world, to shield you
and my children from harm. But I cannot. I must watch you from the spirit land and
hover near you, while you buffet the storms with your precious little freight, and wait
with sad patience till we meet to part no more.
But, O Sarah! If the dead can come back to this earth and flit unseen around those they
loved, I shall always be near you; in the garish day and in the darkest night -- amidst your
happiest scenes and gloomiest hours -- always, always; and if there be a soft breeze upon
your cheek, it shall be my breath; or the cool air fans your throbbing temple, it shall be
my spirit passing by.
Sarah, do not mourn me dead; think I am gone and wait for thee, for we shall meet again.
As for my little boys, they will grow as I have done, and never know a father's love and
care. Little Willie is too young to remember me long, and my blue-eyed Edgar will keep
my frolics with him among the dimmest memories of his childhood. Sarah, I have
unlimited confidence in your maternal care and your development of their characters.
Tell my two mothers his and hers I call God's blessing upon them. O Sarah, I wait for you
there! Come to me, and lead thither my children.
Sullivan
Source: Brown University Alumni Quarterly (Nov. 1990): 38-42.
INTRODUCTION TO LINCOLN'S EMANCIPATION
PROCLAMATION
Lincoln and the North entered the war to preserve the Union rather than to free the slaves,
but within a relatively short time emancipation became an accepted war aim. Neither
Congress nor the president knew exactly what constitutional powers they had in this area;
according to the Dred Scott decision, they had none. But Lincoln believed that the
Constitution gave the Union whatever powers it needed to preserve itself, and that he, as
commander-in-chief, had the authority to use those powers.
In the fall of 1862, after the Union army victory at Antietam, Lincoln issued a
preliminary proclamation, warning that on January 1, 1863, he would free all the slaves
in those states still in rebellion. Intended as a war and propaganda measure, the
Emancipation Proclamation had far more symbolic than real impact, because the federal
government had no means to enforce it at the time. But the document clearly and
irrevocably notified the South and the world that the war was being fought not just to
preserve the Union, but to put an end to the peculiar institution. Eventually, as Union
armies occupied more and more southern territory, the Proclamation turned into reality,
as thousands of slaves were set free by the advancing federal troops.
For further reading: John Hope Franklin, The Emancipation Proclamation (1963);
Herman Belz, Emancipation and Equal Rights (1978); and LaWanda Cox, Lincoln and
Black Freedom (1981).
THE EMANCIPATION PROCLAMATION (1863)
Whereas, on the twenty-second day of September, in the year of our Lord one thousand
eight hundred and sixty-two, a proclamation was issued by the President of the United
States, containing, among other things, the following, to wit:
"That on the first day of January, in the year of our Lord one thousand eight hundred and
sixty-three, all persons held as slaves within any State, or designated part of a State, the
people whereof shall then be in rebellion against the United States, shall be then,
thenceforward, and forever free; and the Executive Government of the United States,
including the military and naval authority thereof, will recognize and maintain the
freedom of such persons, and will do no act or acts to repress such persons, or any of
them, in any efforts they may make for their actual freedom."
"That the Executive will, on the first day of January aforesaid, by proclamation, designate
the States and parts of States, if any, in which the people thereof respectively shall then
be in rebellion against the United States; and the fact that any State, or the people thereof,
shall on that day be in good faith represented in the Congress of the United States by
members chosen thereto at elections wherein a majority of the qualified voters of such
State shall have participated, shall in the absence of strong countervailing testimony be
deemed conclusive evidence that such State and the people thereof are not then in
rebellion against the United States."
Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the
power in me vested as commander-in-chief of the army and navy of the United States, in
time of actual armed rebellion against the authority and government of the United States,
and as a fit and necessary war measure for suppressing said rebellion, do, on this first day
of January, in the year of our Lord one thousand eight hundred and sixty-three, and in
accordance with my purpose so to do, publicly proclaimed for the full period of 100 days
from the day first above mentioned, order and designate as the States and parts of States
wherein the people thereof, respectively, are this day in rebellion against the United
States, the following, to wit:
Arkansas, Texas, Louisiana (except the parishes of St. Bernard, Plaquemines, Jefferson,
St. John, St. Charles, St. James, Ascension, Assumption, Terre Bonne, Lafourche, St.
Mary, St. Martin, and Orleans, including the city of New Orleans), Mississippi, Alabama,
Florida, Georgia, South Carolina, North Carolina, and Virginia (except the forty-eight
counties designated as West Virginia, and also the counties of Berkeley, Accomac,
Northampton, Elizabeth City, York, Princess Anne, and Norfolk, including the cities of
Norfolk and Portsmouth), and which excepted parts are for the present left precisely as if
this proclamation were not issued.
And by virtue of the power and for the purpose aforesaid, I do order and declare that all
persons held as slaves within said designated States and parts of States are, and
henceforward shall be, free; and that the Executive Government of the United States,
including the military and naval authorities thereof, will recognize and maintain the
freedom of said persons.
And I hereby enjoin upon the people so declared to be free to abstain from all violence,
unless in necessary self-defense; and I recommend to them that, in all cases where
allowed, they labor faithfully for reasonable wages.
And I further declare and make known that such persons of suitable condition will be
received into the armed service of the United States to garrison forts, positions, stations,
and other places, and to man vessels of all sorts in said service.
And upon this act, sincerely believed to be an act of justice, warranted by the
Constitution upon military necessity, I invoke the considerate judgment of mankind and
the gracious favor of Almighty God.
In witness whereof, I have hereunto set my hand and caused the seal of the United States
to be affixed.
Done at the city of Washington, this first day of January, in the year of our Lord one
thousand eight hundred and sixty-three, and of the independence of the United States of
America the eighty-seventh.
Abraham Lincoln
INTRODUCTION TO ABRAHAM LINCOLN'S
GETTYSBURG ADDRESS
Few documents in the growth of American democracy are as well known or as beloved as
the prose poem Abraham Lincoln delivered at the dedication of the military cemetery in
Gettysburg, Pennsylvania.
In June 1863 Confederate forces under Robert E. Lee moved north in an effort to win a
dramatic victory that would reverse the South's declining fortunes. On July 1-3, Lee's
forces fought the Union army under the command of George C. Meade, and before the
fighting ended, the two sides suffered more than 45,000 casualties. Lee, having lost more
than a third of his men, retreated, and the Battle of Gettysburg is considered a turning
point in the American Civil War.
The dedication of the battlefield and cemetery thus provided Lincoln with an opportunity
for a major address, but he disappointed many of his supporters when he gave this short
talk. In fact, many of the spectators did not even know the president had started speaking
when he finished. But in this talk Lincoln managed, as the great orator Edward Everett
(the main speaker at the dedication) understood, to combine all the elements of the battle
and the dedication into a unified whole.
These men fought, and died, for the Union. Now their work was done; they had made the
supreme sacrifice, and it was up to those living to carry on the task. But Lincoln's rhetoric,
as subsequent generations discovered, did far more than memorialize the dead; it
transformed the meaning of the Constitution for those still alive. Lincoln read into the
Constitution a promise of equality, the "proposition that all men are created equal." That,
of course, had been a premise of the Declaration of Independence, but everyone
understood that the drafters of that document had not intended to include slaves and other
"inferior" peoples in their definition. Now the country had fought a great war to test that
notion, and the lives of the men who died at Gettysburg could be hallowed only one way
-- if the nation, finally, lived up to the proposition that all of its people, regardless of race,
were in fact equal. The power of the idea still informs American democratic thought.
For further reading: James M. McPherson, Abraham Lincoln and the Second American
Revolution (1991); Philip B. Kunhardt, A New Birth of Freedom: Lincoln at Gettysburg
(1983).
GETTYSBURG ADDRESS (1863)
Four score and seven years ago our fathers brought forth on this continent, a new nation,
conceived in Liberty, and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation, or any nation so
conceived and so dedicated, can long endure. We are met on a great battle-field of that
war. We have come to dedicate a portion of that field, as a final resting place for those
who here gave their lives that the nation might live. It is altogether fitting and proper that
we should do this.
But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow - this ground. The brave men, living and dead, who struggled here, have consecrated it,
far above our poor power to add or detract. The world will little note, nor long remember
what we say here, but it can never forget what they did here. It is for us the living, rather,
to be dedicated here to the unfinished work which they who fought here have thus far so
nobly advanced. It is rather for us to be here dedicated to the great task remaining before
us -- that from these honored dead we take increased devotion to that cause for which
they gave the last full measure of devotion -- that we here highly resolve that these dead
shall not have died in vain -- that this nation, under God, shall have a new birth of
freedom -- and that government of the people, by the people, for the people, shall not
perish from the earth.
Source: Roy P. Basler, ed., The Collected Works of Abraham Lincoln, vol. 7 (1953-1955),
22.
INTRODUCTION EX PARTE MILLIGAN
A democracy, even at war, must retain its basic democratic character, or else it loses that
for which its citizens fight. War, however, places great strains on the body politic, and
occasionally individual liberties and the needs of the state come into conflict. The Civil
War had its share of overbearing governmental action, including Lincoln's questionable
suspension of habeas corpus -- the "great writ" of Anglo-American law that provided for
the release of people wrongfully imprisoned. Few of the government's actions came
under the scrutiny of the courts during the war, but once the Union had achieved victory,
the Supreme Court proved willing to hear some cases arising out of the conflict.
Lambden P. Milligan had been sentenced to death by an army court in Indiana for
allegedly disloyal activities. Lincoln delayed his execution, but after Lincoln's
assassination, the new president, Andrew Johnson, approved the sentence. Milligan's
attorney appealed for his release under the 1863 Habeas Corpus Act, and the federal
circuit court split on the question of whether civilian courts had jurisdiction over appeals
from military tribunals. Although this seems only a technical matter, the case gave the
Supreme Court a chance -- now that the fighting was over -- to comment on the limits of
the government's war powers.
In what many scholars hail as a landmark in constitutional protection of civil liberties, the
Court decided that military rule could not supersede the civil courts in areas where the
civil courts and government remained open and operational. Indiana had been a loyal
state, and its regular government and courts had functioned throughout the war. In such a
situation, the military courts had no jurisdiction over civilians.
Certainly the language of Milligan allows the courts to interpose themselves between the
citizenry on the one hand, and Congress, the president and the armed forces on the other.
There is little doubt that the Lincoln administration overreacted to threats of potential
disorder in the northern states, and the arbitrary use of executive authority -- often
without congressional approval -- could only be justified by the unique conditions
surrounding the Civil War. The Court's rebuff, however, came late, and its primary value
was as a precedent for future governmental action. The United States, fortunately, has
since been spared the problems of internal security in wartime to which Lincoln had to
respond.
For further reading: Charles Fairman, Reconstruction and Reunion, 1864-1888: Part One
(1971); Stanley I. Kutler, Judicial Power and Reconstruction Politics (1968); and S.
Klaus, ed., Milligan's Case (1929).
EX PARTE MILLIGAN (1866)
Justice Davis delivered the opinion of the Court:
On the 10th day of May, 1865, Lambden P. Milligan presented a petition to the Circuit
Court of the United States for the District of Indiana, to be discharged from an alleged
unlawful imprisonment...
Milligan insists that said military commission had no jurisdiction to try him upon the
charges preferred, or upon any charges whatever; because he was a citizen of the United
States and the State of Indiana, and had not been, since the commencement of the late
Rebellion, a resident of any of the States whose citizens were arrayed against the
government, and that the right of trial by jury was guaranteed to him by the Constitution
of the United States...
The importance of the main question presented by this record cannot be overstated; for it
involves the very framework of the government and the fundamental principles of
American liberty.
During the late wicked Rebellion, the temper of the times did not allow that calmness in
deliberation and discussion so necessary to a correct conclusion of a purely judicial
question. Then, considerations of safety were mingled with the exercise of power; and
feelings and interests prevailed which are happily terminated. Now that the public safety
is assured, this question, as well as all others, can be discussed and decided without
passion or the admixture of any element not required to form a legal judgment. We
approach the investigation of this case, fully sensible of the magnitude of the inquiry and
the necessity of full and cautious deliberation...
The controlling question in the case is this: Upon the facts stated in Milligan's petition,
and the exhibits filed, had the military commission mentioned in it jurisdiction, legally, to
try and sentence him? Milligan, not a resident of one of the rebellious states, or a prisoner
of war, but a citizen of Indiana for twenty years past and never in the military or naval
service, is, while at his home, arrested by the military power of the United States,
imprisoned, and, on certain criminal charges preferred against him, tried, convicted, and
sentenced to be hanged by a military commission, organized under the direction of the
military commander of the military district of Indiana. Had this tribunal the legal power
and authority to try and punish this man?
No graver question was ever considered by this court, nor one which more nearly
concerns the rights of the whole people; for it is the birthright of every American citizen
when charged with crime, to be tried and punished according to law. The power of
punishment is, alone through the means which the laws have provided for that purpose,
and if they are ineffectual, there is an immunity from punishment, no matter how great an
offender the individual may be, or how much his crimes may have shocked the sense of
justice of the country, or endangered its safety. By the protection of the law human rights
are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the
clamor of an excited people. If there was law to justify this military trial, it is not our
province to interfere; if there was not, it is our duty to declare the nullity of the whole
proceedings. The decision of this question does not depend on argument or judicial
precedents, numerous and highly illustrative as they are. These precedents inform us of
the extent of the struggle to preserve liberty and to relieve those in civil life from military
trials. The founders of our government were familiar with the history of that struggle; and
secured in a written constitution every right which the people had wrested from power
during a contest of ages. By that Constitution and the laws authorized by it this question
must be determined. The provisions of that instrument on the administration of criminal
justice are too plain and direct, to leave room for misconstruction or doubt of their true
meaning. Those applicable to this case are found in that clause of the original
Constitution which says, "That the trial of all crimes, except in case of impeachment,
shall be by jury"; and in the fourth, fifth, and sixth articles of the amendments...
Have any of the rights guaranteed by the Constitution been violated in the case of
Milligan? and if so, what are they?
Every trial involves the exercise of judicial power; and from what source did the military
commission that tried him derive their authority? Certainly no part of the judicial power
of the country was conferred on them; because the Constitution expressly vests it "in one
supreme court and such inferior courts as the Congress may from time to time ordain and
establish," and it is not pretended that the commission was a court ordained and
established by Congress. They cannot justify on the mandate of the President; because he
is controlled by law, and has his appropriate sphere of duty, which is to execute, not to
make, the laws; and there is "no unwritten criminal code to which resort can be had as a
source of jurisdiction."
But it is said that the jurisdiction is complete under the "laws and usages of war."
It can serve no useful purpose to inquire what those laws and usages are, whence they
originated, where found, and on whom they operate; they can never be applied to citizens
in states which have upheld the authority of the government, and where the courts are
open and their process unobstructed. This court has judicial knowledge that in Indiana the
Federal authority was always unopposed, and its courts always open to hear criminal
accusations and redress grievances; and no usage of war could sanction a military trial
there for any offence whatever of a citizen in civil life, in nowise connected with the
military service. Congress could grant no such power; and to the honor of our national
legislature be it said, it has never been provoked by the state of the country even to
attempt its exercise. One of the plainest constitutional provisions was, therefore, infringed
when Milligan was tried by a court not ordained and established by Congress, and not
composed of judges appointed during good behavior...
It is claimed that martial law covers with its broad mantle the proceedings of this military
commission. The proposition is this: that in a time of war the commander of an armed
force (if in his opinion the exigencies of the country demand it, and of which he is to
judge), has the power, within the lines of his military district, to suspend all civil rights
and their remedies, and subject citizens as well as soldiers to the rule of his will; and in
the exercise of his lawful authority cannot be restrained, except by his superior officer or
the President of the United States.
If this position is sound to the extent claimed, then when war exists, foreign or domestic,
and the country is subdivided into military departments for mere convenience, the
commander of one of them can, if he chooses, within his limits, on the plea of necessity,
with the approval of the Executive, substitute military force for and to the exclusion of
the laws, and punish all persons, as he thinks right and proper, without fixed or certain
rules.
The statement of this proposition shows its importance; for, if true, republican
government is a failure, and there is an end of liberty regulated by law. Martial law,
established on such a basis, destroys every guarantee of the Constitution, and effectually
renders the "military independent of and superior to the civil power" -- the attempt to do
which by the King of Great Britain was deemed by our fathers such an offence, that they
assigned it to the world as one of the causes which impelled them to declare their
independence. Civil liberty and this kind of martial law cannot endure together; the
antagonism is irreconcilable; and, in the conflict, one or the other must perish.
This nation, as experience has proved, cannot always remain at peace, and has no right to
expect that it will always have wise and humane rulers, sincerely attached to the
principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty
and contempt of law, may fill the place once occupied by Washington and Lincoln; and if
this right is conceded, and the calamities of war again befall us, the dangers to human
liberty are frightful to contemplate. If our fathers had failed to provide for just such a
contingency, they would have been false to the trust reposed in them. They knew -- the
history of the world told them -- the nation they were founding, be its existence short or
long, would be involved in war; how often or how long continued, human foresight could
not tell; and that unlimited power, wherever lodged at such a time, was especially
hazardous to freemen. For this, and other equally weighty reasons, they secured the
inheritance they had fought to maintain, by incorporating in a written constitution the
safeguards which time had proved were essential to its preservation. Not one of these
safeguards can the President, or Congress, or the Judiciary disturb, except the one
concerning the writ of habeas corpus.
It is essential to the safety of every government that, in a great crisis, like the one we have
just passed through, there should be a power somewhere of suspending the writ of habeas
corpus. In every war, there are men of previously good character, wicked enough to
counsel their fellow-citizens to resist the measures deemed necessary by a good
government to sustain its just authority and overthrow its enemies; and their influence
may lead to dangerous combinations. In the emergency of the times, an immediate public
investigation according to law may not be possible; and yet, the peril to the country may
be too imminent to suffer such persons to go at large. Unquestionably, there is then an
exigency which demands that the government, if it should see fit in the exercise of a
proper discretion to make arrests, should not be required to produce the persons arrested
in answer to a writ of habeas corpus. The Constitution goes no further. It does not say
after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by
the course of the common law; if it had intended this result, it was easy by the use of
direct words to have accomplished it. The illustrious men who framed that instrument
were guarding the foundations of civil liberty against the abuses of unlimited power; they
were full of wisdom, and the lessons of history informed them that a trial by an
established court, assisted by an impartial jury, was the only sure way of protecting the
citizen against oppression and wrong. Knowing this, they limited the suspension to one
great right, and left the rest to remain forever inviolable. But, it is insisted that the safety
of the country in time of war demands that this broad claim for martial law shall be
sustained. If this were true, it could be well said that a country, preserved at the sacrifice
of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is
not so.
It will be borne in mind that this is not a question of the power to proclaim martial law,
when war exists in a community and the courts and civil authorities are overthrown. Nor
is it a question what rule a military commander, at the head of his army, can impose on
states in rebellion to cripple their resources and quell the insurrection. The jurisdiction
claimed is much more extensive. The necessities of the service, during the late Rebellion,
required that the loyal states should be placed within the limits of certain military districts
and commanders appointed in them; and, it is urged, that this, in a military sense,
constituted them the theatre of military operations; and, as in this case, Indiana had been
and was again threatened with invasion by the enemy, the occasion was furnished to
establish martial law. The conclusion does not follow from the premises. If armies were
collected in Indiana, they were to be employed in another locality, where the laws were
obstructed and the national authority disputed. On her soil there was no hostile foot; if
once invaded, that invasion was at an end, and with it all pretext for martial law. Martial
law cannot arise from a threatened invasion. The necessity must be actual and present;
the invasion real, such as effectually closes the courts and deposes the civil
administration.
It is difficult to see how the safety of the country required martial law in Indiana. If any
of her citizens were plotting treason, the power of arrest could secure them, until the
government was prepared for their trial, when the courts were open and ready to try them.
It was as easy to protect witnesses before a civil as a military tribunal; and as there could
be no wish to convict, except on sufficient legal evidence, surely an ordained and
established court was better able to judge of this than a military tribunal composed of
gentlemen not trained to the profession of the law.
It follows, from what has been said on this subject, that there are occasions when martial
rule can be properly applied. If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice according to law, then, on the
theatre of active military operations, where war really prevails, there is a necessity to
furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the
army and society; and as no power is left but the military, it is allowed to govern by
martial rule until the laws can have their free course. As necessity creates the rule, so it
limits its duration; for, if this government is continued after the courts are reinstated, it is
a gross usurpation of power. Martial rule can never exist where the courts are open, and
in the proper and unobstructed exercise of their jurisdiction. It is also confined to the
locality of actual war.
Source: 4 Wallace (1866), 2.
PART V: INDUSTRIAL AMERICA
The United States underwent a period of enormous growth in the period between the
Civil War and World War I. Between 1870 and 1900 alone, the population doubled from
38.6 million people to 76 million people. Much of this growth came from immigrants
from Europe, and to make room for them, the country adopted the most liberal land
policy in its history. America, which had been primarily a rural nation, was rapidly
becoming urbanized, and the motor force behind all this change was the industrialization
of the country's economy. In the same three decades that the population doubled, the
nation's factories and mills quadrupled their output. Thanks to new technologies and new
products, Americans lived better and lived longer, and even common workers came to
enjoy the highest standard of living in the industrializing world.
But there was a price to be paid for all this progress. Factories polluted the air and water,
and working conditions in mines and factories were frequently unsafe. The intimate labor
relations of small stores and workshops gave way to the impersonalization of plants in
which thousands of workers toiled twelve hours a day or more for bare subsistence wages.
What worried many Americans most, however, was the effect this new industrialization
would have on the body politic. Prior to the Civil War, money played a relatively small
part in national politics. (In fact, America had only one millionaire in this era, John Jacob
Astor.) In towns and villages, and even in the small cities, local elites played a central
role in political life, but politics at the state and national levels were truly democratic.
What would happen if very rich individuals entered the political arena? How would the
individual who wanted to participate in the nation's political life fare against such
concentrations of wealth?
Reformers in this era worried constantly about the corruption of democracy, and sought a
variety of measures to keep the political system not only honest, but open to everyone.
Few of the reformers were anti-industry; there was no movement in the United States
comparable to the Luddites in England. Nor were all of the reformers even anti-bigness,
since many of them accepted as inevitable the growth of large industries.
But whatever their economic views, they shared the desire to keep the United States an
open and democratic society, and as we see in this section, that commitment took a
variety of forms.
For further reading: Robert Wiebe, The Search for Order, 1877-1920 (1967); Morton
Keller, Affairs of State (1977); John W. Chambers, The Tyranny of Change (1980); and
Richard Abrams, The Burdens of Progress (1978).
BACKGROUNDER ON THE MORRILL ACT
Once the South left the Union, the remaining northern states began passing a number of
measures which the South had blocked prior to 1860. Many of these laws, such as the
authorization of the transcontinental railroads, helped to spur on economic growth and
expansion in the western territories.
In 1862 Congress passed two such measures. The Homestead Act permitted any citizen,
or any person who intended to become a citizen, to receive 160 acres of public land, and
then to purchase it at a nominal fee after living on the land for five years. The Homestead
Act provided the most generous terms of any land act in American history to enable
people to settle and own their own farms.
Just as important was the Morrill Act of that year, which made it possible for the new
western states to establish colleges for their citizens. Ever since colonial times, basic
education had been a central tenet of American democratic thought. By the 1860s, higher
education was becoming more accessible, and many politicians and educators wanted to
make it possible for all young Americans to receive some sort of advanced education.
Sponsored by Congressman Justin Morrill of Vermont, who had been pressing for it since
1857, the act gave to every state that had remained in the Union a grant of 30,000 acres of
public land for every member of its congressional delegation. Since under the
Constitution every state had at least two senators and one representative, even the
smallest state received 90,000 acres. The states were to sell this land and use the proceeds
to establish colleges in engineering, agriculture and military science. Over seventy "land
grant" colleges, as they came to be known, were established under the original Morrill
Act; a second act in 1890 extended the land grant provisions to the sixteen southern states.
The importance of the land grant colleges cannot be exaggerated. Although originally
started as agricultural and technical schools, many of them grew, with additional state aid,
into large public universities which over the years have educated millions of American
citizens who otherwise might not have been able to afford college.
For further reading: Allen Nevins, The State Universities and Colleges (1962); Fred F.
Harderoad, Colleges and Universities for Change (1987); and Ralph D. Christy, A
Century of Service: Land-grant Colleges and Universities, 1890-1990 (1992).
THE MORRILL ACT (1862)
An Act donating Public Lands to the several States and Territories which may provide
Colleges for the Benefit of Agriculture and the Mechanic Arts.
Be it enacted by the Senate and House of Representatives of the United States of America
in Congress assembled, That there be granted to the several States, for the purposes
hereinafter mentioned, an amount of public land, to be apportioned to each State a
quantity equal to thirty thousand acres for each senator and representative in Congress to
which the States are respectively entitled by the apportionment under the census of
eighteen hundred and sixty: Provided, That no mineral lands shall be selected or
purchased under the provisions of this act.
Sec. 2. And be it further enacted, That the land aforesaid, after being surveyed, shall be
apportioned to the several States in sections or subdivisions of sections, not less than one
quarter of a section; and whenever there are public lands in a State subject to sale at
private entry at one dollar and twenty five cents per acre, the quantity to which said State
shall be entitled shall be selected from such lands within the limits of such State, and the
Secretary of the Interior is hereby directed to issue to each of the States in which there is
not the quantity of public lands subject to sale at private entry at one dollar and twentyfive cents per acre, to which said State may be entitled under the provisions of this act,
land scrip to the amount in acres for the deficiency of its distributive share: said scrip to
be sold by said States and the proceeds thereof applied to the uses and purposes
prescribed in this act, and for no other use or purpose whatsoever...
Sec. 4. And be it further enacted, That all moneys derived from the sale of the lands
aforesaid by the States to which the lands are apportioned, and from the sale of land scrip
hereinbefore provided for, shall be invested in stocks of the United States, or of the States,
or some other safe stocks, yielding not less than five per centum upon the par value of the
said stocks; and that the moneys so invested shall constitute a perpetual fund, the capital
of which shall remain forever undiminished, (except so far as may be provided in section
fifth of this act,) and the interest of which shall be inviolably appropriated, by each State
which may take and claim the benefits of this act, to the endowment, support, and
maintenance of at least one college where the leading object shall be, without excluding
other scientific and classical studies, and including military tactics, to teach such
branches of learning as are related to agriculture and mechanic arts, in such manner as the
legislatures of the State may respectively prescribe, in order to promote the liberal and
practical education of the industrial classes in the several pursuits and professions in life...
Sixth. No State while in a condition of rebellion or insurrection against the government of
the United States shall be entitled to the benefit of this Act...
Source: U.S. Statutes at Large 12 (1862): 503.
BACKGROUNDER ON THE PENDLETON ACT
The federal bureaucracy in the years after the Civil War was generally undistinguished,
because the system of selecting officials and supervising their work was irrational. That
system had evolved in the early nineteenth century, and relied on the well-known
political adage, "to the victor belong the spoils." That did not necessarily mean that bad
people were appointed; many government officials were quite good, but the system itself
was ill-suited to efficiency.
The idea of rotation in office, however, was thought to be "democratic." Andrew Jackson
in 1829 had declared: "No man has any more intrinsic right to official station than
another... The duties of all public officers are, or at least admit of being made, so plain
and simple that men of intelligence may readily qualify themselves for their
performance." This had not been true in 1829, and was certainly not true fifty years later.
The constant turnover provided no institutional memory; government workers panicked
at every election and had little sense of loyalty to their jobs, because their tenure was
often of such short duration. As Henry Clay put it, government officials after an election
are "like the inhabitants of Cairo when the plague breaks out; no one knows who is next
to encounter the stroke of death."
Over the years, the flaws became more serious and obvious. Political leaders required
their patronage appointees to devote time and money to party affairs. After each election
winners were besieged by hungry office-seekers, and wrangling between the president
and Congress over patronage became endemic. By the 1880s, one could open a
Washington newspaper after an election and find many advertisements like this one:
"WANTED -- A GOVERNMENT CLERKSHIP at a salary of not less than $1,000 per
annum. Will give $100 to any one securing me such a position."
The situation was compounded by the growth of the federal bureaucracy. In Jackson's
time there had been 20,000 persons on the federal payroll. By end of the Civil War the
number had increased to 53,000; by 1884, 131,000; and by 1891, 166,000. Presidents
were hounded by office- seekers. When James Garfield became president he discovered
hungry office-seekers "lying in wait" for him "like vultures for a wounded bison."
Moreover, new government jobs required special skills. The use of typewriters,
introduced in the early 1880s, meant that mere literacy and decent penmanship were no
longer enough for a clerk's job. With the creation of administrative agencies like the
Interstate Commerce Commission and specialized agricultural bureaus, one needed
scientific expertise. The spoils system was not the way to get them.
A civil service movement started in New York in 1877, and although it developed
considerable public support, the politicians refused to go along. Then came the
assassination of President Garfield by Charles Guiteau, a disappointed office-seeker, and
the public clamor could no longer be ignored.
The Pendleton Act classified certain jobs, removed them from the patronage ranks, and
set up a Civil Service Commission to administer a system based on merit rather than
political connections. As the classified list was expanded over the years, it provided the
American people with a competent and permanent government bureaucracy. In 1883
fewer than 15,000 jobs were classified; by the time McKinley became president in 1897,
86,000 -- almost half of all federal employees -- were in classified positions. Today, with
the exception of a few thousand policy-level appointments, nearly all federal jobs are
handled within the civil service system.
Fur further reading: Ari Hoogenboom, Outlawing the Spoils: A History of the Civil
Serivce Reform Movement, 1865-1883 (1961); Paul P. Van Riper, Hstory of the United
States Civil Service (1958).
THE PENDLETON ACT (1883)
An act to regulate and improve the civil service of the United States.
Be it enacted...That the President is authorized to appoint, by and with the advice and
consent of the Senate, three persons, not more than two of whom shall be adherents of the
same party, as Civil Service Commissioners, and said three commissioners shall
constitute the United States Civil Service Commission. Said commissioners shall hold no
other official place under the United States.
Sec. 2. That it shall be the duty of said commissioners:
First. To aid the President, as he may request, in preparing suitable rules for carrying this
act into effect, and when said rules shall have been promulgated it shall be the duty of all
officers of the United States in the departments and offices to which any such rules may
relate to aid, in all proper ways, in carrying said rules, and any modifications thereof, into
effect.
Second. And, among other things, said rules shall provide and declare, as nearly as the
conditions of good administration will warrant, as follows:
First, for open, competitive examinations for testing the fitness of applicants for the
public service now classified or to be classified hereunder. Such examinations shall be
practical in their character, and so far as may be shall relate to those matters which will
fairly test the relative capacity and fitness of the persons examined to discharge the duties
of the service into which they seek to be appointed.
Second, that all the offices, places, and employments so arranged or to be arranged in
classes shall be filled by selections according to grade from among those graded highest
as the results of such competitive examinations.
Third, appointments to the public service aforesaid in the departmentsat Washington shall
be apportioned among the several States and Territories and the District of Columbia
upon the basis of population as ascertained at the last preceding census...
Fourth, that there shall be a period of probation before any absolute appointment or
employment aforesaid.
Fifth, that no person in the public service is for that reason under any obligations to
contribute to any political fund, or to render any political service, and that he will not be
removed or otherwise prejudiced for refusing to do so.
Sixth, that no person in said service has any right to use his official authority or influence
to coerce the political action of any person or body. Seventh, there shall be noncompetitive examinations in all proper cases before the commission, when competent
persons do not compete, after notice has been given of the existence of the vacancy,
under such rules as may be prescribed by the commissioners as to the manner of giving
notice...
Third. Said commission shall, subject to the rules that may be made by the President,
make regulations for, and have control of, such examinations...
Sec. 3...The commission shall, at Washington, and in one or more places in each State
and Territory where examinations are to take place, designate and select a suitable
number of persons, not less than three, in the official service of the United States,
residing in said State or Territory, after consulting the head of the department or office in
which such persons serve, to be members of boards of examiners...Such boards of
examiners shall be so located as to make it reasonably convenient and inexpensive for
applicants to attend before them and where there are persons to be examined in any State
or Territory, examinations shall be held therein at least twice in each year...
Sec. 6. That within sixty days after the passage of this act it shall be the duty of the
Secretary of the Treasury, in as near conformity as may be to the classification of certain
clerks now existing under...[Section 163]...of the Revised Statutes, to arrange in classes
the several clerks and persons employed by the collector, naval officer, surveyor, and
appraisers, or either of them, or being in the public service, at their respective offices in
each customs district where the whole number of said clerks and persons shall be all
together as many as fifty. And thereafter, from time to time, on the direction of the
President, said Secretary shall make the like classification or arrangement of clerks and
persons so employed, in connection with any said office or offices, in any other customs
district. And, upon like request, and for the purposes of this act, said Secretary shall
arrange in one or more of said classes, or of existing classes, any other clerks, agents, or
persons employed under his department in any said district not now classified; and every
such arrangement and classification upon being made shall be reported to the President.
Second. Within said sixty days it shall be the duty of the Postmaster-General, in general
conformity to said...[Section 163,]...to separately arrange in classes the several clerks and
persons employed, or ================in the public service, at each post-office, or
under any postmaster of the United States, where the whole number of said clerks and
persons shall together amount to as many as fifty. And thereafter, from time to time, on
the direction of the President, it shall be the duty of the Postmaster-General to arrange in
like classes the clerks and persons so employed in the postal service in connection with
any other post-office; and every such arrangement and classification upon being made
shall be reported to the President.
Third. That from time to time said Secretary, the Postmaster-General, and each of the
heads of departments mentioned in...[Section 158]...of the Revised Statutes, and each
head of an office, shall, on the direction of the President, and for facilitating the execution
of this act, respectively revise any then existing classification or arrangement of those in
their respective departments and offices, and shall, for the purposes of the examination
herein provided for, include in one or more of such classes, so far as practicable,
subordinate places, clerks, and officers in the public service pertaining to their respective
departments not before classified for examination.
Sec. 7. That after the expiration of six months from the passage of this act no officer or
clerk shall be appointed, and no person shall be employed to enter or be promoted in
either of the said classes now existing, or that may be arranged hereunder pursuant to said
rules, until he has passed an examination, or is shown to be specially exempted from such
examination in conformity herewith. But nothing herein contained shall be construed to
take from those honorably discharged from the military or naval service any preference
conferred by...[Section 1754]...of the Revised Statutes, nor to take from the President any
authority not inconsistent with this act conferred by... [Section 1758]... of said statutes;
nor shall any officer not in the executive branch of the government, or any person merely
employed as a laborer or workman, be required to be classified hereunder; nor, unless by
direction of the Senate, shall any person who has been nominated for confirmation by the
Senate be required to be classified or to pass an examination.
Sec. 8. That no person habitually using intoxicating beverages to excess shall be
appointed to, or retained in, any office, appointment, or employment to which the
provisions of this act are applicable.
Sec. 9. That whenever there are already two or more members of a family in the public
service in the grades covered by this act, no other member of such family shall be eligible
to appointment to grades.
Sec. 10. That no recommendation of any person who shall apply for office or place under
the provisions of this act which may be given by any Senator or member of the House of
Representatives, except as to the character or residence of the applicant, shall be received
or considered by any person concerned in making any examination or appointment under
this act.
Sec. 11. That no Senator, or Representative, or Territorial Delegate of the Congress, or
Senator, Representative, or Delegate elect, or any officer or employee of either of said
houses, and no executive, judicial, military, or naval officer of the United States, and no
clerk or employee of any department, branch or bureau of the executive, judicial, or
military or naval service of the United States, shall, directly or indirectly, solicit or
receive, or be in any manner concerned in soliciting or receiving, any assessment,
subscription, or contribution for any political purpose whatever, from any officer, clerk,
or employee of the United States, or any department, branch, or bureau thereof, or from
any person receiving any salary or compensation from moneys derived from the Treasury
of the United States...
Source: U.S. Statutes at Large 22 (1883): 403.
PEOPLE'S PARTY PLATFORM
Farmers as a group did not share in the general prosperity of the latter nineteenth century,
and believed that they had been marked out as special victims of the new industrial
system. Beginning in the 1870s, they attempted in a number of ways to mount an
effective political campaign to rectify what they saw as the corruption of government and
economic power, which they attributed to big businesses and railroads. In fact, much of
the farmers' plight was due to factors unrelated to industrialization, such as fluctuations in
international markets for corn and wheat. But perceptions are often more important than
reality, and American farmers believed that the democratic system of their forebears was
being subverted.
The most successful of the agrarian political movements was the People's Party, or the
Populist Party, which after the 1892 presidential campaign appeared to have the strength
to become a potent force in American politics. Its strength lay primarily in the southern
and midwestern states, the agricultural heartland of the nation, although its leaders tried
to reach out and attract eastern workers.
The People's Party platform of 1896 is notable for several reasons. First, it summed up
two decades of resentment by farmers against a system that they believed ignored their
needs and mercilessly exploited them. But it was not just big business to which they
objected. The Populists worried that the alliance between business and government would
destroy American democracy, and the various proposals they put forward had two aims.
The goal was not just to relieve economic pressure on agriculture, but also to restore
democracy by eliminating what the Populists saw as the corrupt and corrupting alliance
between business and government.
Although considered radical at the time, many of these proposals, such as the direct
election of senators and the income tax, would move into the political mainstream and be
adopted over the next few decades. The platform in many ways set the reform agenda of
the country during the years prior to World War I.
The Populist Party disappeared after the election of 1896, absorbed for the most part into
the Democratic Party.
For further reading: John D. Hicks, The Populist Revolt (1931); Richard Hofstadter, The
Age of Reform (1955); and Lawrence Goodwyn, The Populist Movement (1978).
PEOPLE'S PARTY PLATFORM (1896)
The People's Party, assembled in National Convention, reaffirms its allegiance to the
principles declared by the founders of the Republic, and also to the fundamental
principles of just government as enunciated in the platform of the party in 1892.
We recognize that through the connivance of the present and preceding Administrations
the country has reached a crisis in its National life, as predicted in our declaration four
years ago, and that prompt and patriotic action is the supreme duty of the hour.
We realize that, while we have political independence, our financial and industrial
independence is yet to be attained by restoring to our country the Constitutional control
and exercise of the functions necessary to a people's government, which functions have
been basely surrendered by our public servants to corporate monopolies. The influence of
European moneychangers has been more potent in shaping legislation than the voice of
the American people. Executive power and patronage have been used to corrupt our
legislatures and defeat the will of the people, and plutocracy has thereby been enthroned
upon the ruins of democracy. To restore the Government intended by the fathers, and for
the welfare and prosperity of this and future generations, we demand the establishment of
an economic and financial system which shall make us masters of our own affairs and
independent of European control, by the adoption of the following declarations of
principles:
The Finances
1. We demand a National money, safe and sound, issued by the General Government
only, without the intervention of banks of issue, to be a full legal tender for all debts,
public and private; a just, equitable, and efficient means of distribution, direct to the
people, and through the lawful disbursements of the Government.
2. We demand the free and unrestricted coinage of silver and gold at the present legal
ratio of 16 to 1, without waiting for the consent of foreign nations.
3. We demand that the volume of circulating medium be speedily increased to an amount
sufficient to meet the demand of the business and population, and to restore the just level
of prices of labor and production.
4. We denounce the sale of bonds and the increase of the public interest-bearing debt
made by the present Administration as unnecessary and without authority of law, and
demand that no more bonds be issued, except by specific act of Congress.
5. We demand such legislation as will prevent the demonetization of the lawful money of
the United States by private contract.
6. We demand that the Government, in payment of its obligation, shall use its option as to
the kind of lawful money in which they are to be paid, and we denounce the present and
preceding Administrations for surrendering this option to the holders of Government
obligations.
7. We demand a graduated income tax, to the end that aggregated wealth shall bear its
just proportion of taxation, and we regard the recent decision of the Supreme Court
relative to the income-tax as a misinterpretation of the Constitution and an invasion of the
rightful powers of Congress over the subject of taxation.
8. We demand that postal savings-banks be established by the Government for the safe
deposit of the savings of the people and to facilitate exchange.
Railroads and Telegraphs
1. Transportation being a means of exchange and a public necessity, the Government
should own and operate the railroads in the interest of the people and on a non-partisan
basis, to the end that all may be accorded the same treatment in transportation, and that
the tyranny and political power now exercised by the great railroad corporations, which
result in the impairment, if not the destruction of the political rights and personal liberties
of the citizens, may be destroyed. Such ownership is to be accomplished gradually, in a
manner consistent with sound public policy.
2. The interest of the United States in the public highways built with public moneys, and
the proceeds of grants of land to the Pacific railroads, should never be alienated,
mortgaged, or sold, but guarded and protected for the general welfare, as provided by the
laws organizing such railroads. The foreclosure of existing liens of the United States on
these roads should at once follow default in the payment thereof by the debtor companies;
and at the foreclosure sales of said roads the Government shall purchase the same, if it
becomes necessary to protect its interests therein, or if they can be purchased at a
reasonable price; and the Government shall operate said railroads as public highways for
the benefit of the whole people, and not in the interest of the few, under suitable
provisions for protection of life and property, giving to all transportation interests equal
privileges and equal rates for fares and freight.
3. We denounce the present infamous schemes for refunding these debts, and demand
that the laws now applicable thereto be executed and administered according to their
intent and spirit.
4. The telegraph, like the Post Office system, being a necessity for the transmission of
news, should be owned and operated by the Government in the interest of the people.
The Public Lands
1. True policy demands that the National and State legislation shall be such as will
ultimately enable every prudent and industrious citizen to secure a home, and therefore
the land should not be monopolized for speculative purposes. All lands now held by
railroads and other corporations in excess of their actual needs should by lawful means be
reclaimed by the Government and held for actual settlers only, and private land monopoly,
as well as alien ownership, should be prohibited.
2. We condemn the land grant frauds by which the Pacific railroad companies have
through the connivance of the Interior Department, robbed multitudes of bona-fide
settlers of their homes and miners of their claims, and we demand legislation by Congress
which will enforce the exemption of mineral land from such grants after as well before
the patent.
3. We demand that bona-fide settlers on all public lands be granted free homes, as
provided in the National Homestead Law, and that no exception be made in the case of
Indian reservations when opened for settlement, and that all lands not now patented come
under this demand.
The Referendum
We favor a system of direct legislation through the initiative and referendum, under
proper Constitutional safeguards.
Direct Election of President and Senators by the People
We demand the election of President, Vice-President, and United States Senators by a
direct vote of the people...
The Territories
We favor home rule in the Territories and the District of Columbia, and the early
admission of the Territories as States.
Public Salaries
All public salaries should be made to correspond to the price of labor and its products.
Employment to Be Furnished by Government
In times of great industrial depression, idle labor should be employed on public works as
far as practicable.
Arbitrary Judicial Action
The arbitrary course of the courts in assuming to imprison citizens for indirect contempt
and ruling by injunctions should be prevented by proper legislation.
Pensions
We favor pensions for our disabled Union soldiers.
A Fair Ballot
Believing that the elective franchise and an untrammeled ballot are essential to a
government of, for, and by the people, the People's party condemns the wholesale system
of disfranchisement adopted in some States as unrepublican and undemocratic, and we
declare it to be the duty of the several State legislatures to take such actions as will secure
a full, free and fair ballot and an honest count.
The Financial Question "The Pressing Issue"
While the foregoing propositions constitute the platform upon which our party stands,
and for the vindication of which its organization will be maintained, we recognize that
the great and pressing issue of the pending campaign, upon which the present election
will turn, is the financial question, and upon this great and specific issue between the
parties we cordially invite the aid and co-operation of all organizations and citizens
agreeing with us upon this vital question.
Source: National Party Platforms, 1840-1972 (Johnson and Porter, eds., 1973), 104.
BACKGROUNDER ON THE COURT OPINION ON
THE MULLER V. OREGON CASE
One main goal of the Progressive movement, which lasted from the late 1890s until
World War I, was to ameliorate the worst aspects of industrialization -- fouling of the
environment, abuse of workers, exploitation of consumers and corruption of the political
process. Starting in the state legislatures, reformers passed a variety of statutes, including
factory safety laws, workmen's compensation, minimum wages and maximum hours.
But conservatives were able to block some of these programs in the courts, where they
appealed to a judiciary imbued with the notions that private property was sacrosanct and
that legislatures should not be able to tell people how to use their property. Courts also
sustained the notion of "liberty to contract," claiming that employers and employees
should be able to negotiate without state interference. The courts did acknowledge that
the state had an inherent police power, by which it could interfere with property and labor
contracts in order to protect the health and safety of citizens.
But in the 1905 case of Lochner v. New York, a bare majority of the Supreme Court had
ruled that a law limiting bakery workers to a ten-hour day was unconstitutional, because
such a measure bore no relation to the workers' health or safety. The Court conceded,
however, that such measures might be permissible if it could be shown that the law did in
fact serve to protect health or safety.
When the state of Oregon established a ten-hour workday for women in laundries and
factories, business owners attacked it on the grounds that, like the New York law, it bore
no relation to the women's health or safety. To defend the law, Oregon turned to the
noted Boston attorney Louis D. Brandeis, who had already won a reputation for
defending the public interest. Brandeis seized upon the opening in Lochner, namely, that
if he could show how the Oregon law related to worker health and safety, then the Court
would have to sustain it. He de-vised a highly unusual brief. He covered the traditional
legal precedents in just two pages, and then filled over 100 pages with sociological,
economic and physiological data on the effect of long working hours on the health of
women.
Justice Brewer's opinion not only acknowledged the brief, a highly unusual step, but
conceded that women were in fact different from men, and thus needed this type of
factory protection. Brandeis's strategy had worked, but it was a strategy for the times; he
himself did not consider women inferior or subservient to men.
The most important result of the Brandeis brief and of the decision in this case is that it
set the model for all future reformers attempting to use the law to affect social and
political conditions. Muller democratized the law, in that it made it more open to the
everyday facts of life; it called upon justices to take into account the effect of their
decisions on the real world and on the lives of real people.
For further reading: Philippa Strum, Louis D. Brandeis: Justice for the People (1984);
Alpheus T. Mason, "The Case of the Overworked Laundress," in Quarrels That Have
Shaped the Constitution (1975).
MULLER V. OREGON (1908)
Justice Brewer delivered the opinion of the Court.
We held in Lochner v. New York (1905) that a law providing that no laborer shall be
required or permitted to work in a bakery more than sixty hours in a week or ten hours in
a day was not as to men a legitimate exercise of the police power of the State, but an
unreasonable, unnecessary and arbitrary interference with the right and liberty of the
individual to contract in relation to his labor, and as such was in conflict with, and void
under, the Federal Constitution. That decision is invoked by plaintiff in error as decisive
of the question before us. But this assumes that the difference between the sexes does not
justify a different rule respecting a restriction of the hours of labor.
In patent cases counsel are apt to open the argument with a discussion of the state of the
art. It may not be amiss, in the present case, before examining the constitutional question,
to notice the course of legislation as well as expressions of opinion from other than
judicial sources. In the brief filed by Mr. Louis D. Brandeis, for the defendant in error, is
a very copious collection of all these matters...
The legislation and opinions referred to... may not be, technically speaking, authorities,
and in them is little or no discussion of the constitutional question presented to us for
determination, yet they are significant of a widespread belief that woman's physical
structure, and the functions she performs in consequence thereof, justify special
legislation restricting or qualifying the conditions under which she should be permitted to
toil. Constitutional questions, it is true, are not settled by even a consensus of present
public opinion, for it is the peculiar value of a written constitution that it places in
unchanging form limitations upon legislative action, and thus gives a permanence and
stability to popular government which otherwise would be lacking. At the same time,
when a question of fact is debated and debatable, and the extent to which a special
constitutional limitation goes is affected by the truth in respect to that fact, a widespread
and long continued belief concerning it is worthy of consideration. We take judicial
cognizance of all matters of general knowledge.
It is undoubtedly true, as more than once declared by this court, that the general right to
contract in relation to one's business is part of the liberty of the individual, protected by
the Fourteenth Amendment to the Federal Constitution; yet it is equally well settled that
this liberty is not absolute and extending to all contracts, and that a State may, without
conflicting with the provisions of the Fourteenth Amendment, restrict in many respects
the individual's power of contract...
That woman's physical structure and the performance of maternal functions place her at a
disadvantage in the struggle for subsistence is obvious. This is especially true when the
burdens of motherhood are upon her. Even when they are not, by abundant testimony of
the medical fraternity continuance for a long time on her feet at work, repeating this from
day to day, tends to injurious effects upon the body, and as healthy mothers are essential
to vigorous offspring, the physical well-being of woman becomes an object of public
interest and care in order to preserve the strength and vigor of the race...
The two sexes differ in structure of body, in the functions to be performed by each, in the
amount of physical strength, in the capacity for long-continued labor, particularly when
done standing, the influence of vigorous health upon the future well-being of the race, the
self-reliance which enables one to assert full rights, and in the capacity to maintain the
struggle for subsistence. This difference justifies a difference in legislation and upholds
that which is designed to compensate for some of the burdens which rest upon her...
For these reasons, and without questioning in any respect the decision in Lochner v. New
York, we are of the opinion that it cannot be adjudged that the act in question is in
conflict with the Federal Constitution, so far as it respects the work of a female in a
laundry.
Source: 208 U.S. 412 (1908).
THEODORE ROOSEVELT
During his tenure in the White House, Theodore Roosevelt had shown how powerful that
office could be in marshalling reform sentiment. He believed that the president had to be
responsive to the will of the people, but that he also had an obligation to lead and not
merely follow the mob.
Roosevelt's successor, William Howard Taft, proved far more conservative than
Roosevelt had realized, and by 1910 the ex-president was harboring ideas that he might
run for office again in 1912. That summer and fall Roosevelt set out on a speaking tour of
the West, where he was greeted with cheering throngs and party regulars demanding that
he challenge Taft for the 1912 nomination. It was during this speaking tour that
Roosevelt began to articulate his own version of progressive reform, which he called the
"New Nationalism," and which would be the basis for his campaign for the presidency.
The New Nationalism was not a shallow piece of rhetoric thrown together for the
campaign; it represented a carefully thought-through analysis of American society and
the role that government ought to play. Roosevelt had been intuitively moving in this
direction during his second term, but he found the historical and philosophical analysis he
needed in a book by Herbert Croly entitled The Promise of American Life (1909). Croly
argued that there were two basic strands in American political thought, which he termed
Hamiltonian and Jeffersonian. The former, Croly argued, had become identified in the
public mind with strong government, aristocracy and special privilege, while the
Jeffersonian dogma of weak government had become identified with democracy, equal
rights and equal opportunity. Croly called for an amalgam of the two, the use of
Hamiltonian means to achieve Jeffersonian ends. Americans had to do this, Croly argued,
because of the new facts of industrial life.
Roosevelt read the book and grew very excited, as a number of ideas with which he had
been toying now fell into place. In his famous speech at Ossowatomie, Kansas, on
August 31, 1910, he sounded the keynote of what would become his campaign theme in
1912.
The old nationalism, he claimed, had been used by sinister, special interests. He now
proposed a New Nationalism of dynamic democracy that would recognize the
inevitability of economic concentration; to counter the power of the giant corporations,
Roosevelt proposed bringing them under complete federal control, so as to protect the
interests of the laboring man and the consumer.
The importance of the speech lies less in its immediate campaign connotation than in the
fact that it contains the political and intellectual kernel of the modern American welfare
state.
For further reading: William Harbaugh, Power and Responsibility: The Life and Times of
Theodore Roosevelt (1961); John Morton Blum, The Republican Roosevelt (1954);
George E. Mowry, The Era of Theodore Roosevelt (1958).
THE NEW NATIONALISM (1910)
We come here to-day to commemorate one of the epoch-making events of the long
struggle for the rights of man -- the long struggle for the uplift of humanity. Our country - this great republic -- means nothing unless it means the triumph of a real democracy, the
triumph of popular government, and, in the long run, of an economic system under which
each man shall be guaranteed the opportunity to show the best that there is in him. That is
why the history of America is now the central feature of the history of the world; for the
world has set its face hopefully toward our democracy; and, O my fellow citizens, each
one of you carries on your shoulders not only the burden of doing well for the sake of
your own country, but the burden of doing well and of seeing that this nation does well
for the sake of mankind.
There have been two great crises in our country's history: first, when it was formed, and
then, again, when it was it was perpetuated; and, in the second of these great crises -- in
the time of stress and strain which culminated in the Civil War, on the outcome of which
depended the justification of what had been done earlier, you men of the Grand Army,
you men who fought through the Civil War, not only did you justify your generation, not
only did you render life worth living for our generation, but you justified the wisdom of
Washington and Washington's colleagues. If this republic had been founded by them only
to be split asunder into fragments when the strain came, then the judgement of the world
would have been that Washington's work was not worth doing. It was you who crowned
Washington's work, as you carried to achievement the high purpose of Abraham Lincoln.
Now, with this second period of our history the name of John Brown will be forever
associated; and Kansas was the theater upon which the first act of the second of our great
national life dramas was played. It was the result of the struggle in Kansas which
determined that our country should be in deed as well as in name devoted to both union
and freedom; that the experiment of democratic government on a national scale should
succeed and not fail. In name we had the Declaration of Independence in 1776; but we
gave the lie by our acts to the words of the Declaration of Independence until 1865; and
words count for nothing except in so far as they represent act. This is true everywhere;
but, O my friends, it should be truest of all in political life. A broken promise is bad
enough in private life. It is worse in the field of politics. No man is worth his salt in
public life who makes on the stump a pledge which he does not keep after election; and,
if he makes such a pledge and does not keep it, hunt him out of public life. I care for the
great deeds of the past chiefly as spurs to drive us onward in the present. I speak of the
men of the past partly that they may be honored by our praise of them, but more that they
may serve as examples for the future.
It was a heroic struggle; and, as is inevitable with all such struggles, it had also a dark and
terrible side. Very much was done of good, and much also of evil; and, as was inevitable
in such a period of revolution, often the same man did both good and evil. For our great
good fortune as a nation, we, the people of the United States as a whole can now afford to
forget the evil, or, at least, to remember it without bitterness, and to fix our eyes with
pride only on the good that was accomplished. Even in ordinary times there are very few
of us who do not see the problems of life as through a glass, darkly; and when the glass is
clouded by the murk of furious popular passion, the vision of the best and the bravest is
dimmed. Looking back, we are all of us now able to do justice to the valor and the
disinterestedness and the love of the right, as to each it was given to see the right, shown
both by the men of the North and the men of the South in that contest which was finally
decided by the attitude of the West. We can admire the heroic valor, the sincerity, the
self-devotion shown alike by the men who wore the blue and the men who wore the gray;
and our sadness that such men should have had to fight one another is tempered by the
glad knowledge that ever hereafter their descendants shall be found fighting side by side,
struggling in peace as well as in war for the uplift of their common country, all alike
resolute to raise to the highest pitch of honor and usefulness the nation to which they all
belong. As for the veterans of the Grand Army of the Republic, they deserve honor and
recognition such as is paid to no other citizens of the republic; for to them the republic
owes its all; for to them it owes its very existence. It is because of what you and your
comrades did in the dark years that we of to-day walk, each of us, head erect, and proud
that we belong, not to one dozen little squabbling contemptible commonwealths, but to
the mightiest nation upon which the sun shines.
I do not speak of this struggle of the point past merely from the historic standpoint. Our
interest is primarily in the application to-day of the lessons taught by the contest of half a
century ago. It is of little use for us to pay lip loyalty to the mighty men of the past unless
we sincerely endeavor to apply to the problems of the present precisely the qualities
which in other crises enabled the men of that day to meet those crises. It is half
melancholy and half amusing to see the way in which well-meaning people gather to do
honor to the men who, in company with John Brown, and under the lead of Abraham
Lincoln, faced and solved the great problems of the nineteenth century, while, at the same
time, these same good people nervously shrink from, frantically denounce, those who are
trying to meet the problems of the twentieth century in the spirit which was accountable
for the successful resolution of the problems of Lincoln's time.
Of that generation of men to whom we owe so much, the man to whom we owe most, is
of course, Lincoln. Part of our debt to him is because he forecast our present struggle and
saw the way out. He said: -"I hold that while man exists it is his duty to improve not only his own condition, but to
assist in ameliorating mankind."
And again: -"Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could
never have existed if labor had not first existed. Labor is the superior of capital, and
deserves much the higher consideration.
"If that remark was original with me, I should be even more strongly denounced as a
communist agitator than I shall be anyhow. It is Lincoln's. I am only quoting it; and that
is one side; that is the side the capitalist should hear. Now, let the workingman hear his
side.
"Capital has its rights, which are as worthy of protection as any other rights... Nor should
this lead to a war upon the owners of property. Property is the fruit of labor;... property is
desirable; is a positive good in the world."
And then comes a thoroughly Lincolnlike sentence: -"Let not him who is houseless pull down the house of another, but let him work diligently
and build one for himself, thus by example assuring that his own shall be safe from
violence when built."
It seems to me that, in these words, Lincoln took substantially the attitude that we ought
to take; he showed the proper sense of proportion in his relative estimates of capital and
labor, of human rights and property rights. Above all, in this speech, as in many others,
he taught a lesson in wise kindliness and charity; an indispensable lesson to us of today.
But this wise kindliness and charity never weakened his arm or numbed his heart. We
cannot afford weakly to blind ourselves to the actual conflict which faces us to-day. The
issue is joined, and we must fight or fail.
In every wise struggle for human betterment one of the main objects, and often the only
object, has been to achieve in large measure equality of opportunity. In the struggle for
this great end, nations rise from barbarism to civilization, and through it people press
forward from one stage of enlightenment to the next. One of the chief factors in progress
is the destruction of special privilege. The essence of any struggle for healthy liberty has
always been, and must always be, to take from some one man or class of men the right to
enjoy power, or wealth, or position, or immunity, which has not been earned by service to
his or their fellows. That is what you fought for in the Civil War, and that is what we
strive for now.
At many stages in the advance of humanity, this conflict between the men who possess
more than they have earned and the men who have earned more than they possess is the
central condition of progress. In our day it appears as the struggle of free men to gain and
hold the right of self-government as against the special interests, who twist the methods
of free government into machinery for defeating the popular will. At every stage, and
under all circumstances, the essence of the struggle is to equalize opportunity, destroy
privilege, and give to the life and citizenship of every individual the highest possible
value both to himself and to the commonwealth. That is nothing new. All I ask in civil
life is what you fought for in the Civil War. I ask that civil life be carried on according to
the spirit in which the army was carried on. You never get perfect justice, but the effort in
handling the army was to bring to the front the men who could do the job. Nobody
grudged promotion to Grant, or Sherman, or Thomas, or Sheridan, because they earned it.
The only complaint was when a man got promotion which he did not earn.
Practical equality of opportunity for all citizens, when we achieve it, will have two great
results. First, every man will have a fair chance to make of himself all that in him lies; to
reach the highest point to which his capacities, unassisted by special privilege of his own
and unhampered by the special privilege of others, can carry him, and to get for himself
and his family substantially what he has earned. Second, equality of opportunity means
that the commonwealth will get from every citizen the highest service of which he is
capable. No man who carries the burden of the special privileges of another can give to
the commonwealth that service to which it is fairly entitled.
I stand for the square deal. But when I say that I am for the square deal, I mean not
merely that I stand for fair play under the present rules of the game, but that I stand for
having those rules changed so as to work for a more substantial equality of opportunity
and of reward for equally good service. One word of warning, which, I think, is hardly
necessary in Kansas. When I say I want a square deal for the poor man, I do not mean
that I want a square deal for the man who remains poor because he has not got the energy
to work for himself. If a man who has had a chance will not make good, then he has got
to quit. And you men of the Grand Army, you want justice for the brave man who fought,
and punishment for the coward who shirked his work. Is not that so?
Now, this means that our government, national and state, must be freed from the sinister
influence or control of special interests. Exactly as the special interests of cotton and
slavery threatened our political integrity before the Civil War, so now the great special
business interests too often control and corrupt the men and methods of government for
their own profit. We must drive the special interests out of politics. That is one of our
tasks to-day. Every special interest is entitled to justice -- full, fair, and complete, -- and,
now, mind you, if there were any attempt by mob violence to plunder and work harm to
the special interest, whatever it may be, that I most dislike, and the wealthy man,
whomsoever he may be, for whom I have the greatest contempt, I would fight for him,
and you would if you were worth your salt. He should have justice. For every special
interest is entitled to justice, but not one is entitled to a vote in Congress, to a voice on the
bench, or to representation in any public office. The Constitution guarantees protection to
property, and we must make that promise good. But it does not give the right of suffrage
to any corporation.
The true friend of property, the true conservative, is he who insists that property shall be
the servant and not the master of the commonwealth; who insists that the creature of
man's making shall be the servant and not the master of the man who made it. The
citizens of the United States must effectively control the mighty commercial forces which
they have themselves called into being.
There can be no effective control of corporations while their politi-cal activity remains.
To put an end to it will be neither a short nor an easy task, but it can be done.
We must have complete and effective publicity of corporate affairs, so that the people
may know beyond peradventure whether the corporations obey the law and whether their
management entitles them to the confidence of the public. It is necessary that laws should
be passed to prohibit the use of corporate funds directly or indirectly for political
purposes; it is still more necessary that such laws should be thoroughly enforced.
Corporate expenditures for political purposes, and especially such expenditures by public
service corporations, have supplied one of the principal sources of corruption in our
political affairs.
It has become entirely clear that we must have government supervision of the
capitalization, not only of public service corporations, including, particularly, railways,
but of all corporations doing an interstate business. I do not wish to see the nation forced
into the ownership of the railways if it can possibly be avoided, and the only alternative is
thoroughgoing and effective regulation, which shall be based on a full knowledge of all
the facts, including a physical valuation of property. This physical valuation is not needed,
or, at least, is very rarely needed, for fixing rates; but it is needed as the basis of honest
capitalization. We have come to recognize that franchises should never be granted except
for a limited time, and never without proper provision for compensation to the public. It
is my personal belief that the same kind and degree of control and supervision which
should be exercised over public service corporations should be extended also to
combinations which control necessaries of life, such as meat, oil, and coal, or which deal
in them on an important scale. I have no doubt that the ordinary man who has control of
them is much like ourselves. I have no doubt he would like to do well, but I want to have
enough supervision to help him realize that desire to do well.
I believe that the officers, and, especially, the directors, of corporations should be held
personally responsible when any corporation breaks the law.
Combinations in industry are the result of an imperative economic law which cannot be
repealed by political legislation. The effort at prohibiting all combination has
substantially failed. The way out lies, not in attempting to prevent such combinations, but
in completely controlling them in the interest of the public welfare. For that purpose the
Federal Bureau of Corporations is an agency of first importance. Its powers, and,
therefore, its efficiency, as well as that of the Interstate Commerce Commission, should
be largely increased. We have a right to expect from the Bureau of Corporations and from
the Interstate Commerce Commission a very high grade of public service. We should be
as sure of the proper conduct of the interstate railways and the proper management of
interstate business as we are now sure of the conduct and management of the national
banks, and we should have as effective supervision in one case as in the other. The
Hepburn Act, and the amendment to the Act in the shape in which it finally passed
Congress at the last session, represent a long step in advance, and we must go yet further.
There is a widespread belief among our people that, under the methods of making tariffs
which have hitherto obtained, the special interests are too influential. Probably this is true
of both the big special interests and the little special interests. These methods have put a
premium on selfishness, and, naturally, the selfish big interests have gotten more than
their smaller, though equally selfish, brothers. The duty of Congress is to provide a
method by which the interest of the whole people shall be all that receives consideration.
To this end there must be an expert tariff commission, wholly removed from the
possibility of political pressure or of improper business influence. Such a commission can
find the real difference between cost of production, which is mainly the difference of
labor cost here and abroad. As fast as its recommendations are made, I believe in revising
one schedule at a time. A general revision of the tariff almost inevitably leads to logrolling and the subordination of the general public interest to local and special interests.
The absence of effective state, and, especially, national, restraint upon unfair money
getting has tended to create a small class of enormously wealthy and economically
powerful men, whose chief object is to hold and increase their power. The prime need is
to change the conditions which enable these men to accumulate power which it is not for
the general welfare that they should hold or exercise. We grudge no man a fortune which
represents his own power and sagacity, when exercised with entire regard to the welfare
of his fellows. Again, comrades over there, take the lesson from your own experience.
Not only did you not grudge, but you gloried in the promotion of the great generals who
gained their promotion by leading the army to victory. So it is with us. We grudge no
man a fortune in civil life if it is honorably obtained and well used. It is not even enough
that it should have been gained without doing damage to the community. We should
permit it to be gained only so long as the gaining represents benefit to the community.
This, I know, implies a policy of a far more active governmental interference with social
and economic conditions in this country than we have yet had, but I think we have got to
face the fact that such an increase in governmental control is now necessary.
No man should receive a dollar unless that dollar has been fairly earned. Every dollar
received should represent a dollar's worth of service rendered -- not gambling in stocks,
but service rendered. The really big fortune, the swollen fortune, by the mere fact of its
size acquires qualities which differentiate it in kind as well as in degree from what is
possessed by men of relatively small means. Therefore, I believe in a graduated income
tax on big fortunes, and in another tax which is far more easily collected and far more
effective -- a graduated inheritance tax on big fortunes, properly safeguarded against
evasion and increasing rapidly in amount with the size of the estate.
The people of the United States suffer from periodical financial panics to a degree
substantially unknown among the other nations which approach us in financial strength.
There is no reason why we should suffer what they escape. It is of profound importance
that our financial system should be promptly investigated, and so thoroughly and
effectively revised as to make it certain that hereafter our currency will no longer fail at
critical times to meet our needs.
It is hardly necessary for me to repeat that I believe in an efficient army and a navy large
enough to secure for us abroad that respect which is the surest guarantee of peace. A
word of special warning to my fellow citizens who are as progressive as I hope I am. I
want them to keep up their interest in our internal affairs; and I want them also
continually to remember Uncle Sam's interests abroad. Justice and fair dealing among
nations rest upon principles identical with those which control justice and fair dealing
among the individuals of which nations are composed, with the vital exception that each
nation must do its own part in international police work. If you get into trouble here, you
can call for the police; but if Uncle Sam gets into trouble, he has got to be his own
policeman, and I want to see him strong enough to encourage the peaceful aspirations of
other peoples in connection with us. I believe in national friendships and heartiest good
will to all nations; but national friendships, like those between men, must be founded on
respect as well as on liking, on forbearance as well as upon trust. I should be heartily
ashamed of any American who did not try to make the American government act as justly
toward the other nations in international relations as he himself would act toward any
individual in private relations. I should be heartily ashamed to see us wrong a weaker
power, and I should hang my head forever if we tamely suffered wrong from a stronger
power.
Of conservation I shall speak more at length elsewhere. Conservation means development
as much as it does protection. I recognize the right and duty of this generation to develop
and use the natural resources of our land; but I do not recognize the right to waste them,
or to rob, by wasteful use, the generations that come after us. I ask nothing of the nation
except that it so behave as each farmer here behaves with reference to his own children.
That farmer is a poor creature who skins the land and leaves it worthless to his children.
The farmer is a good farmer who, having enabled the land to support himself and to
provide for the education of his children, leaves it to them a little better than he found it
himself. I believe the same thing of a nation.
Moreover, I believe that the natural resources must be used for the benefit of all our
people, and not monopolized for the benefit of the few, and here again is another case in
which I am accused of taking a revolutionary attitude. People forget now that one
hundred years ago there were public men of good character who advocated the nation
selling its public lands in great quantities, so that the nation could get the most money out
of it, and giving it to the men who could cultivate it for their own uses. We took the
proper democratic ground that the land should be granted in small sections to the men
who were actually to till it and live on it. Now, with the water power, with the forests,
with the mines, we are brought face to face with the fact that there are many people who
will go with us in conserving the resources only if they are to be allowed to exploit them
for their benefit. That is one of the fundamental reasons why the special interests should
be driven out of politics. Of all the questions which can come before this nation, short of
the actual preservation of its existence in a great war, there is none which compares in
importance with the great central task of leaving this land even a better land for our
descendants than it is for us, and training them into a better race to inhabit the land and
pass it on. Conservation is a great moral issue, for it involves the patriotic duty of
insuring the safety and continuance of the nation. Let me add that the health and vitality
of our people are at least as well worth conserving as their forests, waters, lands, and
minerals, and in this great work the national government must bear a most important part.
I have spoken elsewhere also of the great task which lies before the farmers of the
country to get for themselves and their wives and children not only the benefits of better
farming, but also those of better business methods and better conditions of life on the
farm. The burden of this great task will fall, as it should, mainly upon the great
organizations of the farmers themselves. I am glad it will, for I believe they are all well
able to handle it. In particular, there are strong reasons why the Departments of
Agriculture of the various states, the United States Department of Agriculture, and the
agricultural colleges and experiment stations should extend their work to cover all phases
of farm life, instead of limiting themselves, as they have far too often limited themselves
in the past, solely to the question of the production of crops. And now a special word to
the farmer. I want to see him make the farm as fine a farm as it can be made; and let him
remember to see that the improvement goes on indoors as well as out; let him remember
that the farmer's wife should have her share of thought and attention just as much as the
farmer himself.
Nothing is more true than that excess of every kind is followed by reaction; a fact which
should be pondered by reformer and reactionary alike. We are face to face with new
conceptions of the relations of property to human welfare, chiefly because certain
advocates of the rights of property as against the rights of men have been pushing their
claims too far. The man who wrongly holds that every human right is secondary to his
profit must now give way to the advocate of human welfare, who rightly maintains that
every man holds his property subject to the general right of the community to regulate its
use to whatever degree the public welfare may require it.
But I think we may go still further. The right to regulate the use of wealth in the public
interest is universally admitted. Let us admit also the right to regulate the terms and
conditions of labor, which is the chief element of wealth, directly in the interest of the
common good. The fundamental thing to do for every man is to give him a chance to
reach a place in which he will make the greatest possible contribution to the public
welfare. Understand what I say there. Give him a chance, not push him up if he will not
be pushed. Help any man who stumbles; if he lies down, it is a poor job to try to carry
him; but if he is a worthy man, try your best to see that he gets a chance to show the
worth that is in him. No man can be a good citizen unless he has a wage more than
sufficient to cover the bare cost of living, and hours of labor short enough so that after his
day's work is done he will have time and energy to bear his share in the management of
the community, to help in carrying the general load. We keep countless men from being
good citizens by the conditions of life with which we surround them. We need
comprehensive workmen's compensation acts, both state and national laws to regulate
child labor and work for women, and, especially, we need in our common schools not
merely education in book learning, but also practical training for daily life and work. We
need to enforce better sanitary conditions for our workers and to extend the use of safety
appliances for our workers in industry and commerce, both within and between the states.
Also, friends, in the interest of the workingman himself we need to set our faces like flint
against mob violence just as against corporate greed; against violence and injustice and
lawlessness by wage workers just as much as against lawless cunning and greed and
selfish arrogance of employers. If I could ask but one thing of my fellow countrymen, my
request would be that, whenever they go in for reform, they remember the two sides, and
that they always exact justice from one side as much as from the other. I have small use
for the public servant who can always see and denounce the corruption of the capitalist,
but who cannot persuade himself, especially before election, to say a word about lawless
mob violence. And I have equally small use for the man, be he a judge on the bench, or
editor of a great paper, or wealthy and influential private citizen, who can see clearly
enough and denounce the lawlessness of mob violence, but whose eyes are closed so that
he is blind when the question is one of corruption in business on a gigantic scale. Also
remember what I said about excess in reformer and reactionary alike. If the reactionary
man, who thinks of nothing but the rights of property, could have his way, he would
bring about a revolution; and one of my chief fears in connection with progress comes
because I do not want to see our people, for lack of proper leadership, compelled to
follow men whose intentions are excellent, but whose eyes are a little too wild to make it
really safe to trust them. Here in Kansas there is one paper which habitually denounces
me as the tool of Wall Street, and at the same time frantically repudiates the statement
that I am a Socialist on the ground that that is an unwarranted slander of the Socialists.
National efficiency has many factors. It is a necessary result of the principle of
conservation widely applied. In the end it will determine our failure or success as a nation.
National efficiency has to do, not only with natural resources and with men, but it is
equally concerned with institutions. The state must be made efficient for the work which
concerns only the people of the state; and the nation for that which concerns all the
people. There must remain no neutral ground to serve as a refuge for lawbreakers, and
especially for lawbreakers of great wealth, who can hire the vulpine legal cunning which
will teach them how to avoid both jurisdictions. It is a misfortune when the national
legislature fails to do its duty in providing a national remedy, so that the only national
activity is the purely negative activity of the judiciary in forbidding the state to exercise
power in the premises.
I do not ask for overcentralization; but I do ask that we work in a spirit of broad and farreaching nationalism when we work for what concerns our people as a whole. We are all
Americans. Our common interests are as broad as the continent. I speak to you here in
Kansas exactly as I would speak in New York or Georgia, for the most vital problems are
those which affect us all alike. The national government belongs to the whole American
people, and where the whole American people are interested, that interest can be guarded
effectively only by the national government. The betterment which we seek must be
accomplished, I believe, mainly through the national government.
The American people are right in demanding that New Nationalism, without which we
cannot hope to deal with new problems. The New Nationalism puts the national need
before sectional or personal advantage. It is impatient of the utter confusion that results
from local legislatures attempting to treat national issues as local issues. It is still more
impatient of the impotence which springs from overdivision of governmental powers, the
impotence which makes it possible for local selfishness or for legal cunning, hired by
wealthy special interests, to bring national activities to a deadlock. This New Nationalism
regards the executive power as the steward of the public welfare. It demands of the
judiciary that it shall be interested primarily in human welfare rather than in property, just
as it demands that the representative body shall represent all the people rather than any
one class or section of the people. I believe in shaping the ends of government to protect
property as well as human welfare. Normally, and in the long run, the ends are the same;
but whenever the alternative must be faced, I am for men and not for property, as you
were in the Civil War. I am far from underestimating the importance of dividends; but I
rank dividends below human character. Again, I do not have any sympathy with the
reformer who says he does not care for dividends. Of course, economic welfare is
necessary, for a man must pull his own weight and be able to support his family. I know
well that the reformers must not bring upon the people economic ruin, or the reforms
themselves will go down in the ruin. But we must be ready to face temporary disaster,
whether or not brought on by those who will war against us to the knife. Those who
oppose all reform will do well to remember that ruin in its worst form is inevitable if our
national life brings us nothing better than swollen fortunes for the few and the triumph in
both politics and business of a sordid and selfish materialism.
If our political institutions were perfect, they would absolutely prevent the political
domination of money in any part of our affairs. We need to make our political
representatives more quickly and sensitively responsive to the people whose servants
they are. More direct action by the people in their own affairs under proper safeguards is
vitally necessary. The direct primary is a step in this direction, if it is associated with a
corrupt practices act effective to prevent the advantage of the man willing recklessly and
unscrupulously to spend money over his more honest competitor. It is particularly
important that all moneys received or expended for campaign purposes should be
publicly accounted for, not only after election, but before election as well. Political action
must be made simpler, easier, and freer from confusion for every citizen. I believe that
the prompt removal of unfaithful or incompetent public servants should be made easy and
sure in whatever way experience shall show to be most expedient in any given class of
cases.
One of the fundamental necessities in a representative government such as ours is to
make certain that the men to whom the people delegate their power shall serve the people
by whom they are elected, and not the special interests. I believe that every national
officer, elected or appointed, should be forbidden to perform any service or receive any
compensation, directly or indirectly, from interstate corporations; and a similar provision
could not fail to be useful within the states.
The object of government is the welfare of the people. The material progress and
prosperity of a nation are desirable chiefly so far as they lead to the moral and material
welfare of all good citizens. Just in proportion as the average man and woman are honest,
capable of sound judgment and high ideals, active in public affairs, -- but, first of all,
sound in their home life, and the father and mother of healthy children whom they bring
up well, -- just so far, and no farther, we may count our civilization a success. We must
have -- I believe we have already -- a genuine and permanent moral awakening, without
which no wisdom of legislation or administration really means anything; and, on the
other hand, we must try to secure the social and economic legislation without which any
improvement due to purely moral agitation is necessarily evanescent. Let me again
illustrate by a reference to the Grand Army. You could not have won simply as a
disorderly and disorganized mob. You needed generals; you needed careful
administration of the most advanced type; and a good commissary -- the cracker line.
You well remember that success was necessary in many different lines in order to bring
about general success. You had to have the administration at Washington good, just as
you had to have the administration in the field; and you had to have the work of the
generals good. You could not have triumphed without that administration and leadership;
but it would all have been worthless if the average soldier had not had the right stuff in
him. He had to have the right stuff in him, or you could not get it out of him. In the last
analysis, therefore, vitally necessary though it was to have the right kind of organization
and the right kind of generalship, it was even more vitally necessary that the average
soldier should have the fighting edge, the right character. So it is in our civil life. No
matter how honest and decent we are in our private lives, if we do not have the right kind
of law and the right kind of administration of the law, we cannot go forward as a nation.
That is imperative; but it must be an addition to, and not a substitution for, the qualities
that make us good citizens. In the last analysis, the most important elements in any man's
career must be the sum of those qualities which, in the aggregate, we speak of as
character. If he has not got it, then no law that the wit of man can devise, no
administration of the law by the boldest and strongest executive, will avail to help him.
We must have the right kind of character -- character that makes a man, first of all, a
good man in the home, a good father, a good husband -- that makes a man a good
neighbor. You must have that, and, then, in addition, you must have the kind of law and
the kind of administration of the law which will give to those qualities in the private
citizen the best possible chance for development. The prime problem of our nation is to
get the right type of good citizenship, and, to get it, we must have progress, and our
public men must be genuinely progressive.
Source: Theodore Roosevelt, The New Nationalism (1911), 3-33.
WOODROW WILSON
Opposing Taft and Roosevelt in the 1912 campaign was Woodrow Wilson, who up until
a few years earlier had been a professor of political science and history, and then
president of Princeton University. Following his defeat in an academic battle with the
dean of the graduate school, Wilson, who had always wanted to enter politics, accepted
the invitation of the state Democratic machine to be its gubernatorial candidate in 1910.
He proved an adept campaigner, won, and then to the machine's chagrin, became a
reformer, pushing through progressive legislation in New Jersey aimed at controlling the
large corporations.
Wilson won the Democratic nomination in 1912, but at the start of the campaign he did
not have a real platform. He was essentially a states' rights, Jeffersonian democrat who
opposed the trusts, but did not know what to do about them. Moreover, Roosevelt's idea
of a strong federal government upset him as much as the idea of monopoly.
Then, just as Roosevelt had discovered Croly, Wilson met Louis Brandeis, who helped
the presidential candidate put his ideas into a coherent form. The two men worked out
what Wilson came to call the "New Freedom." Instead of regulating monopoly, as
Roosevelt suggested, they proposed to establish and enforce strict rules of competition.
Wilson and Brandeis believed that big businesses could be controlled not by direct
government regulation, but by making rules that would make it impossible for them to
abuse their power.
Wilson appealed to democracy and to the "young men on the make," people trying to
enter the businesses or professions who found their opportunities circumscribed by the
big corporations. For democracy to survive, he argued, the political process had to be free
of the corrupting influence of gigantic monopolies. "This is a second struggle for
emancipation," he declared in a campaign speech in Denver. "If America is not to have
free enterprise, then she can have freedom of no sort whatever."
Wilson won the election, although with only a plurality of the popular vote, but there was
no doubt that the American people expected his administration to be one of reform. In
one of the most literate inaugural speeches in American history, Wilson, in lofty and
often poetic phrases, articulated his dream of social righteousness and outlined the steps
his administration would take.
The New Freedom represents an alternative vision to that of Theodore Roosevelt's New
Nationalism, and while the welfare state has been the dominant motif in modern
American history, Wilson's vision of a small-unit economy presided over by a
government of limited powers still appeals strongly to many Americans.
For further reading: Arthur S. Link, Wilson: The New Freedom (1956); John Milton
Cooper, Jr., The Warrior and the Priest (1983); and David Sarasohn, The Party of Reform:
The Democrats in the Progressive Era (1989).
FIRST INAUGURAL (1913)
My Fellow Citizens:
There has been a change of government. It began two years ago, when the House of
Representatives became Democratic by a decisive majority. It has now been completed.
The Senate about to assemble will also be Democratic. The offices of President and VicePresident have been put into the hands of Democrats. What does the change mean? That
is the question that is uppermost in our minds to-day. That is the question I am going to
try to answer, in order, if I may, to interpret the occasion.
It means much more than the mere success of a party. The success of a party means little
except when the Nation is using that party for large and definite purpose. No one can
mistake the purpose for which the Nation now seeks to use the Democratic Party. It seeks
to use it to interpret a change in its own plans and point of view. Some old things with
which we had grown familiar, and which had begun to creep into the very habit of our
thought and of our lives, have altered their aspect as we have latterly looked critically
upon them, with fresh, awakened eyes; have dropped their disguises and shown new
things, as we look frankly upon them, willing to comprehend their real character, have
come to assume the aspect of things long believed in and familiar, stuff of our own
convictions. We have been refreshed by a new insight into our own life.
We see that in many things that life is very great. It is incomparably great in its material
aspects, in its body of wealth, in the diversity and sweep of its energy, in the industries
which have been conceived and built up by genius of individual men and the limitless
enterprise of groups of men. It is great, also, very great, in its moral force.
Nowhere else in the world have noble men and women exhibited in more striking forms
the beauty and the energy of sympathy and helpfulness and counsel in their efforts to
rectify wrong, alleviate suffering, and set the weak in the way of strength and hope. We
have built up, moreover, a great system of government, which has stood through a long
age as in many respects a model for those who seek to set liberty upon foundations that
will endure against fortuitous change, against storm and accident. Our life contains every
great thing, and contains it in rich abundance.
But the evil has come with the good, and much fine gold has been corroded. With riches
has come inexcusable waste. We have squandered a great part of what we might have
used, and have not stopped to conserve the exceeding bounty of nature without which our
genius for enterprise would have been worthless and impotent, scorning to be careful,
shamefully prodigal as well as admirably efficient. We have been proud of our industrial
achievements, but we have not hitherto stopped thoughtfully enough to count the human
cost, the cost of lives snuffed out, of energies overtaxed and broken, the fearful physical
and spiritual cost to the men and women and children upon whom the dead weight and
burden of it all has fallen pitilessly the years through. The groans and agony of it all had
not yet reached our ears, the solemn, moving undertone of our life, coming up out of the
mines and factories and out of every home where the struggle had its intimate and
familiar seat. With the great Government went many deep secret things which we too
long delayed to look into and scrutinize with candid, fearless eyes. The great Government
we loved has too often been made use of for private and selfish purposes, and those who
used it had forgotten the people.
At last a vision has been vouchsafed us of our life as a whole. We see the bad with the
good, the debased and decadent with the sound and vital. With this vision we approach
new affairs. Our duty is to cleanse, to reconsider, to restore, to correct the evil without
impairing the good, to purify and humanize every process of our common life without
weakening or sentimentalizing it. There has been something crude and heartless and
unfeeling in our haste to succeed and be great. Our thought has been "Let every man look
out for himself, let every generation look out for itself," while we reared giant machinery
which made it impossible that any but those who stood at the levers of control should
have a chance to look out for themselves. We had not forgotten our morals. We
remembered well enough that we had set up policy which was meant to serve the
humblest as well as the most powerful, with an eye single to the standards of justice and
fair play, and remembered it with pride. But we were very heedless and in a hurry to be
great.
We have come now to the sober second thought. The scales of heedlessness have fallen
from our eyes. We have made up our minds to square every process of our national life
again with the standards we so proudly set up at the beginning and have always carried at
our hearts. Our work is a work of restoration.
We have itemized with some degree of particularity the things that ought to be altered
and here are some of the chief items: A tariff which cuts us off from our proper part in
the commerce of the world, violates the just principles of taxation, and makes the
Government a facile instrument in the hands of private interests; a banking and currency
system based upon the necessity of the Government to sell its bonds fifty years ago and
perfectly adapted to concentrating cash and restricting credits; an industrial system which,
take it on all its sides, financial as well as administrative, holds capital in leading strings,
restricts the liberties and limits the opportunities of labor, and exploits without renewing
or conserving the natural resources of the country; a body of agricultural activities never
yet given the efficiency of great business undertakings or served as it should be through
the instrumentality of science taken directly to the farm, or afforded the facilities of credit
best suited to its practical needs; water-courses undeveloped, waste places unreclaimed,
forests untended, fast disappearing without plan or prospect of renewal, unregarded waste
heaps at every mine. We have the most effective means of production, but we have not
studied cost or economy as we should either as organizers of industry, as statesmen, or as
individuals.
Nor have we studied and perfected the means by which government may be put at the
service of humanity, in safeguarding the health of the Nation, the health of its men and its
women and its children, as well as their rights in the struggle for existence. This is no
sentimental duty. The firm basis of government is justice, not pity. These are matters of
justice. There can be no equality or opportunity, the first essential of justice in the body
politic, if men and women and children be not shielded in their lives, their very vitality,
from the consequences of great industrial and social processes which they can not alter,
control, or singly cope with. Society must see to it that it does not itself crush or weaken
or damage its own constituent parts. The first duty of law is to keep sound the society it
serves. Sanitary laws, pure food laws, and laws determining conditions of labor which
individuals are powerless to determine for themselves are intimate parts of the very
business of justice and legal efficiency.
These are some of the things we ought to do, and not leave the others undone, the old
fashioned, never-to-be-neglected, fundamental safeguarding of property and of individual
right. This is the high enterprise of the new day: To lift everything that concerns our life
as a Nation to the light that shines from the hearthfire of every man's conscience and
vision of the right. It is inconceivable that we should do this as partisans; it is
inconceivable we should do it in ignorance of the facts as they are or in blind haste. We
shall restore, not destroy. We shall deal with our economic system as it is and as it may
be modified, not as it might be if we had a clean sheet of paper to write upon; and step by
step we shall make it what it should be, in the spirit of those who question their own
shallow self-satisfaction of the excitement of excursions whither they can not tell. Justice,
and only justice, shall always be our motto.
And yet it will be no cool process of mere science. The Nation has been deeply stirred,
stirred by solemn passion, stirred by the knowledge of wrong, of ideals lost, of
government too often debauched and made an instrument of evil. The feelings with which
we face this new age of right and opportunity sweep across our heartstrings like some air
out of God's own presence, where justice and mercy are reconciled and the judge and the
brother are one. We know our task to be no mere task of politics but a task which shall
search us through and through, whether we be able to understand our time and the need
of our people, whether we be indeed their spokesmen and interpreters, whether we have
the pure heart to comprehend and the rectified will to choose our high course of action.
This is not a day of triumph; it is a day of dedication. Here muster, not the forces of party,
but the forces of humanity. Men's hearts wait upon us; men's lives hang in the balance;
men's hopes call upon us to say what we will do. Who shall live up to the great trust?
Who dares fail to try? I summon all honest men, all patriotic, all forward-looking men, to
my side. God helping me, I will not fail them, if they will but counsel and sustain me!
Source: Arthur S. Link et al., eds., The Papers of Woodrow Wilson, vol. 27 (1978), 148.
PART VI: ON THE ROAD FROM SLAVERY TO
FREEDOM
In the 1870s, black men and women might have been expected to look forward to a bright
future. But the false dawn immediately after the Civil War soon gave way to nearly a
century of legal, economic and social discrimination. Whatever the Fourteenth
Amendment may have said about equal protection and citizenship, blacks in America
enjoyed few of the blessings of liberty; they remained outsiders, condemned by the white
majority as inferior.
By the 1890s, the South had erected a system of legally enforced segregation in which
blacks were relegated to a decidedly inferior status, and the Supreme Court had endorsed
the notion of "separate but equal," claiming that the Fourteenth Amendment's Equal
Protection Clause had never been intended to promote social equality between the races.
The separate facilities were far from equal, and beyond that, were designed to keep
African Americans in a subordinate position.
Civil rights groups never accepted segregation, and began a long and slow campaign in
the courts to do away with it. World War II gave their struggle a new impetus. The fight
against Nazi racism made many Americans take a closer look at racism at home, and the
nation as a whole finally began taking measures to give African Americans their full legal
and civil rights.
It has been a slow struggle, with progress often measured in small increments, but there
has been progress, and the position of black Americans today has markedly improved
over that of a half-century ago. Moreover, legal racism of the type that kept southern
blacks from voting and relegated to separate and inferior schools is gone, wiped out by
both court decisions and civil rights legislation.
The struggle for civil rights is one of the great chapters in the history of American
democracy, because it has brought millions of Americans closer to becoming fully equal
citizens. No one, however, would claim that the struggle is over, or that African
Americans today enjoy full equality. The legacy of centuries of discrimination still takes
a toll, and the debate today is not over whether blacks should be able to vote or to attend
the schools of their choice, but what additional measures, such as affirmative action,
should be taken to promote their progress. The answers are neither simple nor clear, but
the fact that they are being asked and debated is a key element in the continuing vitality
of the democratic process.
INTRODUCTION TO THE COURT OPINION ON
THE PLESSY V. FERGUSON CASE
There has been an ongoing debate among historians over the origins of racial segregation
in this country in the decades after emancipation. One group of scholars has argued that
segregation was not a predestined pattern of racial relations in the post-war South. White
masters and black slaves had lived and worked in close proximity before the Civil War,
and a variety of patterns of racial relations existed in the 1870s and 1880s. Although
southern states did not erect the legal structures that supported an extensive system of
social, economic and political segregation until the 1890s, white hostility had permeated
southern race relations for over two centuries. What is certain is that the traditions of
racism, white hostility toward blacks and the inability of the black minority to protect
itself after northern troops went home disadvantaged the former slaves from the start.
Every southern state had enacted black codes immediately after the war to keep the
former slaves under tight control. After these had been voided by the Union, white
southerners began exploring other means to maintain their supremacy over blacks.
Southern legislatures enacted criminal statutes that invariably prescribed harsher
penalties for blacks than for whites convicted of the same crime, and erected a system of
peonage that survived into the early twentieth century.
In an 1878 case, the Supreme Court ruled that the states could not prohibit segregation on
common carriers, such as railroads, streetcars or steamboats. Twelve years later, it
approved a Mississippi statute requiring segregation on intrastate carriers. In doing so it
acquiesced in the South's solution to race relations.
In the best known of the early segregation cases, Plessy v. Ferguson (1896), Justice
Billings Brown asserted that distinctions based on race ran afoul of neither the Thirteenth
or Fourteenth Amendments, two of the Civil War amendments passed to abolish slavery
and secure the legal rights of the former slaves.
Although nowhere in the opinion can the phrase "separate but equal" be found, the
Court's rulings approved legally enforced segregation as long as the law did not make
facilities for blacks inferior to those of whites.
In his famous and eloquent dissent, Justice Harlan protested that states could not impose
criminal penalties on a citizen simply because he or she wished to use the public
highways and common carriers. Such laws defeated the whole purpose of the Civil War
amendments. His pleas that the "Constitution is color-blind" fell on deaf ears.
For further reading: C. Vann Woodward, The Strange Career of Jim Crow (2d ed., 1966);
William Gillette, Retreat from Reconstruction (1979); and Charles A. Lofgren, The
Plessy Case (1987).
PLESSY V. FERGUSON (1896)
Justice Brown delivered the opinion of the Court.
This case turns upon the constitutionality of an act of the General Assembly of the State
of Louisiana, passed in 1890, providing for separate railway carriages for the white and
colored races...
The constitutionality of this act is attacked upon the ground that it conflicts both with the
Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth
Amendment, which prohibits certain restrictive legislation on the part of the States.
1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and
involuntary servitude, except as a punishment for crime, is too clear for argument...
The proper construction of the 14th amendment was first called to the attention of this
court in the Slaughter-house cases,...which involved, however, not a question of race, but
one of exclusive privileges. The case did not call for any expression of opinion as to the
exact rights it was intended to secure to the colored race, but it was said generally that its
main purpose was to establish the citizenship of the negro; to give definitions of
citizenship of the United States and of the States, and to protect from the hostile
legislation of the States the privileges and immunities of citizens of the United States, as
distinguished from those of citizens of the States.
The object of the amendment was undoubtedly to enforce the absolute equality of the two
races before the law, but in the nature of things it could not have been intended to abolish
distinctions based upon color, or to enforce social, as distinguished from political equality,
or a commingling of the two races upon terms unsatisfactory to either. Laws permitting,
and even requiring, their separation in places where they are liable to be brought into
contact do not necessarily imply the inferiority of either race to the other, and have been
generally, if not universally, recognized as within the competency of the state legislatures
in the exercise of their police power. The most common instance of this is connected with
the establishment of separate schools for white and colored children, which has been held
to be a valid exercise of the legislative power even by courts of States where the political
rights of the colored race have been longest and most earnestly enforced...
So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces
itself to the question whether the statute of Louisiana is a reasonable regulation, and with
respect to this there must necessarily be a large discretion on the part of the legislature. In
determining the question of reasonableness it is at liberty to act with reference to the
established usages, customs and traditions of the people, and with a view to the
promotion of their comfort, and the preservation of the public peace and good order.
Gauged by this standard, we cannot say that a law which authorizes or even requires the
separation of the two races in public conveyances is unreasonable, or more obnoxious to
the Fourteenth Amendment than the acts of Congress requiring separate schools for
colored children in the District of Columbia, the constitutionality of which does not seem
to have been questioned, or the corresponding acts of state legislatures.
We consider the underlying fallacy of the plaintiff's argument to consist in the
assumption that the enforced separation of the two races stamps the colored race with a
badge of inferiority. If this be so, it is not by reason of any-thing found in the act, but
solely because the colored race chooses to put that construction upon it. The argument
necessarily assumes that if, as has been more than once the case, and is not unlikely to be
so again, the colored race should become the dominant power in the state legislature, and
should enact a law in precisely similar terms, it would thereby relegate the white race to
an inferior position. We imagine that the white race, at least, would not acquiesce in this
assumption. The argument also assumes that social prejudices may be overcome by
legislation, and that equal rights cannot be secured to the negro except by an enforced
commingling of the two races. We cannot accept this proposition. If the two races are to
meet upon terms of social equality, it must be the result of natural affinities, a mutual
appreciation of each other's merits and a voluntary consent of individuals...Legislation is
powerless to eradicate racial instincts or to abolish distinctions based upon physical
differences, and the attempt to do so can only result in accentuating the difficulties of the
present situation. If the civil and political rights of both races be equal one cannot be
inferior to the other civilly or politically. If one race be inferior to the other socially, the
Constitution of the United States cannot put them upon the same plane...
Justice Harlan, dissenting.
While there may be in Louisiana persons of different races who are not citizens of the
United States, the words in the act, "white and colored races," necessarily include all
citizens of the United States of both races residing in that State. So that we have before us
a state enactment that compels, under penalties, the separation of the two races in railroad
passenger coaches, and makes it a crime for a citizen of either race to enter a coach that
has been assigned to citi-zens of the other race...
In respect of civil rights, common to all citizens, the Constitution of the United States
does not, I think, permit any public authority to know the race of those entitled to be
protected in the enjoyment of such rights. Every true man has pride of race, and under
appropriate circumstances when the rights of others, his equals before the law, are not to
be affected, it is his privilege to express such pride and to take such action based upon it
as to him seems proper. But I deny that any legislative body or judicial tribunal may have
regard to the race of citizens when the civil rights of those citizens are not involved.
Indeed, such legislation, as that here in question, is inconsistent not only with that
equality of rights which pertains to citizenship, National and State, but with the personal
liberty enjoyed by every one within the United States...
The white race deems itself to be the dominant race in this country. And so it is, in
prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will
continue to be for all time, if it remains true to its great heritage and holds fast to the
principles of constitutional liberty. But in view of the Constitution, in the eye of the law,
there is in this country no superior, dominant, ruling class of citizens. There is no caste
here. Our Constitution is color-blind, and neither knows nor tolerates classes among
citizens. In respect of civil rights, all citizens are equal before the law. The humblest is
the peer of the most powerful. The law regards man as man, and takes no account of his
surroundings or of his color when his civil rights as guaranteed by the supreme law of the
land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor
of the fundamental law of the land, has reached the conclusion that it is compe-tent for a
State to regulate the enjoyment by citizens of their civil rights solely upon the basis of
race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as
pernicious as the decision made by this tribunal in the Dred Scott case...The present
decision, it may well be apprehended, will not only stimulate aggressions, more or less
brutal and irritating, upon the admitted rights of colored citizens, but will encourage the
belief that it is possible, by means of state enactments, to defeat the beneficent purposes
which the people of the United States had in view when they adopted the recent
amendments of the Constitution, by one of which the blacks of this country were made
citizens of the United States and of the States in which they respectively reside, and
whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty
millions of whites are in no danger from the presence here of eight millions of blacks.
The destinies of the two races, in this country, are indissolubly linked together, and the
interests of both require that the common government of all shall not permit the seeds of
race hate to be planted under the sanction of law. What can more certainly arouse race
hate, what more certainly create and perpetuate a feeling of distrust between these races,
than state enactments, which, in fact, proceed on the ground that colored citizens are so
inferior and degraded that they cannot be allowed to sit in public coaches occupied by
white citizens? That, as all will admit, is the real meaning of such legislation as was
enacted in Louisiana...
If evils will result from the commingling of the two races upon public highways
established for the benefit of all, they will be infinitely less than those that will surely
come from state legislation regulating the enjoyment of civil rights upon the basis of race.
We boast of the freedom enjoyed by our people above all other peoples. But it is difficult
to reconcile that boast with a state of the law which, practically, puts the brand of
servitude and degradation upon a large class of our fellow-citizens, our equals before the
law...
I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of
citizens, white and black, in that State, and hostile to both the spirit and letter of the
Constitution of the United States. If laws of like character should be enacted in the
several States of the Union, the effect would be in the highest degree mischievous.
Slavery, as an institution tolerated by law would, it is true, have disappeared from our
country, but there would remain a power in the States, by sinister legislation, to interfere
with the full enjoyment of the blessings of freedom; to regulate civil rights, common to
all citizens upon the basis of race; and to place in a condition of legal inferiority a large
body of American citizens, now constituting a part of the political community called the
People of the United States, for whom, and by whom through representatives, our
government is administered.
Source: 163 U.S. 537 (1896).
INTRODUCTION TO THE COURT OPINION ON THE PLESSY V. FERGUSON
CASE
There has been an ongoing debate among historians over the origins of racial segregation
in this country in the decades after emancipation. One group of scholars has argued that
segregation was not a predestined pattern of racial relations in the post-war South. White
masters and black slaves had lived and worked in close proximity before the Civil War,
and a variety of patterns of racial relations existed in the 1870s and 1880s. Although
southern states did not erect the legal structures that supported an extensive system of
social, economic and political segregation until the 1890s, white hostility had permeated
southern race relations for over two centuries. What is certain is that the traditions of
racism, white hostility toward blacks and the inability of the black minority to protect
itself after northern troops went home disadvantaged the former slaves from the start.
Every southern state had enacted black codes immediately after the war to keep the
former slaves under tight control. After these had been voided by the Union, white
southerners began exploring other means to maintain their supremacy over blacks.
Southern legislatures enacted criminal statutes that invariably prescribed harsher
penalties for blacks than for whites convicted of the same crime, and erected a system of
peonage that survived into the early twentieth century.
In an 1878 case, the Supreme Court ruled that the states could not prohibit segregation on
common carriers, such as railroads, streetcars or steamboats. Twelve years later, it
approved a Mississippi statute requiring segregation on intrastate carriers. In doing so it
acquiesced in the South's solution to race relations.
In the best known of the early segregation cases, Plessy v. Ferguson (1896), Justice
Billings Brown asserted that distinctions based on race ran afoul of neither the Thirteenth
or Fourteenth Amendments, two of the Civil War amendments passed to abolish slavery
and secure the legal rights of the former slaves.
Although nowhere in the opinion can the phrase "separate but equal" be found, the
Court's rulings approved legally enforced segregation as long as the law did not make
facilities for blacks inferior to those of whites.
In his famous and eloquent dissent, Justice Harlan protested that states could not impose
criminal penalties on a citizen simply because he or she wished to use the public
highways and common carriers. Such laws defeated the whole purpose of the Civil War
amendments. His pleas that the "Constitution is color-blind" fell on deaf ears.
For further reading: C. Vann Woodward, The Strange Career of Jim Crow (2d ed., 1966);
William Gillette, Retreat from Reconstruction (1979); and Charles A. Lofgren, The
Plessy Case (1987).
-----------------------------------------------------------------PLESSY V. FERGUSON (1896)
Justice Brown delivered the opinion of the Court.
This case turns upon the constitutionality of an act of the General Assembly of the State
of Louisiana, passed in 1890, providing for separate railway carriages for the white and
colored races...
The constitutionality of this act is attacked upon the ground that it conflicts both with the
Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth
Amendment, which prohibits certain restrictive legislation on the part of the States.
1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and
involuntary servitude, except as a punishment for crime, is too clear for argument...
The proper construction of the 14th amendment was first called to the attention of this
court in the Slaughter-house cases,...which involved, however, not a question of race, but
one of exclusive privileges. The case did not call for any expression of opinion as to the
exact rights it was intended to secure to the colored race, but it was said generally that its
main purpose was to establish the citizenship of the negro; to give definitions of
citizenship of the United States and of the States, and to protect from the hostile
legislation of the States the privileges and immunities of citizens of the United States, as
distinguished from those of citizens of the States.
The object of the amendment was undoubtedly to enforce the absolute equality of the two
races before the law, but in the nature of things it could not have been intended to abolish
distinctions based upon color, or to enforce social, as distinguished from political equality,
or a commingling of the two races upon terms unsatisfactory to either. Laws permitting,
and even requiring, their separation in places where they are liable to be brought into
contact do not necessarily imply the inferiority of either race to the other, and have been
generally, if not universally, recognized as within the competency of the state legislatures
in the exercise of their police power. The most common instance of this is connected with
the establishment of separate schools for white and colored children, which has been held
to be a valid exercise of the legislative power even by courts of States where the political
rights of the colored race have been longest and most earnestly enforced...
So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces
itself to the question whether the statute of Louisiana is a reasonable regulation, and with
respect to this there must necessarily be a large discretion on the part of the legislature. In
determining the question of reasonableness it is at liberty to act with reference to the
established usages, customs and traditions of the people, and with a view to the
promotion of their comfort, and the preservation of the public peace and good order.
Gauged by this standard, we cannot say that a law which authorizes or even requires the
separation of the two races in public conveyances is unreasonable, or more obnoxious to
the Fourteenth Amendment than the acts of Congress requiring separate schools for
colored children in the District of Columbia, the constitutionality of which does not seem
to have been questioned, or the corresponding acts of state legislatures.
We consider the underlying fallacy of the plaintiff's argument to consist in the
assumption that the enforced separation of the two races stamps the colored race with a
badge of inferiority. If this be so, it is not by reason of any-thing found in the act, but
solely because the colored race chooses to put that construction upon it. The argument
necessarily assumes that if, as has been more than once the case, and is not unlikely to be
so again, the colored race should become the dominant power in the state legislature, and
should enact a law in precisely similar terms, it would thereby relegate the white race to
an inferior position. We imagine that the white race, at least, would not acquiesce in this
assumption. The argument also assumes that social prejudices may be overcome by
legislation, and that equal rights cannot be secured to the negro except by an enforced
commingling of the two races. We cannot accept this proposition. If the two races are to
meet upon terms of social equality, it must be the result of natural affinities, a mutual
appreciation of each other's merits and a voluntary consent of individuals...Legislation is
powerless to eradicate racial instincts or to abolish distinctions based upon physical
differences, and the attempt to do so can only result in accentuating the difficulties of the
present situation. If the civil and political rights of both races be equal one cannot be
inferior to the other civilly or politically. If one race be inferior to the other socially, the
Constitution of the United States cannot put them upon the same plane...
Justice Harlan, dissenting.
While there may be in Louisiana persons of different races who are not citizens of the
United States, the words in the act, "white and colored races," necessarily include all
citizens of the United States of both races residing in that State. So that we have before us
a state enactment that compels, under penalties, the separation of the two races in railroad
passenger coaches, and makes it a crime for a citizen of either race to enter a coach that
has been assigned to citi-zens of the other race...
In respect of civil rights, common to all citizens, the Constitution of the United States
does not, I think, permit any public authority to know the race of those entitled to be
protected in the enjoyment of such rights. Every true man has pride of race, and under
appropriate circumstances when the rights of others, his equals before the law, are not to
be affected, it is his privilege to express such pride and to take such action based upon it
as to him seems proper. But I deny that any legislative body or judicial tribunal may have
regard to the race of citizens when the civil rights of those citizens are not involved.
Indeed, such legislation, as that here in question, is inconsistent not only with that
equality of rights which pertains to citizenship, National and State, but with the personal
liberty enjoyed by every one within the United States...
The white race deems itself to be the dominant race in this country. And so it is, in
prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will
continue to be for all time, if it remains true to its great heritage and holds fast to the
principles of constitutional liberty. But in view of the Constitution, in the eye of the law,
there is in this country no superior, dominant, ruling class of citizens. There is no caste
here. Our Constitution is color-blind, and neither knows nor tolerates classes among
citizens. In respect of civil rights, all citizens are equal before the law. The humblest is
the peer of the most powerful. The law regards man as man, and takes no account of his
surroundings or of his color when his civil rights as guaranteed by the supreme law of the
land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor
of the fundamental law of the land, has reached the conclusion that it is compe-tent for a
State to regulate the enjoyment by citizens of their civil rights solely upon the basis of
race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as
pernicious as the decision made by this tribunal in the Dred Scott case...The present
decision, it may well be apprehended, will not only stimulate aggressions, more or less
brutal and irritating, upon the admitted rights of colored citizens, but will encourage the
belief that it is possible, by means of state enactments, to defeat the beneficent purposes
which the people of the United States had in view when they adopted the recent
amendments of the Constitution, by one of which the blacks of this country were made
citizens of the United States and of the States in which they respectively reside, and
whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty
millions of whites are in no danger from the presence here of eight millions of blacks.
The destinies of the two races, in this country, are indissolubly linked together, and the
interests of both require that the common government of all shall not permit the seeds of
race hate to be planted under the sanction of law. What can more certainly arouse race
hate, what more certainly create and perpetuate a feeling of distrust between these races,
than state enactments, which, in fact, proceed on the ground that colored citizens are so
inferior and degraded that they cannot be allowed to sit in public coaches occupied by
white citizens? That, as all will admit, is the real meaning of such legislation as was
enacted in Louisiana...
If evils will result from the commingling of the two races upon public highways
established for the benefit of all, they will be infinitely less than those that will surely
come from state legislation regulating the enjoyment of civil rights upon the basis of race.
We boast of the freedom enjoyed by our people above all other peoples. But it is difficult
to reconcile that boast with a state of the law which, practically, puts the brand of
servitude and degradation upon a large class of our fellow-citizens, our equals before the
law...
I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of
citizens, white and black, in that State, and hostile to both the spirit and letter of the
Constitution of the United States. If laws of like character should be enacted in the
several States of the Union, the effect would be in the highest degree mischievous.
Slavery, as an institution tolerated by law would, it is true, have disappeared from our
country, but there would remain a power in the States, by sinister legislation, to interfere
with the full enjoyment of the blessings of freedom; to regulate civil rights, common to
all citizens upon the basis of race; and to place in a condition of legal inferiority a large
body of American citizens, now constituting a part of the political community called the
People of the United States, for whom, and by whom through representatives, our
government is administered.
Source: 163 U.S. 537 (1896).
HARLAN FISKE STONE
In 1937 the United States faced a constitutional crisis. A conservative majority on the
Supreme Court had used its power of judicial review to strike down economic reform
laws aimed at ameliorating the harshness of the Great Depression. President Franklin D.
Roosevelt proposed a plan to add new justices to the Court, but Congress refused to go
along with the so-called "court-packing" plan. Nonetheless, although Roosevelt lost the
battle, he won the war. Within a year, retirements from the Court allowed him to name
younger and more liberal justices.
In 1938, the old battle lines between economic reformers and conservative judges were
rapidly disappearing. The Court declared that in regard to economic legislation, if
Congress had the power to act in a particular area -- such as control of interstate
commerce -- judges would not question the wisdom of the measure. But aside from this, a
new agenda was rapidly crowding onto the Court's docket. If questions of economic
rights had been the chief concern of the judiciary in the first part of the twentieth century,
questions of individual rights and liberties would occupy the courts for the rest of the
century.
The pivotal point in this transformation can be precisely identified, in what is considered
the most important footnote in American judicial history. In an otherwise unremarkable
case regarding federal regulation of milk content (United States v. Carolene Products
Co.), Justice Harlan Fiske Stone announced that Congress had the power to regulate
interstate commerce, and if it chose to set minimal standards for milk quality, that was
the business of the legislative and not the judicial branch.
Immediately following this statement, however, Stone inserted his famous Footnote 4,
which asserted that in noneconomic regulation cases, the Court might adopt a higher level
of scrutiny. Footnote 4 has been the basis for the Supreme Court's subsequent judgments
in cases protecting the integrity of the political process or involving so-called "suspect"
classifications, such as race, creed, alienage, religion and gender. The Court has assumed
an obligation to examine these statutes carefully, to ensure that individual liberties have
not been abridged.
While there had been some cases involving individual liberties prior to this decision, the
footnote is the demarcation point in the Court's shift to an emphasis on protecting civil
rights and liberties, as well as the integrity of the democratic political process.
For further reading: Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (1956);
Learned Hand, "Chief Justice Stone's Conception of the Judicial Function," 46 Columbia
Law Review 696 (1946).
CAROLENE PRODUCTS FOOTNOTE (1938)
Footnote 4.
There may be narrower scope for operation of the presumption of constitutionality when
legislation appears on its face to be within a specific prohibition of the Constitution, such
as those of the first ten Amendments, which are deemed equally specific when held to be
embraced within the 14th. [Case citations deleted]
It is unnecessary to consider now whether legislation which restricts those political
processes which can ordinarily be expected to bring about repeal of undesirable
legislation, is to be subjected to more exacting judicial scrutiny under the general
prohibitions of the 14th Amendments than are most other types of legislation...
Nor need we enquire whether similar considerations enter into the review of statues
directed at particular religious...or nationaL...or racial minorities; [or] whether prejudice
against discrete and insular minorities may be a special condition, which tends seriously
to curtail the operation of those political processes ordinarily to be relied upon to protect
minorities, and which may call for a correspondingly more searching judicial inquiry...
Source: 304 U.S. 144 (1938).
HARRY S. TRUMAN
During World War II, African Americans complained that discrimination at home could
not be squared with the fight against intolerance overseas. President Roosevelt responded
to this complaint by issuing an executive order in June 1941 directing that blacks be
accepted into job-training programs in defense plants, forbidding discrimination by
defense contractors and establishing a Fair Employment Practices Commission (FEPC).
But with southerners firmly in control of major congressional committees, the president
could go no further; moreover, with a war on, civil rights was a low priority.
Harry Truman, Roosevelt's successor, found himself beset by a multitude of problems
after the war, and put up no protest when Congress killed the wartime agency. Later on,
however, he asked Congress to create a permanent FEPC, and in December 1946, he
appointed a distinguished panel to serve as the President's Commission on Civil Rights,
which would recommend "more adequate means and procedures for the protection of the
civil rights of the people of the United States."
The Commission issued its report, "To Secure These Rights," in October 1947, and it
defined the nation's civil rights agenda for the next generation. The Commission noted
the many restrictions on blacks, and urged that each person, regardless of race, color or
national origin, should have access to equal opportunity in securing education, decent
housing and jobs. Among its proposals, the Commission suggested anti-lynching and
anti-poll tax laws, a permanent FEPC, and strengthening the civil rights division of the
Department of Justice.
In a courageous act, Harry Truman sent a special message to Congress on February 2,
1948, calling for prompt implementation of the Commission's recommendations.
Southerners immediately threatened a filibuster, so Truman, unable to secure action from
the Congress, moved ahead using his executive authority. Among other things, he
bolstered the civil rights division, appointed the first black judge to the federal bench,
named several other blacks to high-ranking administration positions, and most important,
on July 26, 1948, he issued the following executive order abolishing segregation in the
armed forces and ordering full integration of all the services.
For further reading: Richard Dalfiume, Desegregation in the U.S. Armed Forces (1953);
Donald R. McCoy and Richard T. Ruetten, Quest and Response: Minority Rights in the
Truman Administration (1973); and William C. Berman, The Politics of Civil Rights in
the Truman Administration (1970).
EXECUTIVE ORDER 9981 (1948)
Establishing the President's Committee on Equality of Treatment and Opportunity in the
Armed Services
Whereas it is essential that there be maintained in the armed services of the United States
the highest standards of democracy, with equality of treatment and opportunity for all
those who serve in our country's defense:
Now therefore, by virtue of the authority vested in me as President of the United States,
by the Constitution and the statutes of the United States, and as Commander in Chief of
the armed services, it is hereby ordered as follows:
1. It is hereby declared to be the policy of the President that there shall be equality of
treatment and opportunity for all persons in the armed services without regard to race,
color, religion or national origin. This policy shall be put into effect as rapidly as possible,
having due regard to the time required to effectuate any necessary changes without
impairing efficiency or morale.
2. There shall be created in the National Military Establishment an advisory committee to
be known as the President's Committee on Equality of Treatment and Opportunity in the
Armed Services, which shall be composed of seven members to be designated by the
President.
3. The Committee is authorized on behalf of the President to examine into the rules,
procedures and practices of the armed services in order to determine in what respect such
rules, procedures and practices may be altered or improved with a view to carrying out
the policy of this order. The Committee shall confer and advise with the Secretary of the
Air Force, and shall make such recommendations to the President and to said Secretaries
as in the judgement of the Committee will effectuate the policy hereof.
4. All executive departments and agencies of the Federal Government are authorized and
directed to cooperate with the Committee in its work, and to furnish the Committee such
information or the services of such persons as the Committee may require in the
performance of its duties.
5. When requested by the Committee to do so, persons in the armed services or in any of
the executive departments and agencies of the Federal Government shall testify before
the Committee and shall make available for the use of the Committee such documents
and other information as the Committee may require.
6. The Committee shall continue to exist until such time as the President shall terminate
its existence by Executive Order.
Harry S. Truman
Source: Fed. Register 13 (1948): 4313.
INTRODUCTION TO THE COURT OPINION ON
THE BROWN V. BOARD OF EDUCATION CASE
The National Association for the Advancement of Colored People (NAACP), the leading
civil rights organization in the country, had never accepted the legitimacy of the "separate
but equal" rule, and in the 1940s and 1950s had brought a series of cases designed to
show that separate facilities did not meet the equality criterion. In McLaurin v. Oklahoma
State Regents (1950), a unanimous Supreme Court had struck down University of
Oklahoma rules that had permitted a black man to attend classes, but fenced him off from
other students. That same day, the Court ruled in Sweatt v. Painter that a makeshift law
school the state of Texas had created to avoid admitting blacks into the prestigious
University of Texas Law School did not come anywhere close to being equal. Whatever
else the justices knew about segregated facilities, they did know what made a good law
school, and for the first time the Court ordered a black student admitted into a previously
all-white school.
The opinion gave the NAACP and its chief legal counsel, Thurgood Marshall, the hope
that the justices were finally ready to tackle the basic question of whether segregated
facilities could ever in fact be equal. In 1952 the NAACP brought five cases before the
Court specifically challenging the doctrine of Plessy v. Ferguson. The issue that had hung
fire ever since the Civil War now had to be faced directly: what place would African
Americans enjoy in the American polity?
A number of reports indicate that the justices, while agreed that segregation was wrong,
were divided over whether the Court had the power to overrule Plessy. They therefore set
the cases down for reargument in 1953, specifically asking both sides to address
particular issues. Then Chief Justice Vinson, who reportedly opposed reversing Plessy,
unexpectedly died a few weeks before the reargument, and the new chief justice, Earl
Warren, skillfully steered the Court to its unanimous and historic ruling on May 17, 1954.
There is no question that the ruling in Brown v. Board of Education, which struck down
racially enforced school segregation, is one of the most important in American history.
No nation committed to democracy could hope to achieve those ideals while keeping
people of color in a legally imposed position of inferiority. But the decision also raised a
number of questions about the authority of the Court and whether this opinion represents
a judicial activism that, despite its inherently moral and democratic ruling, is nonetheless
an abuse of judicial authority. Other critics have pointed to what they claim is a lack of
judicial neutrality or an overreliance on allegedly flawed social science findings.
But J. Harvie Wilkinson, who is now a federal circuit court judge, dismisses much of this
criticism when he reminds us that Brown "was humane, among the most humane
moments in all our history. It was...a great political achievement, both in its uniting of the
Court and in the steady way it addressed the nation."
With this decision, the nation picked up where it had left the cause of equal protection
more than eighty years earlier, and began its efforts to integrate fully the black minority
into full partnership in the American polity.
For further reading: Richard Kluger, Simple Justice: The History of Brown v. Board of
Education and Black America's Struggle for Equality (1976); Mark Tushnet, The
NAACP's Strategy against Segregated Education, 1925-1950 (1987); and Daniel M.
Berman, It Is So Ordered: The Supreme Court Rules on School Segregation (1966).
BROWN V. BOARD OF EDUCATION (1954)
Chief Justice Warren delivered the opinion of the Court.
These cases come to us from the States of Kansas, South Carolina, Virginia, and
Delaware. In each of the cases, minors of the Negro race seek the aid of the courts in
obtaining admission to the public schools of their community on a nonsegregated basis.
In each instance, they had been denied admission to schools attended by white children
under laws requiring or permitting segregation according to race. This segregation was
alleged to deprive the plaintiffs of the equal protection of the laws under the 14th
Amendment...The plaintiffs contend that segregated public schools are not "equal" and
cannot be made "equal," and that hence they are deprived of the equal protection of the
laws. Argument was heard in the 1952 Term, and reargument was heard this Term on
certain questions propounded by the Court.
Reargument was largely devoted to the circumstances surrounding the adoption of the
14th Amendment in 1868. It covered exhaustively consideration of the Amendment in
Congress, ratification by the states, then existing practices in racial segregation, and the
views of proponents and opponents of the Amendment. This discussion and our
investigation convince us that, although these sources cast some light, it is not enough to
resolve the problem with which we are faced. At best, they are inconclusive. The most
avid proponents of the post-War Amendments undoubtedly intended them to remove all
legal distinctions among "all persons born or naturalized in the United States." Their
opponents, just as certainly, were antagonistic to both the letter and the spirit of the
Amendments and wished them to have the most limited effect. What others in Congress
and the state legislature had in mind cannot be determined with any degree of certainty.
An additional reason for the inconclusive nature of the Amendment's history, with respect
to segregated schools, is the status of public education at that time. In the South, the
movement toward free common schools, supported by general taxation, had not yet taken
hold. Education of white children was largely in the hands of private groups. Education
of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact,
any education of the Negroes was forbidden by law in some states. Today, in contrast,
many Negroes have achieved outstanding success in the arts and sciences as well as in
the business and professional world. It is true that public school education has advanced
further in the North, but the effect of the Amendment on Northern States was generally
ignored in the congressional debates. Even in the North, the conditions of public
education did not approximate those existing today. The curriculum was usually
rudimentary; ungraded schools were common in rural areas; the school term was but
three months a year in many states; and compulsory school attendance was virtually
unknown. As a consequence, it is not surprising that there should be so little in the history
of the 14th Amendment relating to its intended effect on public education.
In the first cases in this Court construing the 14th Amendment, decided shortly after its
adoption, the Court interpreted it as proscribing all state-imposed discriminations against
the Negro race. The doctrine of "separate but equal" did not make its appearance in this
Court until 1896,...involving not education but transportation. In this Court, there have
been six cases involving the "separate but equal" doctrine in the field of public education.
In Cumming v. County Board of Education...and Gong Lum v. Rice,...the validity of the
doctrine itself was not challenged. In more recent cases, all on the graduate school level,
inequality was found in that specific benefits enjoyed by white students were denied to
Negro students of the same educational qualifications... In none of these cases was it
necessary to reexamine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v.
Painter the Court expressly reserved decision on the question whether Plessy v. Ferguson
should be held inapplicable to public education.
In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter,
there are findings below that the Negro and white schools involved have been equalized
or are being equalized, with respect to buildings, curricula, qualifications and salaries of
teachers, and other "tangible" factors. Our decision, therefore, cannot turn on merely a
comparison of these tangible factors in the Negro and white schools involved in each of
the cases. We must look instead to the effect of segregation itself on public education.
In approaching this problem, we cannot turn the clock back to 1868 when the
Amendment was adopted, or even to 1896 when Plessy was written. We must consider
public education in the light of its full development and its present place in American life
throughout the Nation. Only in this way can it be determined if segregation in public
schools deprives these plaintiffs of the equal protection of the laws.
Today, education is perhaps the most important function of state and local governments.
Compulsory school attendance laws and the great expenditures for education both
demonstrate our recognition of the importance of education to our democratic society. It
is required in the performance of our most basic public responsibilities, even service in
the armed forces. It is the very foundation of good citizenship. Today it is a principle
instrument in awakening the child to cultural values, in preparing him for later
professional training, and in helping him to adjust normally to his environment. In these
days, it is doubtful that any child may reasonably be expected to succeed in life if he is
denied the opportunity of an education. Such an opportunity, where the state has
undertaken to provide it, is a right which must be made available to all on equal terms.
We come then to the question presented: Does segregation of children in public schools
solely on the basis of race, even though the physical facilities and other "tangible" factors
may be equal, deprive the children of the minority group of equal educational
opportunities? We believe that it does. In Sweatt in finding that a segregated law school
for Negroes could not provide them equal educational opportunities, this Court relied in
large part on "those qualities which are incapable of objective measurement but which
make for greatness in a law school." In McLaurin, the Court, in requiring that a Negro
admitted to a white graduate school be treated like all other students, again resorted to
intangible considerations: "[his] ability to study, to engage in discussions and exchange
views with other students, and, in general, to learn his profession." Such considerations
apply with added force to children in grade and high schools. To separate them from
others of similar age and qualifications solely because of their race generates a feeling of
inferiority as to their status in the community that may affect their heart and minds in a
way unlikely ever to be undone. The effect of this separation on their educational
opportunities was well stated by a finding in the Kansas case by a court which
nevertheless felt compelled to rule against the Negro plaintiffs: "Segregation of white and
colored children in public schools has a detrimental effect upon the colored children. The
impact is greater when it has the sanction of the law; for the policy of separating the races
is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority
affects the motivation of a child to learn. Segregation with the sanction of law, therefore,
has a tendency to retard the educational and mental development of negro children and to
deprive them of some of the benefits they would receive in a [racially] integrated school
system." Whatever may have been the extent of psychological knowledge at the time of
Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in
Plessy v. Ferguson contrary to this finding is rejected.
We conclude that in the field of public education the doctrine of "separate but equal" has
no place. Separate educational facilities are inherently unequal. Therefore, we hold that
the plaintiffs and others similarly situated for whom the actions have been brought are by
reason of the segregation complained of, deprived of the equal protection of the laws
guaranteed by the 14th Amendment. This disposition makes unnecessary any discussion
whether such segregation also violates the Due Process Clause of the 14th Amendment.
Because these are class actions, because of the wide applicability of this decision, and
because of the great variety of local conditions, the formulation of decrees in these cases
presents problems of considerable complexity. On reargument, the consideration of
appropriate relief was necessarily subordinated to the primary question -- the
constitutionality of segregation in public education. We have now announced that such
segregation is a denial of the equal protection of the laws. In order that we may have the
full assistance of the parties in formulating decrees, the cases will be restored to the
docket, and the parties are requested to present further argument...
It is so ordered.
Source: 347 U.S. 483 (1954).
INTRODUCTION TO THE COURT OPINION ON
THE COOPER V. AARON CASE
In the Brown decision, the Supreme Court did no more than announce that segregation
violated the Equal Protection Clause of the Constitution. Recognizing that implementing
this decree would be difficult, the Court invited the southern states and the federal
government to suggest what course should be followed. In what is known as Brown II,
the Court called upon the southern states to desegregate its schools with "all deliberate
speed."
The Supreme Court has the power neither of the sword nor the purse, and so it relies upon
its moral authority for enforcement of its decrees, or on the aid of the president and
Congress. In the years following the two Brown decisions, however, neither the executive
nor the legislative branches moved to assist the Court; President Dwight Eisenhower
believed that the federal government should not interfere in state matters, while
southerners in Congress prevented any action by that body. The southern states adopted a
variety of measures to delay desegregation or to evade the decree altogether.
But finally President Eisenhower was forced to act. In the fall of 1957, the school board
of Little Rock, Arkansas, agreed to a court order to admit black students to Central High
School. The governor of the state, Orville Faubus, called out the National Guard to
prevent the students from entering, and when the court again ordered the students
admitted, Faubus withdrew the troops. But when the students tried to enroll, a mob
attacked the school and drove them off. Eisenhower could no longer sit by passively and
watch federal authority flouted. He ordered a thousand paratroopers into Little Rock, put
ten thousand Arkansas national guardsmen under federal control and used the troops to
protect the black students and to maintain order in the school.
Eisenhower withdrew the troops at the end of the school year, and then the Supreme
Court, for the first time since Brown II, spoke out on desegregation in Cooper v. Aaron, a
case arising out of the Arkansas turmoil. The state had argued that it was not bound by
the Court's decision, since it had not been a party to the original suit; beyond that,
Arkansas claimed that a governor of a state had the same power to interpret the
Constitution as did the Supreme Court.
The Court not only reaffirmed the ruling in Brown that segregation was unconstitutional,
but in an unusual step issued an opinion signed by all nine justices. In the decision, the
Court reasserted its authority as the ultimate interpreter of the Constitution, and it
reminded Arkansas and the nation that ever since 1803 it had been, in Chief Justice John
Marshall's phrase, "the province and duty of the judicial department to say what the law
is."
The case marked the end of the waiting period, during which time the Court had given
southern states time to accept Brown and start desegregating schools; now the Court
indicated its impatience with delay. The law required that segregation end, and in a series
of cases following Cooper, the justices handed down one decision after another ordering
schools to begin implementing desegregation.
For further reading: Tony Freyer, The Little Rock Crisis (1984); Benjamin Muse, Ten
Years of Prelude (1964).
COOPER V. AARON
Opinion of the Court by the Chief Justice and Justices Black, Frankfurter, Douglas,
Burton, Clark, Harlan, Brennan, and Whittaker.
As this case reaches us it raises questions of the highest importance to the maintenance of
our federal system of government. It necessarily involves a claim by the Governor and
Legislature of a State that there is no duty on state officials to obey federal court orders
resting on this Court's considered interpretation of the United States Constitution.
Specifically it involves actions by the Governor and Legislature of Arkansas upon the
premise that they are not bound by our holding in Brown v. Board of Education... That
holding was that the Fourteenth Amendment forbids States to use their governmental
powers to bar children on racial grounds from attending schools where there is state
participation through any arrangement, management, funds, or property. We are urged to
uphold a suspension of the Little Rock School Board's plan to do away with segregated
public schools in Little Rock until state laws have been further challenged and tested in
the courts. We reject these contentions.
The case was argued before us on September 11, 1958. On the following day we
unanimously affirmed the judgement of the Court of Appeals for the Eighth District of
Arkansas...The District Court had granted the application of the petitioners, the Little
Rock School Board and School Superintendent, to suspend for two and one-half years the
operation of the School Board's court-approved desegregation program. In order that the
School Board might know, without doubt, its duty in this regard before the opening of
school, which had been set for the following Monday, September 15, 1958, we
immediately issued the judgement, reserving the expression of our supporting views to a
later date. This opinion of all of the members of the Court embodies those views...
In affirming the judgement of the Court of Appeals which reversed the District Court we
have accepted without reservation the position of the School Board, the Superintendent of
Schools, and their counsel that they dis-played entire good faith in the conduct of these
proceedings and in dealing with the unfortunate and distressing sequence of events which
has been outlined. We likewise have accepted the findings of the District Court as to the
conditions at Central High School during the 1957-1958 school year, and also the findings that the educational progress of all the students, white and colored, of that school has
suffered and will continue to suffer if the conditions which prevailed last year are
permitted to continue.
The significance of these findings, however, is to be considered in the light of the fact,
indisputably revealed by the record before us, that the conditions they depict are directly
traceable to the actions of legislatures and executive officials of the State of Arkansas,
taken in their official capacities, which reflect their own determination to resist this
Court's decision in the Brown case and which have brought about violent resistance to
that decision in Arkansas. In its petition for certiorari filed in this Court, the School
Board itself describes the situation in this language: "The legislative, executive, and
judicial departments of the state government opposed the desegregation of Little Rock
schools by enacting laws, calling out troops, making statements vilifying federal law and
federal courts, and failing to utilize state law enforcement agencies and judicial process to
maintain public peace."
One may well sympathize with the position of the Board in the face of the frustrating
conditions which have confronted it, but, regardless of the Board's good faith, the actions
of the other state agencies responsible for those conditions compel us to reject the Board's
legal position. Had Central High School been under the direct management of the State
itself, it could hardly be suggested that those immediately in charge of the school should
be heard to assert their own good faith as a legal excuse for delay in implementing the
constitutional rights of these respondents, when vindication of those rights was rendered
difficult or impossible by the actions of other state officials. The situation here is no
different posture because the members of the School Board and the Superintendent of
Schools are local officials; from the point of view of the Fourteenth Amendment, they
stand in this litigation as the agents of the State.
The constitutional rights of respondents are not to be sacrificed or yielded to the violence
and disorder which have followed upon the actions of the Governor and Legislature. As
this Court said some 41 years ago in a unanimous opinion in a case involving another
aspect of racial segregation: "It is urged that this proposed segregation will promote the
public peace by preventing race conflicts. Desirable as this is, and important as is the
preservation of the public peace, this aim cannot be accomplished by laws or ordinances
which deny the rights created or protected by the Federal Constitution." Buchanan v.
Warley... Thus law and order are not here to be preserved by depriving the Negro
children of their constitutional rights. The record before us clearly establishes that the
growth of the Board's difficulties to a magnitude beyond its unaided power to control is
the product of state action. Those difficulties, as counsel for the Board forthrightly
conceded on the oral argument in this Court, can also be brought under control by state
action.
The controlling legal principles are plain. The command of the Fourteenth Amendment is
that no "State" shall deny to any person within its jurisdiction the equal protection of the
laws...
What has been said, in the light of the facts developed, is enough to dispose of the case.
However, we should answer the premise of the actions of the Governor and Legislature
that they are not bound by our holding in the Brown case. It is necessary only to recall
some basic constitutional propositions which are settled doctrine.
Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In
1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the
Constitution as "the fundamental and paramount law of the nation," declared in the
notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the
province and duty of the judicial department to say what the law is." This decision
declared the basic principle that the federal judiciary is supreme in the exposition of the
law of the Constitution, and that principle has ever since been respected by this Court and
the Country as a permanent and indispensable feature of our constitutional system. It
follows that the interpretation of the Fourteenth Amendment enunciated by this Court in
the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of
binding effect on the States "any Thing in the Constitution or Laws of any States to the
Contrary notwithstanding." Every state legislator and executive and judicial officer is
solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this
Constitution."...
No state legislator or executive or judicial officer can war against the Constitution
without violating his undertaking to support it. Chief Justice Marshall spoke for a
unanimous Court in saying that: "If the legislatures of the several states may, at will,
annul the judgements of the courts of the United States, and destroy the rights acquired
under those judgements, the constitution itself becomes a solemn mockery..." United
States v. Peters... A Governor who asserts a power to nullify a federal court order is
similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a
unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution
of the United States, would be the supreme law of the land; that the restriction of the
Federal Constitution upon the exercise of state power would be but impotent phrases..."
Sterling v. Constantin...
It is, of course, quite true that the responsibility for public education is primarily the
concern of the States, but it is equally true that such responsibilities, like all other state
activity, must be exercised consistently with federal constitutional requirements as they
apply to state action. The Constitution created a government dedicated to equal justice
under law. The Fourteenth Amendment embodied and emphasized that ideal. State
support of segregated schools through any arrangement, management, funds, or property
cannot be squared with the Amendment's command that no State shall deny to any person
within its jurisdiction the equal protection of the laws. The right of a student not to be
segregated on racial grounds in schools so maintained is indeed so fundamental and
pervasive that it is embraced in the concept of due process of law... The basic decision in
Brown was unanimously reached by this Court only after the case had been briefed and
twice argued and the issues had been given the most serious consideration. Since the first
Brown opinion three new Justices have come to the Court. They are at one with the
Justices still on the Court who participated in that basic decision as to its correctness, and
that decision and the obedience of the States to them, according to the command of the
Constitution, are indispensable for the protection of the freedoms guaranteed by our
fundamental charter for all of us. Our constitutional ideal of equal justice under law is
thus made a living truth.
Source: 358 U.S. 1 (1958).
MARTIN LUTHER KING, JR
As far as black Americans were concerned, the nation's response to Brown was
agonizingly slow, and neither state legislatures nor the Congress seemed willing to help
their cause along. Finally, President John F. Kennedy recognized that only a strong civil
rights bill would put teeth into the drive to secure equal protection of the laws for African
Americans. On June 11, 1963, he proposed such a bill to Congress, asking for legislation
that would provide "the kind of equality of treatment which we would want for
ourselves." Southern representatives in Congress managed to block the bill in committee,
and civil rights leaders sought some way to build political momentum behind the measure.
A. Philip Randolph, a labor leader and longtime civil rights activist, called for a massive
march on Washington to dramatize the issue. He welcomed the participation of white
groups as well as black in order to demonstrate the multiracial backing for civil rights.
The various elements of the civil rights movement, many of which had been wary of one
another, agreed to participate. The National Association for the Advancement of Colored
People, the Congress of Racial Equality, the Southern Christian Leadership Conference,
the Student Non-violent Coordinating Committee and the Urban League all managed to
bury their differences and work together. The leaders even agreed to tone down the
rhetoric of some of the more militant activists for the sake of unity, and they worked
closely with the Kennedy administration, which hoped the march would, in fact, lead to
passage of the civil rights bill.
On August 28, 1963, under a nearly cloudless sky, more than 250,000 people, a fifth of
them white, gathered near the Lincoln Memorial in Washington to rally for "jobs and
freedom." The roster of speakers included speakers from nearly every segment of society
-- labor leaders like Walter Reuther, clergy, film stars such as Sidney Poitier and Marlon
Brando and folksingers such as Joan Baez. Each of the speakers was allotted fifteen
minutes, but the day belonged to the young and charismatic leader of the Southern
Christian Leadership Conference.
Dr. Martin Luther King Jr. had originally prepared a short and somewhat formal
recitation of the sufferings of African Americans attempting to realize their freedom in a
society chained by discrimination. He was about to sit down when gospel singer Mahalia
Jackson called out, "Tell them about your dream, Martin! Tell them about the dream!"
Encouraged by shouts from the audience, King drew upon some of his past talks, and the
result became the landmark statement of civil rights in America -- a dream of all people,
of all races and colors and backgrounds, sharing in an America marked by freedom and
democracy.
For further reading: Herbert Garfinkel, When Negroes March: The March on
Washington...(1969); Taylor Branch, Parting the Waters: America in the King Years,
1954-1963 (1988); Stephen B. Oates, Let the Trumpet Sound: The Life of Martin Luther
King Jr. (1982).
"I HAVE A DREAM" (1963)
I am happy to join with you today in what will go down in history as the greatest
demonstration for freedom in the history of our nation.
Five score years ago, a great American, in whose symbolic shadow we stand today,
signed the Emancipation Proclamation. This momentous decree came as a great beacon
light of hope to millions of Negro slaves who had been seared in the flames of withering
injustice. It came as a joyous daybreak to end the long night of their captivity.
But 100 years later, the Negro still is not free. One hundred years later, the life of the
Negro is still sadly crippled by the manacles of segregation and the chains of
discrimination. One hundred years later, the Negro lives on a lonely island of poverty in
the midst of a vast ocean of material prosperity. One hundred years later, the Negro is
still languished in the corners of American society and finds himself an exile in his own
land. And so we've come here today to dramatize a shameful condition.
In a sense we've come to our nation's capital to cash a check. When the architects of our
republic wrote the magnificent words of the Constitution and the Declaration of
Independence, they were signing a promissory note to which every American was to fall
heir. This note was a promise that all men - yes, black men as well as white men - would
be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.
It is obvious today that America has defaulted on this promissory note insofar as her
citizens of color are concerned. Instead of honoring this sacred obligation, America has
given the Negro people a bad check, a check that has come back marked "insufficient
funds."
But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that
there are insufficient funds in the great vaults of opportunity of this nation. And so we've
come to cash this check, a check that will give us upon demand the riches of freedom and
security of justice. We have also come to his hallowed spot to remind America of the
fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the
tranquilizing drug of gradualism. Now is the time to make real the promises of
democracy. Now is the time to rise from the dark and desolate valley of segregation to
the sunlit path of racial justice. Now is the time to lift our nation from the quicksands of
racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality
for all of God's children.
It would be fatal for the nation to overlook the urgency of the moment. This sweltering
summer of the Negro's legitimate discontent will not pass until there is an invigorating
autumn of freedom and equality. Nineteen sixty-three is not an end but a beginning.
Those who hoped that the Negro needed to blow off steam and will now be content will
have a rude awakening if the nation returns to business as usual. There will be neither rest
nor tranquility in America until the Negro is granted his citizenship rights. The
whirlwinds of revolt will continue to shake the foundations of our nation until the bright
day of justice emerges.
But there is something that I must say to my people who stand on the warm threshold
which leads into the palace of justice. In the process of gaining our rightful place we must
not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by
drinking from the cup of bitterness and hatred. We must forever conduct our struggle on
the high plane of dignity and discipline. We must not allow our creative protest to
degenerate into physical violence. Again and again we must rise to the majestic heights
of meeting physical force with soul force. The marvelous new militancy which has
engulfed the Negro community must not lead us to a distrust of all white people, for
many of our white brothers, as evidenced by their presence here today, have come to
realize that their destiny is tied up with our destiny. And they have come to realize that
their freedom is inextricably bound to our freedom. We cannot walk alone.
And as we walk, we must make the pledge that we shall always march ahead. We cannot
turn back. There are those who are asking the devotees of civil rights, "When will you be
satisfied?" We can never be satisfied as long as the Negro is the victim of the
unspeakable horrors of police brutality. We can never be satisfied as long as our bodies,
heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and
the hotels of the cities. We cannot be satisfied as long as the Negro's basic mobility is
from a smaller ghetto to a larger one. We can never be satisfied as long as our children
are stripped of their selfhood and robbed of their dignity by signs stating "for whites
only." We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro
in New York believes he has nothing for which to vote. No, no we are not satisfied and
we will not be satisfied until justice rolls down like waters and righteousness like a
mighty stream.
I am not unmindful that some of you have come here out of great trials and tribulations.
Some of you have come fresh from narrow jail cells. Some of you have come from areas
where your quest for freedom left you battered by storms of persecution and staggered by
the winds of police brutality. You have been the veterans of creative suffering. Continue
to work with the faith that unearned suffering is redemptive.
Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to
Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities,
knowing that somehow this situation can and will be changed.
Let us not wallow in the valley of despair. I say to you today my friends - so even though
we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply
rooted in the American dream.
I have a dream that one day this nation will rise up and live out the true meaning of its
creed: "We hold these truths to be self-evident, that all men are created equal."
I have a dream that one day on the red hills of Georgia the sons of former slaves and the
sons of former slave owners will be able to sit down together at the table of brotherhood.
I have a dream that one day even the state of Mississippi, a state sweltering with the heat
of injustice, sweltering with the heat of oppression, will be transformed into an oasis of
freedom and justice.
I have a dream that my four little children will one day live in a nation where they will
not be judged by the color of their skin but by the content of their character.
I have a dream today.
I have a dream that one day down in Alabama, with its vicious racists, with its governor
having his lips dripping with the words of interposition and nullification - one day right
there in Alabama little black boys and black girls will be able to join hands with little
white boys and white girls as sisters and brothers.
I have a dream today.
I have a dream that one day every valley shall be exalted, and every hill and mountain
shall be made low, the rough places will be made plain, and the crooked places will be
made straight, and the glory of the Lord shall be revealed and all flesh shall see it
together.
This is our hope. This is the faith that I go back to the South with. With this faith we will
be able to hew out of the mountain of despair a stone of hope. With this faith we will be
able to transform the jangling discords of our nation into a beautiful symphony of
brotherhood. With this faith we will be able to work together, to pray together, to struggle
together, to go to jail together, to stand up for freedom together, knowing that we will be
free one day.
This will be the day, this will be the day when all of God's children will be able to sing
with new meaning "My country 'tis of thee, sweet land of liberty, of thee I sing. Land
where my father's died, land of the Pilgrim's pride, from every mountainside, let freedom
ring!"
And if America is to be a great nation, this must become true. And so let freedom ring
from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty
mountains of New York. Let freedom ring from the heightening Alleghenies of
Pennsylvania.
Let freedom ring from the snow-capped Rockies of Colorado. Let freedom ring from the
curvaceous slopes of California.
But not only that; let freedom ring from Stone Mountain of Georgia.
Let freedom ring from Lookout Mountain of Tennessee.
Let freedom ring from every hill and molehill of Mississippi - from every mountainside.
Let freedom ring. And when this happens, and when we allow freedom ring - when we let
it ring from every village and every hamlet, from every state and every city, we will be
able to speed up that day when all of God's children - black men and white men, Jews and
Gentiles, Protestants and Catholics - will be able to join hands and sing in the words of
the old Negro spiritual: "Free at last! Free at last! Thank God Almighty, we are free at
last!"
Distribution statement: Accepted as part of the Douglass Archives of American Public
Address (http://douglass.speech.nwu.edu) on May 26, 1999. Prepared by D. Oetting
(http://nonce.com/oetting).
Permission is hereby granted to download, reprint, and/or otherwise redistribute this file,
provided this distribution statement is included and appropriate point of origin credit is
given to the preparer and Douglass.
BACKGROUNDER ON THE CIVIL RIGHTS ACT
The assassination of John Kennedy in November 1963 left most civil rights leaders griefstricken. Kennedy had been the first president since Harry Truman to champion equal
rights for black Americans, and they knew little about his successor, Lyndon Baines
Johnson. Although Johnson had helped engineer the Civil Rights Act of 1957, that had
been a mild measure, and no one knew if the Texan would continue Kennedy's call for
civil rights or move to placate his fellow southerners.
But on November 27, 1963, addressing the Congress and the nation for the first time as
president, Johnson called for passage of the civil rights bill as a monument to the fallen
Kennedy. "Let us continue," he declared, promising that "the ideas and the ideals which
[Kennedy] so nobly represented must and will be translated into effective action."
Moreover, where Kennedy had been sound on principle, Lyndon Johnson was the master
of parliamentary procedure, and he used his considerable talents as well as the prestige of
the presidency in support of the bill.
On February 10, 1964, the House of Representatives passed the measure by a lopsided
290-130 vote, but everyone knew that the real battle would be in the Senate, whose rules
had allowed southerners in the past to mount filibusters that had effectively killed nearly
all civil rights legislation. But Johnson pulled every string he knew, and had the civil
rights leaders mount a massive lobbying campaign, including inundating the Capitol with
religious leaders of all faiths and colors. The strategy paid off, and in June the Senate
voted to close debate; a few weeks later, it passed the most important piece of civil rights
legislation in the nation's history, and on July 2, 1964, President Johnson signed it into
law.
Some members of Congress, however, worried whether the law would pass constitutional
muster, since in 1883 the Supreme Court had voided the last civil rights measure,
declaring such action beyond the scope of congressional power. They need not have
worried this time. The Supreme Court accepted two cases on an accelerated basis and in
both of them unanimously upheld the power of Congress under the Fourteenth
Amendment to protect the civil rights of black Americans.
Title II, of which sections are reprinted here, is the heart of the law, and deals with public
accommodations, so that African Americans could no longer be excluded from
restaurants, hotels and other public facilities.
For further reading: Charles and Barbara Whalen, The Longest Debate: A Legislative
History of the 1964 Civil Rights Act (1985); Carl M. Brauer, John F. Kennedy and the
Second Reconstruction (1977); and Doris Keans, Lyndon Johnson and the American
Dream (1976).
CIVIL RIGHTS ACT
Title II
Sec. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and accommodations of any place of public
accommodation, as defined in this section, without discrimination or segregation on the
ground of race, color, religion, or national origin.
(b) Each of the following establishments which serves the public is a place of public
accommodation within the meaning of this title if its operations affect commerce, or if
discrimination or segregation by it is supported by State action:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient
guests, other than an establishment located within a building which contains not more
than five rooms for rent or hire and which is actually occupied by the proprietor of such
establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility
principally engaged in selling food for consumption on the premises, including, but not
limited to, any such facility located on the premises of any retail establishment; or any
gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of
exhibition or entertainment; and
(4) any establishment (A)(i) which is physically located within the premises of any
establishment otherwise covered by this subsection, or (ii) within the premises of which
is physically located any such covered establishment, and (b) which holds itself out as
serving patrons of such covered establishment.
(c) The operations of an establishment affect commerce within the meaning of this title if
(1) it is one of the establishments described in paragraph (1) of subsection (b); (2) in the
case of an establishment described in paragraph (2) of subsection (b), it serves or offers to
serve interstate travelers or a substantial portion of the food which it serves, or gasoline
or other products which it sells, has moved in commerce; (3) in the case of an
establishment described in paragraph (3) of subsection (b), it customarily presents films,
performances, athletic teams, exhibitions, or other sources of entertainment which move
in commerce; and (4) in the case of an establishment described in paragraph (4) of
subsection (b), it is physically located within the premises of, or there is physically
located within its premises, an establishment the operations of which affect commerce
within the meaning of this subsection. For purposes of this section, "commerce" means
travel, trade, traffic, commerce, transportation, or communication among the several
States, or between the District of Columbia and any State, or between any foreign country
or any territory or possession and any State or the District of Columbia, or between points
in the same State but through any other State or the District of Columbia or a foreign
country.
(d) Discrimination or segregation by an establishment is supported by State action within
the meaning of this title if such discrimination or segregation (1) is carried on under color
of any law, statute, ordinance, or regulation; or (2) is carried on under color of any
custom or usage required or enforced by officials of the State or political subdivision
thereof; or (3) is required by action of the State or political subdivision thereof...
(e) The provisions of this title shall not apply to a private club or other establishment not
in fact open to the public, except to the extent that the facilities of such establishment are
made available to the customers or patrons of an establishment within the scope of
subsection (b).
Sec 202. All persons shall be entitled to be free, at any establishment or place, from
discrimination or segregation of any kind on the ground of race, color, religion, or
national origin, if such discrimination or segregation is or purports to be required by any
law, statute, ordinance, regulation, rule, or order of a State or any agency or political
subdivision thereof.
Sec. 203. No person shall (a) withhold, deny, or attempt to withhold or deny, or deprive
or attempt to deprive, any person of any right or privilege secured by section 201 or 202,
or (b) intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any
person with purpose of interfering with any right or privilege secured by section 201 or
202, or (c) punish or attempt to punish any person for exercising or attempting to exercise
any right or privilege secured by section 201 or 202.
Source: U.S. Statutes at Large 78 (1964): 241.
LYNDON B. JOHNSON
Just as the Fourteenth Amendment in 1868 had failed to secure full legal rights for the
freed slaves, so the 1964 Civil Rights Act did not ensure the slaves' descendants their
rightful place in society. In the 1860s, Congress had felt compelled to propose the
Fifteenth Amendment to prevent states from restricting the ballot on the basis of race.
Now, a century later, the time had come to make that promise a reality.
Civil rights leaders understood that laws and court decisions prohibiting legally enforced
discrimination would never, by themselves, make African Americans full participants in
the nation's political life. Blacks would have to gain greater access to the voting booth if
they were to achieve greater economic and political equality.
Title I of the 1964 Civil Rights Act did attack state discrimination in voter registration,
but despite its tough language, it changed little in the South. The Justice Department just
did not have the personnel to monitor every county, and intimidated blacks were often
afraid to employ the act's remedies. The continuing resistance of southern leaders kept
black registration low; in Mississippi, for example, less than 6 percent of eligible blacks
were registered to vote.
But time was running out on the South. The summer of 1964, known as Freedom
Summer, not only saw the passage of the great civil rights bill, but it also saw
unparalleled violence that, in the end, convinced the rest of the country that the time had
come to act. In the most infamous case, three civil rights volunteers who had come to
Mississippi to help register black voters -- two whites, Andrew Goodman and Michael
Schwerner, and one black, James Chaney -- were murdered, and their bodies hidden in an
earthen dam. FBI investigations found that local law enforcement officials had been
involved in the crime.
President Johnson had ordered work begun on a tough voting rights bill in the fall of
1964, and he asked Congress for the measure in his State of the Union speech in January
1965. Congress stalled, and in March, Martin Luther King led a march on Selma,
Alabama, to dramatize the need for a voting rights bill. Alabama officials brutally
attacked the marchers, and police violence, shown on national television, sickened the
country; within hours, tens of thousands of volunteers were heading south to join King in
the march.
In the midst of the crisis, the president delivered the following message to Congress.
Many scholars of the period believe it was Johnson's greatest speech, not only moving
and eloquent, but a perfect example of using what Theodore Roosevelt had called the
"bully pulpit," the moral authority of the presidency as a platform for leading the
American democracy. The combination of public revulsion over southern white violence
and Johnson's political skills brought Congress to pass the voting rights bill on August 5,
1965.
The new law, known either as the Civil Rights Act of 1965 or as the Voting Rights Act of
1965, brought an unprecedented federal intrusion into local affairs, especially in the
South. Voting registration and criteria had always been considered a matter of local and
state control. Now if any county failed to register 50 percent of the voting age population,
that would be considered prima facie evidence of racial discrimination, and the Justice
Department would take over control of the registration process. The law worked. Most
southern states realized that they had reached the end of the line in their efforts to retain a
segregated society, and voluntarily opened their registration lists to blacks. The Justice
Department took control in sixty-two counties where resistance remained. In Mississippi,
the state with the worst voting registration record, enrollment of black voters jumped
from 6 to 44 percent in three years. Within a relatively short time, blacks, who comprised
a majority in parts of the South, were electing black mayors and sheriffs and supervisors.
And former race baiters like George Wallace of Alabama would actively campaign for
black votes.
The credit belongs not only to the civil rights workers who put their bodies and their lives
on the line, and to the civil rights leaders like Martin Luther King Jr., who aroused public
consciousness, but in large measure to Lyndon Johnson. In this speech he managed to
articulate not only blacks' desire to become full citizens, but the awareness that in a
democratic society nothing else would suffice.
Few who heard the speech were not moved when Johnson quoted the old hymn that had
become the anthem of the civil rights movement, "We shall overcome!"
For further reading: David Garrow, Protest at Selma (1978); Doug McAdam, Freedom
Summer (1988); and Stephen Lawson, Black Ballots: Voting Rights in the South, 19661969 (1976).
"THE AMERICAN PROMISE"
Mr. Speaker, Mr. President, Members of the Congress:
I speak tonight for the dignity of man and the destiny of democracy.
I urge every member of both parties, Americans of all religions and of all colors, from
every section of this country, to join me in that cause.
At times history and fate meet at a single time in a single place to shape a turning point in
man's unending search for freedom. So it was at Lexington and Concord. So it was a
century ago at Appomattox. So it was last week in Selma, Alabama.
There, long-suffering men and women peacefully protested the denial of their rights as
Americans. Many were brutally assaulted. One good man, a man of God, was killed.
There is no cause for pride in what has happened in Selma. There is no cause for selfsatisfaction in the long denial of equal rights of millions of Amer-icans. But there is cause
for hope and for faith in our democracy in what is happening here tonight.
For the cries of pain and the hymns and protests of oppressed people have summoned
into convocation all the majesty of this great Government -- the Government of the
greatest Nation on earth.
Our mission is at once the oldest and the most basic of this country: to right wrong, to do
justice, to serve man.
In our time we have come to live with moments of great crisis. Our lives have been
marked with debate about great issues; issues of war and peace, issues of prosperity and
depression. But rarely in any time does an issue lay bare the secret heart of America itself.
Rarely are we met with a challenge, not to our growth or abundance, our welfare or our
security, but rather to the values and the purposes and the meaning of our beloved Nation.
The issue of equal rights for American Negroes is such an issue. And should we defeat
every enemy, should we double our wealth and conquer the stars, and still be unequal to
this issue, then we will have failed as a people and as a nation.
For with a country as with a person, "What is a man profited, if he shall gain the whole
world, and lose his own soul?"
There is no Negro problem. There is no Southern problem. There is no Northern problem.
There is only an American problem. And we are met here tonight as Americans -- not as
Democrats or Republicans -- we are met here as Americans to solve that problem.
This was the first nation in the history of the world to be founded with a purpose. The
great phrases of that purpose still sound in every American heart, North and South: "All
men are created equal" -- "government by consent of the governed" -- "give me liberty or
give me death." Well, those are not just clever words, or those are not just empty theories.
In their name Americans have fought and died for two centuries, and tonight around the
world they stand there as guardians of our liberty, risking their lives.
Those words are a promise to every citizen that he shall share in the dignity of man. This
dignity cannot be found in a man's possessions; it cannot be found in his power, or in his
position. It really rests on his right to be treated as a man equal in opportunity to all
others. It says that he shall share in freedom, he shall choose his leaders, educate his
children, and provide for his family according to his ability and his merits as a human
being.
To apply any other test -- to deny a man his hopes because of his color or race, his
religion or the place of his birth -- is not only to do injustice, it is to deny America and to
dishonor the dead who gave their lives for American freedom.
The Right to Vote
Our fathers believed that if this noble view of the rights of man was to flourish, it must be
rooted in democracy. The most basic right of all was the right to choose your own leaders.
The history of this country, in large measure, is the history of the expansion of that right
to all of our people.
Many of the issues of civil rights are very complex and most difficult. But about this
there can and should be no argument. Every American citizen must have an equal right to
vote. There is no reason which can excuse the denial of that right. There is no duty which
weighs more heavily on us than the duty we have to ensure that right.
Yet the harsh fact is that in many places in this country men and women are kept from
voting simply because they are Negroes.
Every device of which human ingenuity is capable has been used to deny this right. The
Negro citizen may go to register only to be told that the day is wrong, or the hour is late,
or the official in charge is absent. And if he persists, and if he manages to present himself
to the registrar, he may be disqualified because he did not spell out his middle name or
because he abbreviated a word on the application.
And if he manages to fill out an application he is given a test. The registrar is the sole
judge of whether he passes this test. He may be asked to recite the entire Constitution, or
explain the most complex provisions of State law. And even a college degree cannot be
used to prove that he can read and write.
For the fact is that the only way to pass these barriers is to show a white skin.
Experience has clearly shown that the existing process of law cannot overcome
systematic and ingenious discrimination. No law that we now have on the books -- and I
have helped to put three of them there -- can ensure the right to vote when local officials
are determined to deny it.
In such a case our duty must be clear to all of us. The Constitution says that no person
shall be kept from voting because of his race or his color. We have all sworn an oath
before God to support and to defend that Constitution. We must now act in obedience to
that oath.
Guaranteeing the Right to Vote
Wednesday I will send to Congress a law designed to eliminate illegal barriers to the
right to vote.
The broad principles of that bill will be in the hands of the Democratic and Republican
leaders tomorrow. After they have reviewed it, it will come here formally as a bill. I am
grateful for this opportunity to come here tonight at the invitation of the leadership to
reason with my friends, to give them my views, and to visit with my former colleagues.
I have had prepared a more comprehensive analysis of the legislation which I had
intended to transmit to the clerk tomorrow but which I will sub-mit to the clerks tonight.
But I want to really discuss with you now briefly the main proposals of this legislation.
This bill will strike down restrictions to voting in all elections -- Federal, State, and local
-- which have been used to deny Negroes the right to vote.
This bill will establish a simple, uniform standard which cannot be used, however
ingenious the effort, to flout our Constitution.
It will provide for citizens to be registered by officials of the United States Government if
the State officials refuse to register them.
It will eliminate tedious, unnecessary lawsuits which delay the right to vote. Finally, this
legislation will ensure that properly registered individuals are not prohibited from voting.
I will welcome the suggestions from all of the Members of Congress -- I have no doubt
that I will get some -- on ways and means to strengthen this law and to make it effective.
But experience has plainly shown that this is the only path to carry out the command of
the Constitution.
To those who seek to avoid action by their National Government in their own
communities; who want to and who seek to maintain purely local control over elections,
the answer is simple:
Open your polling places to all your people.
Allow men and women to register and vote whatever the color of their skin.
Extend the rights of citizenship to every citizen of this land.
The Need For Action
There is no constitutional issue here. The command of the Constitution is plain.
There is no moral issue. It is wrong -- deadly wrong -- to deny any of your fellow
Americans the right to vote in this country.
There is no issue of States rights or national rights. There is only the struggle for human
rights.
I have not the slightest doubt what will be your answer.
The last time a President sent a civil rights bill to the Congress it contained a provision to
protect voting rights in Federal elections. That civil rights bill was passed after 8 long
months of debate. And when that bill came to my desk from the Congress for my
signature, the heart of the voting provision had been eliminated.
This time, on this issue, there must be no delay, no hesitation and no compromise with
our purpose.
We cannot, we must not, refuse to protect the right of every American to vote in every
election that he may desire to participate in.
And we ought not and we cannot and we must not wait another 8 months before we get a
bill. We have already waited a hundred years and more, and the time for waiting is gone.
So I ask you to join me in working long hours -- nights and weekends, if necessary -- to
pass this bill. And I don't make that request lightly. For from the window where I sit with
the problems of our country I recognize that outside this chamber is the outraged
conscience of a nation, the grave concern of many nations, and the harsh judgment of
history on our acts.
We Shall Overcome
But even if we pass this bill, the battle will not be over. What happened in Selma is part
of a far larger movement which reaches into every section and State of America. It is the
effort of American Negroes to secure for themselves the full blessings of American life.
Their cause must be our cause too. Because it is not just Negroes, but really it is all of us,
who must overcome the crippling legacy of bigotry and injustice.
And we shall overcome.
As a man whose roots go deeply into Southern soil I know how agonizing racial feelings
are. I know how difficult it is to reshape the attitudes and the structure of our society.
But a century has passed, more than a hundred years, since the Negro was freed. And he
is not fully free tonight.
It was more than a hundred years ago that Abraham Lincoln, a great President of another
party, signed the Emancipation Proclamation, but emancipation is a proclamation and not
a fact.
A century has passed, more than a hundred years, since equality was promised. And yet
the Negro is not equal.
A century has passed since the day of promise. And the promise is unkept.
The time of justice has now come. I tell you that I believe sincerely that no force can hold
it back. It is right in the eyes of man and God that it should come. And when it does, I
think that day will brighten the lives of every American.
For Negroes are not the only victims. How many white children have gone uneducated,
how many white families have lived in stark poverty, how many white lives have been
scarred by fear, because we have wasted our energy and our substance to maintain the
barriers of hatred and terror?
So I say to all of you here, and to all in the Nation tonight, that those who appeal to you
to hold on to the past do so at the cost of denying you your future.
This great, rich, restless country can offer opportunity and education and hope to all:
black and white, North and South, sharecropper and city dweller. These are the enemies:
poverty, ignorance, disease. They are the enemies and not our fellow man, not our
neighbor. And these enemies too, poverty, disease and ignorance, we shall overcome.
An American Problem
Now let none of us in any sections look with prideful righteousness on the troubles in
another section, or on the problems of our neighbors. There is really no part of America
where the promise of equality has been fully kept. In Buffalo as well as in Birmingham,
in Philadelphia as well as in Selma, Americans are struggling for the fruits of freedom.
This is one Nation. What happens in Selma or in Cincinnati is a matter of legitimate
concern to every American. But let each of us look within our own hearts and our own
communities, and let each of us put our shoulder to the wheel to root out injustice
wherever it exists.
As we meet here in this peaceful, historic chamber tonight, men from the South, some of
whom were at Iwo Jima, men from the North who have carried Old Glory to far corners
of the world and brought it back without a stain on it, men from the East and from the
West, are all fighting together without regard to religion, or color, or region, in Viet-Nam.
Men from every region fought for us across the world 20 years ago.
And in these common dangers and these common sacrifices the South made its
contribution of honor and gallantry no less than any other region of the great Republic -and in some instances, a great many of them, more.
And I have not the slightest doubt that good men from everywhere in this country, from
the Great Lakes to the Gulf of Mexico, from the Golden Gate to the harbors along the
Atlantic, will rally together now in this cause to vindi-cate the freedom of all Americans.
For all of us owe this duty; and I believe that all of us will respond to it.
Your President makes that request of every American.
Progress Through the Democratic Process
The real hero of this struggle is the American Negro. His actions and protests, his
courage to risk safety and even to risk his life, have awakened the conscience of this
Nation. His demonstrations have been designed to call attention to injustice, designed to
provoke change, designed to stir reform.
He has called upon us to make good the promise of America. And who among us can say
that we would have made the same progress were it not for his persistent bravery, and his
faith in American democracy.
For at the real heart of battle for equality is a deep-seated belief in the democratic process.
Equality depends not on the force of arms or tear gas but upon the force of moral right;
not on recourse to violence but on respect for law and order.
There have been many pressures upon your President and there will be others as the days
come and go. But I pledge you tonight that we intend to fight this battle where it should
be fought: in the courts, and in the Congress, and in the hearts of men.
We must preserve the right of free speech and the right of free assembly. But the right of
free speech does not carry with it, as has been said, the right to holler fire in a crowded
theater. We must preserve the right to free assembly, but free assembly does not carry
with it the right to block public thoroughfares to traffic.
We do have a right to protest, and a right to march under conditions that do not infringe
the constitutional rights of our neighbors. And I intend to protect all those rights as long
as I am permitted to serve in this office.
We will guard against violence, knowing it strikes from our hands the very weapons
which we seek -- progress, obedience to law, and belief in American values.
In Selma as elsewhere we seek and pray for peace. We seek order. We seek unity. But we
will not accept the peace of stifled rights, or the order imposed by fear, or the unity that
stifles protest. For peace cannot be purchased at the cost of liberty.
In Selma tonight, as in every -- and we had a good day there -- as in every city, we are
working for just and peaceful settlement. We must all remember that after this speech I
am making tonight, after the police and the FBI and the Marshals have all gone, and after
you have promptly passed this bill, the people of Selma and the other cities of the Nation
must still live and work together. And when the attention of the Nation has gone
elsewhere they must try to heal the wounds and to build a new community.
This cannot be easily done on a battleground of violence, as the history of the South itself
shows. It is in recognition of this that men of both races have shown such an
outstandingly impressive responsibility in recent days -- last Tuesday, again today.
Rights Must Be Opportunities
The bill that I am presenting to you will be known as a civil rights bill. But, in a larger
sense, most of the program I am recommending is a civil rights program. Its object is to
open the city of hope to all people of all races.
Because all Americans just must have the right to vote. And we are going to give them
that right.
All Americans must have the privileges of citizenship regardless of race. And they are
going to have those privileges of citizenship regardless of race.
But I would like to caution you and remind you that to exercise these privileges takes
much more than just legal right. It requires a trained mind and a healthy body. It requires
a decent home, and the chance to find a job, and the opportunity to escape from the
clutches of poverty.
Of course, people cannot contribute to the Nation if they are never taught to read or write,
if their bodies are stunted from hunger, if their sickness goes untended, if their life is
spent in hopeless poverty just drawing a welfare check.
So we want to open the gates to opportunity. But we are also going to give all our people,
black and white, the help that they need to walk through those gates.
The Purpose of the Government
My first job after college was as a teacher in Cotulla, Texas, in a small MexicanAmerican school. Few of them could speak English, and I couldn't speak much Spanish.
My students were poor and they often came to class without breakfast, hungry. They
knew even in their youth the pain of prejudice. They never seemed to know why people
disliked them. But they knew it was so, because I saw it in their eyes. I often walked
home late in the afternoon, after the classes were finished, wishing there was more that I
could do. But all I knew was to teach them the little that I knew, hoping that it might help
them against the hardships that lay ahead.
Somehow you never forget what poverty and hatred can do when you see its scars on the
hopeful face of a young child.
I never thought then, in 1928, that I would be standing here in 1965. It never even
occurred to me in my fondest dreams that I might have the chance to help the sons and
daughters of those students and to help people like them all over this country.
But now I do have that chance -- and I'll let you in on a secret -- I mean to use it. And I
hope that you will use it with me.
This is the richest and most powerful country which ever occupied the globe. The might
of past empires is little compared to ours. But I do not want to be the President who built
empires, or sought grandeur, or extended dominion.
I want to be the President who educated young children to the wonders of their world. I
want to be the President who helped to feed the hungry and to prepare them to be
taxpayers instead of taxeaters.
I want to be the President who helped the poor to find their own way and who protected
the right of every citizen to vote in every election.
I want to be the President who helped to end hatred among his fellow men and who
promoted love among the people of all races and all regions and all parties.
I want to be the President who helped to end war among the brothers of this earth.
And so at the request of your beloved Speaker and the Senator from Montana; the
majority leader, the Senator from Illinois; the minority leader, Mr. McCulloch, and other
Members of both parties, I came here tonight -- not as President Roosevelt came down
one time in person to veto a bonus bill, not as President Truman came down one time to
urge the passage of a railroad bill -- but I came down here to ask you to share this task
with me and to share it with the people that we both work for. I want this to be the
Congress, Republicans and Democrats alike, which did all these things for all these
people.
Beyond this great chamber, out yonder in 50 States, are the people that we serve. Who
can tell what deep and unspoken hopes are in their hearts tonight as they sit there and
listen. We all can guess, from our own lives, how difficult they often find their own
pursuit of happiness, how many problems each little family has. They look most of all to
themselves for their futures. But I think that they also look to each of us.
Above the pyramid on the great seal of the United States it says -- in Latin -- "God has
favored our undertaking."
God will not favor everything that we do. It is rather our duty to divine His will. But I
cannot help believing that He truly understands and that He really favors the undertaking
that we begin here tonight.
Source: Lyndon B. Johnson, Public Papers of the Presidents of the United States: Lyndon
Johnson, vol. 1 (1965), 281.
BACKGROUNDER ON THE COURT JUDGEMENT
OF THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA V. BAKKE CASE
Following passage of the 1964 and 1965 Civil Rights acts, President Johnson came to
believe that it was not enough just to remove legal barriers confronting minorities; some
form of affirmative action would be needed to help minorities overcome decades of prior
discrimination. On September 24, 1965, Johnson issued an executive order requiring
federal contractors to take affirmative action to recruit, hire and promote more racial
minorities; two years later, in another executive order, Johnson added women to the
groups covered by previous antidiscrimination orders.
Affirmative action became one of the most divisive issues of the 1970s and 1980s, and
yet the debate over affirmative action can also be seen as part of the process of
democracy. Put in starkest terms, proponents of affirmative action argue that because of
prior discrimination in education and employment, women and minorities are
handicapped when they apply to good schools, seek decent jobs or look for promotions.
Therefore, to overcome the results of this past discrimination, colleges and employers
ought to give some sort of preferred treatment to minorities, either by actively seeking
minority applicants or by setting up a quota of jobs or school spaces reserved for women
and minorities. Only by making this effort to bring minorities into the mainstream, goes
the argument, can the effects of decades of discrimination finally be erased.
Opponents do not deny that there has been discrimination in the past, but argue that the
white male who must lose his chance at entrance to a particular college or job is being
penalized unfairly. He had nothing to do with slavery one or two centuries ago, and may
not have anything to do with discriminatory practices today. Why should an individual be
penalized for what the society has done; conversely, why should the individual minority
member benefit today for what was done to his or her ancestors decades ago?
The question came to the Supreme Court, and in the initial decision, the Court split, with
four members asserting that affirmative action plans involving racial classification were
permissible under the Fourteenth Amendment, and four others claiming that any racial
considerations violated the 1964 Civil Rights Act. Justice Lewis Powell believed that
some affirmative action plans, if carefully crafted, could pass both constitutional and
statutory scrutiny, and he shaped a classic transitional decision. Race could be a factor,
but only one of many, used to seek a balance. The decision did not really answer the
questions raised by affirmative action, but paved the way for the Court and the society to
adopt some affirmative action plans, and to begin the debate over just how far to go in
this difficult area.
For further reading: Boris I. Bittker, The Case for Black Reparations (1973); Allen P.
Sindler, Bakke, DeFunis and Minority Admissions: The Quest for Equal Opportunity
(1978); Melvin I. Urofsky, A Conflict of Rights: The Supreme Court and Affirmative
Action (1991).
REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE (1978)
Justice Powell announced the judgement of the Court.
This case presents a challenge to the special admissions program of the petitioner, the
Medical School of the University of California at Davis, which is designed to assure the
admission of a specified number of students from certain minority groups. The Supreme
Court of California held the special admissions program unlawful, enjoined petitioner
from considering the race of any applicant, and ordered Bakke's admission. For the
reasons stated in the following opinion, I believe that so much of the judgement of the
California court as holds petitioner's special admissions program unlawful and directs
that respondent be admitted to the Medical School must be affirmed. For reasons
expressed in a separate opinion, my Brother The Chief Justice, Mr. Justice Stewart, Mr.
Justice Rehnquist, and Mr. Justice Stevens concur in this judgment. I also conclude for
the reasons stated in the following opinion that the portion of the court's judgement
enjoining petitioner from according any consideration to race in its admissions process
must be reversed. For reasons expressed in separate opinions, my Brothers Mr. Justice
Brennan, Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Blackmun concur in
this judgement.
Affirmed in part and reversed in part...
Because the special admissions program involved in a racial classification, the supreme
court [of California] held itself bound to apply strict scrutiny. It then turned to the goals
the University presented as justifying the special program. Although the court agreed that
the goals of integrating the medical profession and increasing the number of physicians
willing to serve members of minority groups were compelling state interests, it concluded
that the special admissions program was not the least intrusive means of achieving those
goals. Without passing on the state constitutional or the federal statutory grounds cited in
the trial court's judgement, the California court held that the Equal Protection Clause
required that "no applicant may be rejected because of his race, in favor of another who is
less qualified, as measured by standards applied without regard to race."...
III. A. The parties disagree as to the level of judicial scrutiny to be applied to the special
admissions program. En route to this crucial battle over the scope of judicial review, the
parties fight a sharp preliminary action over the proper characterization of the special
admissions program. Petitioner prefers to view it as establishing a "goal" of minority
representation in the medical school. Respondent, echoing the courts below, labels it a
racial quota. This semantic distinction is beside the point: the special admissions program
is undeniably a classification based on race and ethnic background. To the extent that
there existed a pool of at least minimally qualified minority applicants to fill the 16
special admissions seats white applicants could compete only for 84 seats in the entering
class, rather than the 100 open to minority applicants. Whether this limitation is described
as a quota or a goal, it is a line drawn on the basis of race and ethnic status.
The guarantees of the 14th Amendment extend to all persons. Its language is explicit. The
guarantee of equal protection cannot mean one thing when applied to one individual and
something else when applied to a person of another color. If both are not accorded the
same protection, then it is not equal. Nevertheless, petitioner argues that the court below
erred in applying strict scrutiny because white males are not a "discrete and insular
minority" requiring extraordinary protection from the majoritarian political process. This
rationale, however, has never been invoked in our decisions as a prerequisite to
subjecting racial or ethnic distinctions to strict scrutiny. Nor has this Court held that
discreteness and insularity constitute necessary preconditions to holding that a particular
classification is invidious... Racial and ethnic classifications, however, are subject to
stringent examinations without regard to these additional characteristics. We declared as
much in the first cases explicitly to recognize racial distinctions as suspect and thus call
for the most exacting judicial examination.
B...Over the past 30 years, this Court has embarked upon the crucial mission of
interpreting the Equal Protection Clause with the view of assuring to all persons "the
protection of equal laws," in a Nation confronting a legacy of slavery and racial
discrimination. Because the landmark decisions in this area arose in response to the
continued exclusion of Negroes from the mainstream of American society, they could be
characterized as involving discrimination by the "majority" white race against the Negro
minority. But they need not be read as depending upon that characterization for their
results. It suffices to say that "over the years, this Court consistently repudiated
'distinctions between citizens solely because of their ancestry' as being 'odious to a free
people whose institutions are founded upon the doctrine of equality.'" Petitioner urges us
to adopt for the first time a more restrictive view of the Equal Protection Clause and hold
that discrimination against members of the white "majority" cannot be suspect if its
purpose can be characterized as "benign." The clock of our liberties, however, cannot be
turned back to 1868. It is far too late to argue that the guarantee of equal protection to all
persons permits the recognition of special wards entitled to a degree of protection greater
than that accorded others. "The 14th Amendment is not directed solely against
discrimination due to a 'two-class theory' -- that is, based upon differences between
'white' and Negro."
Once the artificial line of a "two-class theory" of the 14th Amendment is put aside, the
difficulties entailed in varying the level of judicial review according to a perceived
"preferred" status of a particular racial or ethnic minority are intractable. The concepts of
"majority" and "minority" necessarily reflect temporary arrangements and political
judgments. As observed above, the white "majority" itself is composed of various
minority groups, most of which can lay claim to a history of prior discrimination at the
hands of the State and private individuals. Not all of these groups can receive preferential
treatment and corresponding judicial tolerance of distinctions drawn in terms of race and
nationality, for then the only "majority" left would be a new minority of white AngloSaxon Protestants. There is no principled basis for deciding which groups would merit
"heightened judicial solicitude" and which would not. Courts would be asked to evaluate
the extent of the prejudice and consequent harm suffered by various minority groups.
Those whose societal injury is thought to exceed some arbitrary level of tolerability then
would be entitled to preferential classifications at the expense of individuals belonging to
other groups. Those classifications would be free from exacting judicial scrutiny. As
these preferences began to have their desired effect, and the consequences of past
discrimination were undone, new judicial rankings would be necessary. The kind of
variable sociological and political analysis necessary to produce such rankings simply
does not lie within the judicial competence -- even if they otherwise were politically
feasible and socially desirable.
Moreover, there are serious problems of justice connected with the idea of preference
itself. First, it may not always be clear that a so-called preference is in fact benign. Courts
may be asked to validate burdens imposed upon individual members of particular groups
in order to advance the group's general interest. Nothing in the Constitution supports the
notion that individuals may be asked to suffer otherwise impermissible burdens in order
to enhance the societal standing of their ethnic groups. Second, preferential programs
may only reinforce common stereotypes holding that certain groups are unable to achieve
success without special protection based on a factor having no relationship to individual
worth. Third, there is a measure of inequity in forcing innocent persons in respondent's
position to bear the burdens of redressing grievances not of their making. By hitching the
meaning of the Equal Protection Clause to these transitory considerations, we would be
holding, as a constitutional principle, that judicial scrutiny of classifications touching on
racial and ethnic background may vary with the ebb and flow of political forces.
Disparate constitutional tolerance of such classifications well may serve to exacerbate
racial and ethnic antagonism rather than alleviate them. Also, the mutability of a
constitutional principle, based upon shifting political and social judgments, undermines
the chances for consistent application of the Constitution from one generation to the next,
a critical feature of its coherent interpretation...
If it is the individual who is entitled to judicial protection against classifications based
upon his racial or ethnic background because such distinctions impinge upon personal
rights, rather than the individual only because of his membership in a particular group,
then constitutional standards may be applied consistently. Political judgments regarding
the necessity for the particular classification may be weighed in the constitutional balance,
but the standard of justification will remain constant. This is as it should be, since those
political judgments are the product of rough compromise struck by contending groups
within the democratic process. When they touch upon an individual's race or ethnic
background, he is entitled to a judicial determination that the burden he is asked to bear
on that basis is precisely tailored to serve a compelling governmental interest...
IV. We have held that in "order to justify the use of a suspect classification, a State must
show that its purpose or interest is both constitutionally permissible and substantial, and
that its use of the classification is 'necessary to the accomplishment' of its purpose or the
safeguarding of its interest." The special admissions program purports to serve the
purposes of : (i) "reducing the historic deficit of traditionally disfavored minorities in
medical schools and the medical profession;" (ii) countering the effects of societal
discrimination; (iii) increasing the number of physicians who will practice in
communities currently undeserved; and (iv) obtaining the educational benefits that flow
from an ethnically diverse student body. It is necessary to decide which, if any, of these
purposes is substantial enough to support the use of a suspect classification.
A. If petitioner's purpose is to assure within its student body some specified percentage of
a particular group merely because of its race or ethnic origin, such a preferential purpose
must be rejected not as insubstantial but as facially invalid. Preferring members of any
one group for no reason other than race or ethnic origin is discrimination for its own sake.
This the Constitution forbids.
B. The State certainly has a legitimate and substantial interest in ameliorating, or
eliminating where feasible, the disabling effects of identified discrimination. The school
desegregation cases attest to the importance of this state goal, which is far more focused
than the remedying of the effects of "societal discrimination," an amorphous concept of
injury that may be ageless in its reach into the past. We have never approved a
classification that aids persons perceived as members of relatively victimized groups at
the expense of other innocent individuals in the absence of judicial, legislative, or
administrative findings of constitutional or statutory violations... Without such findings
of constitutional or statutory violations, it cannot be said that the government has any
greater interest in helping one individual than in refraining from harming another. Thus,
the government has no compelling justification for inflicting such harm.
Petitioner does not purport to have made, and is in no position to make, such findings. Its
broad mission is education, not the formulation of any legislative policy or the
adjudication of particular claims of illegality...
C. Petitioner identifies, as another purpose of its program, improving the delivery of
health care services to communities currently underserved. It may be assumed that in
some situations a State's interest in facilitating the health care of its citizens is sufficiently
compelling to support the use of suspect classification. But there is virtually no evidence
in the record indicating that petitioner's special admissions program is either needed or
geared to promote that goal. Petitioner simply has not carried its burden of demonstrating
that it must prefer members of particular ethnic groups over all other individuals in order
to promote better health care delivery to deprived citizens. Indeed, petitioner has not
shown that its preferential classification is likely to have any significant effect on the
problem.
D. The fourth goal asserted by petitioner is the attainment of a diverse student body. This
clearly is a constitutionally permissible goal for an institution of higher education.
Academic freedom, though not a specifically enumerated constitutional right, long has
been viewed as a special concern of the First Amendment. The freedom of a university to
make its own judgments as to education includes the selection of its student body. Thus,
in arguing that its university must be accorded the right to select those students who will
contribute the most to the "robust exchange of ideas," petitioner invokes a countervailing
constitutional interest, that of the First Amendment. In this light, petitioner must be
viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of
its mission. It may be argued that there is greater force to these views at the
undergraduate level than in a medical school where the training is centered primarily on
professional competency. But even at the graduate level, our tradition and experience
lend support to the view that the contribution of diversity is substantial. Physicians serve
a heterogeneous population. An otherwise qualified medical student with a particular
background -- whether it be ethnic, geographic, culturally advantaged or disadvantaged -may bring to a professional school of medicine experiences, outlooks and ideas that
enrich the training of its student body and better equip its graduates to render with
understanding their vital service to humanity.
Ethnic diversity, however, is only one element in a range of factors a university properly
may consider in attaining the goal of a heterogeneous student body. Although a university
must have a wide discretion in making the sensitive judgements as to who should be
admitted, constitutional limitations protecting individual rights may not be disregarded.
Respondent urges -- and the courts below have held -- that petitioner's dual admissions
program is a racial classification that impermissibly infringes his right under the 14th
Amendment. As the interest of diversity is compelling in the context of a university's
admissions program, the question remains whether the program's racial classification is
necessary to promote this interest.
V. A. It may be assumed that the reservation of a specified number of seats in each class
for individuals from the preferred ethnic groups would contribute to the attainment of
considerable ethnic diversity in the student body. But petitioner's argument that this is the
only effective means of serving the interest of diversity is seriously flawed...
The experience of other university admissions programs, which take race into account in
achieving the educational diversity valued by the First Amendment, demonstrates that the
assignment of a fixed number of places to a minority group is not a necessary means
toward that end... In such an admissions program, race or ethnic background may be
deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from
comparison with all other candidates for the available seats. The file of a particular black
applicant may be examined for his potential contribution to diversity without the factor of
race being decisive when compared, for example, with that of an applicant identified as
an Italian-American if the latter is thought to exhibit qualities more likely to promote
beneficial educational pluralism. Such qualities could include exceptional personal talents,
unique work or service experience, leadership potential, maturity, demonstrated
compassion, a history of overcoming disadvantage, ability to communicate with the poor,
or other qualifications deemed important. In short, an admissions program operated in
this way is flexible enough to consider all pertinent elements of diversity in light of the
particular qualifications of each applicant, and to place them on the same footing for
consideration, although not necessarily according them the same weight. Indeed, the
weight attributed to a particular quality may vary from year to year depending upon the
"mix" both of the student body and the applicants for the incoming class.
B. In summary, it is evident that the Davis special admissions program involves the use
of an explicit racial classification never before countenanced by the Court. It tells
applicants who are not Negro, Asian, or "Chicano" that they are totally excluded from a
specific percentage of the seats in an entering class. No matter how strong their
qualifications, quantitative and extracurricular, including their own potential for
contribution to educational diversity, they are never afforded the chance to compete with
applicants from the preferred groups for the special admissions seats. At the same time,
the preferred applicants have the opportunity to compete for every seat in the class. The
fatal flaw in petitioner's program is its disregard of individual rights as guaranteed by the
14th Amendment. Such rights are not absolute. But when a State's distribution of benefits
or imposition of burdens hinges on the color of a person's skin or ancestry, that individual
is entitled to a demonstration that the challenged classification is necessary to promote a
substantial state interest. Petitioner has failed to carry this burden. For this reason, that
portion of the California court's judgment holding petitioner's special admissions program
invalid under the 14th Amendment must be affirmed.
C. In enjoining petitioner from ever considering the race of any applicant, however, the
courts below failed to recognize that the State has a substantial interest that legitimately
may be served by a properly devised admissions program involving the competitive
consideration of race and ethnic origin. For this reason, so much of the California court's
judgment as enjoins petitioner from any consideration of the race of any applicant must
be reversed.
VI. With respect to respondent's entitlement to an injunction directing his admission to
the Medical School, petitioner has conceded that it could not carry its burden of proving
that, but for the existence of its unlawful special admissions program, respondent still
would not have been admitted. Hence, respondent is entitled to the injunction, and that
portion of the judgment must be affirmed.
Source: 438 U.S. 265 (1978).
PART VII: FREEDOM OF EXPRESSION
The First Amendment is considered by some to be the single most important guarantor of
the rights of Americans, and the key to successful democratic government. The
amendment protects several rights -- freedom of religious practice, freedom from
government-imposed religion, freedom of speech and the press, the right to assemble
peacefully and the right to petition the government for redress.
These rights encompass all forms of expression, and the framers of the Constitution
believed that in a democratic society, the right to express oneself without fear of
government punishment was the basis of true and effective citizen participation in and
control of the government. Thomas Jefferson believed that a free press, one that
constantly monitored the activities of public officials, kept government from becoming
tyrannical. Other commentators, from the eighteenth century on, picked up on this theme,
and some of the most celebrated court cases in the nation's history have concerned the
limits of free expression.
The colonists arrived in this country bringing with them English notions regarding the
relation of church to society, as well as common law limits on speech and press. In
England, and indeed in the rest of Europe, the notion of a single established church had
been widespread for centuries. Both the ecclesiastical and the secular authorities were
seen as agencies of God, with each supporting the other in carrying out their common
duty. It made no more sense to have more than one religion in a society than to have
more than one king; multiple religions, like multiple claimants to the crown, would do
little but stir up antagonism.
When British settlers came to North America, they brought with them this idea of an
established church, one which enjoyed a monopoly and the protection of the state, and
which was supported by taxes imposed by the state. The Puritans who wished to escape
what they saw as the corruption of the Church of England believed fervently in an
established church -- but of their own beliefs. In Virginia and a number of other colonies,
the Anglican Church enjoyed the same status in the New World as it did in the Mother
Country.
But in America, unlike England, a number of competing religions vied with the Anglican
Church for the loyalty of the settlers. Dissident sects who were persecuted for their
heresies in the British Isles and on the continent came to the American colonies, where
they preached their doctrines and gained adherents. By the time of the American
Revolution, no one faith, even in colonies with established churches, really commanded
the loyalty of a large majority of the people. But because there were so many groups,
Americans necessarily learned to tolerate dissenting viewpoints.
Similarly, freedom of speech and press also underwent a transformation in the colonies.
In England the law of libel had been very clear: if you printed a statement that attacked a
person's reputation or impugned the integrity of a government official, you were guilty of
libel, regardless of the truth or falsity of the statement. The libel trial of John Peter
Zenger in 1734 made the first significant American modification to this rule. Zenger,
accused of seditious libel, appealed to the jury to determine not just the fact that he had
printed statements regarding the governor's conduct, but whether they were true; if true,
he claimed, then he should not be held liable for having printed them. Zenger won, and
now the truth of the statement could be entered as a complete defense to the charge of
libel, a rule not adopted in the mother country until the nineteenth century.
But the notion of seditious libel, of statements impugning the authority of government,
remained part of American law even beyond the adoption of the First Amendment. In
1798 the government passed the Sedition Law, which fully embodied English views, and
in World War I the Sedition Act was passed to limit criticism of the government.
Beginning with the war case of Abrams v. United States in 1919, the judiciary began to
move away from the older British notions, and to adopt the modern American view that
free and unhindered speech, no matter how offensive it may be to the government or to
others, is to be the rule, and that there can be no government censorship of ideas.
The development of First Amendment rights is not complete. Contemporary social
passions, varieties of religious beliefs and the strong feeling among many that religion
ought to be supported by government, the built-in conflict between a press that wants to
know everything and governments that wish to disclose as little as possible as well as the
implications of modern technology for retrieving and disseminating information continue
to make the debate over the meaning and limits of the First Amendment timely and of
eternal importance to democratic society.
BACKGROUNDER ON THE VIRGINIA STATUTE
FOR RELIGIOUS FREEDOM
In Virginia, the American Revolution led to the disestablishment of the Anglican Church,
which had been tied closely to the royal government. Then the question arose as to
whether the new state should continue to impose taxes to be used for the support of all
recognized churches. The proposal had a number of supporters who, even if they no
longer accepted an established church, still believed that religion should be supported by
the public purse.
For some Virginians, however, imposing religion on people smacked of tyranny. Thomas
Jefferson and James Madison, both of whom would later be president of the United States,
argued that religious beliefs should be solely matters of individual conscience and
completely immune from any interference by the state. Moreover, religious activity of
any sort should be wholly voluntary. Not only did they oppose taxing people to support
an established church, but they also objected to forcing people to pay taxes even for their
own church. To Jefferson, a high wall of separation should always keep church and state
apart.
Jefferson drafted the following measure, but it was Madison who skillfully secured its
adoption by the Virginia legislature in 1786. It is still part of modern Virginia's
constitution, and it has not only been copied by other states but was also the basis for the
Religion Clauses in the Constitution's Bill of Rights. Both men considered this bill one of
the great achievements of their lives, and Jefferson directed that on his tombstone he
should not be remembered as president of the United States or for any of the other high
offices he held, but as the author of the Declaration of Independence and the Virginia
Statute for Religious Freedom, and as the founder of the University of Virginia.
For further reading: William Lee Miller, The First Liberty: Religion and the American
Republic (1985); Leonard W. Levy, The Establishment Clause and the First Amendment
(1986); Merrill D. Peterson and Robert C. Vaughn, eds., The Virginia Statute for
Religious Freedom: Its Evolution and Consequences in American History (1988).
VIRGINIA STATUTE FOR RELIGIOUS FREEDOM
Whereas Almighty God hath created the mind free; that all attempts to influence it by
temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of
hypocrisy and meanness, and are a departure from the plan of the Holy author of our
religion, who being Lord both of body and mind, yet chose not to propagate it by
coercions on either, as it was in his Almighty power to do; that the impious presumption
of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible
and uninspired men, have assumed dominion over the faith of others, setting up their own
opinions and modes of thinking as the only true and infallible, and as such endeavouring
to impose them on others, hath established and maintained false religions over the
greatest part of the world, and through all time; that to compel a man to furnish
contributions of money for the propagation of opinions which he disbelieves, is sinful and
tyrannical; that even the forcing him to support this or that teacher of his own religious
persuasion, is depriving him of the comfortable liberty of giving his contributions to the
particular pastor, whose morals he would make his pattern, and whose powers he feels
most persuasive to righteousness, and is withdrawing from the ministry those temporary
rewards, which proceeding from an approbation of their personal conduct, are an
additional incitement to earnest and unremitting labours for the instruction of mankind;
that our civil rights have no dependence on our religious opinions, any more than our
opinions in physics or geometry; that therefore the proscribing any citizen as unworthy
the public confidence by laying upon him an incapacity of being called to offices of trust
and emolument, unless he profess or renounce this or that religious opinion, is depriving
him injuriously of those privileges and advantages to which in common with his fellowcitizens he has a natural right; that it tends only to corrupt the principles of that religion it
is meant to encourage, by bribing with a monopoly of worldly honours and emoluments,
those who will externally profess and conform to it; that though indeed these are criminal
who do not withstand such temptation, yet neither are those innocent who lay the bait in
their way; that to suffer the civil magistrate to intrude his powers into the field of opinion,
and to restrain the profession or propagation of principles on supposition of their ill
tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he
being of course judge of that tendency will make his opinions the rule of judgment, and
approve or condemn the sentiments of others only as they shall square with or differ from
his own; that it is time enough for the rightful purposes of civil government, for its
officers to interfere when principles break out into overt acts against peace and good
order; and finally, that truth is great and will prevail if left to herself, that she is the
proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless
by human interposition disarmed of her natural weapons, free argument and debate,
errors ceasing to be dangerous when it is permitted freely to contradict them:
Be it enacted by the General Assembly, That no man shall be compelled to frequent or
support any religious worship, place, or ministry whatsoever, nor shall be enforced,
restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on
account of his religious opinions or belief; but that all men shall be free to profess, and by
argument to maintain, their opinion in matters of religion, and that the same shall in no
wise diminish enlarge, or affect their civil capacities.
And though we well know that this assembly elected by the people for the ordinary
purposes of legislation only, have no power to restrain the acts of succeeding assemblies,
constituted with powers equal to our own, and that therefore to declare this act to be
irrevocable would be of no effect in law; yet we are free to declare, and do declare, that
the rights hereby asserted are of the natural rights of mankind, and that if any act shall be
hereafter passed to repeal the present, or to narrow its operation, such act shall be an
infringement of natural right.
Source: W.W. Hening, ed., Statutes at Large of Virginia, vol. 12 (1823): 84-86.
INTRODUCTION TO JUSTICE HOLMES'
DISSENTING OPINION ON THE ABRAMS V.
UNITED STATES CASE
The Supreme Court's first attempts to define constitutionally protected expression came
in a series of cases growing out of prosecutions under the 1918 Sedition Act and other
laws. Ironically, the "war to make the world safe for democracy" triggered the worst
invasion of civil liberties at home since the nation's founding. The government obviously
had to protect itself from subversion, but the new statutes seemed aimed as much at
suppressing radical criticism of administration policy as at ferreting out spies. The federal
laws, as well as some state counterparts, caught radicals, pacifists and other dissenters in
an extensive web. The total number of indictments ran into the thousands; the Attorney
General reported 877 convictions out of 1,956 cases commenced in 1919 and 1920.
The initial challenge to the law came in the 1919 case of Schenck v. United States, in
which a prominent socialist leader had been indicted and convicted for urging resistance
to the draft. A unanimous Court had upheld the conviction, and Justice Oliver Wendell
Holmes did not depart very far from the older British notion that free speech and press
meant little more than no prior restraint, that is, one could say what one wanted, but then
could be prosecuted for it. Freedom of speech, he declared, was not unlimited, and in a
famous aphorism noted that one could not shout "Fire!" in a crowded theater.
The test he announced at that time became the basis for all speech tests for the next fifty
years: "The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a right to prevent. It is a question
of proximity and degree."
Holmes, who thought the Schenck case simple, was surprised at the criticism it evoked
among people he respected in the academic community. Professor Ernst Freund of the
University of Chicago, for example, argued that "tolerance of adverse opinion is not a
matter of generosity but of political prudence." Holmes, who had always enjoyed the
respect of legal scholars, did not understand their objections, and he agreed to meet with
Professor Zechariah Chafee, Jr., of the Harvard Law School. Chafee convinced Holmes
that free speech served important national purposes, and the country would suffer more
from restriction on that speech than from alleged and vague dangers posed by unpopular
doctrines. Within a short time Chafee's arguments bore fruit.
Jacob Abrams and others had been convicted of distributing pamphlets criticizing the
Wilson administration for sending troops to Russia in the summer of 1918. Although the
government could not prove that the pamphlets had actually hindered the operation of the
military, an anti-radical lower court judge had found that they might have done so, and
found Abrams and his co-defendants guilty. On appeal, seven members of the Supreme
Court had used Holmes's "clear and present danger" test to sustain the conviction. But
Holmes, joined by Louis D. Brandeis, dissented, and it is this dissent that is widely
recognized as the starting point in modern judicial concern for free expression.
For further reading: Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme
Court, and Free Speech (1987); Paul Murphy, World War I and the Origins of Civil
Liberties in the United States (1979); Zechariah Chafee, Jr., Free Speech in the United
States (1920; rev. ed. 1941); Robert K. Murray, Red Scare (1955).
ABRAMS V. UNITED STATES (1919)
Justice Holmes dissenting.
This indictment is founded wholly upon the publication of two leaflets which I shall
describe here in a moment. The first count charges a conspiracy pending the war with
Germany to publish abusive language about the form of government of the United States,
laying the preparation and publishing of the first leaflet as overt acts. The second count
charges a conspiracy pending the war to publish language intended to bring the form of
government into contempt, laying the preparation and publishing of the two leaflets as
overt acts. The third count alleges a conspiracy to encourage resistance to the United
States in the same war and to attempt to effectuate the purpose by publishing the same
leaflets. The fourth count lays a conspiracy to incite curtailment of production of things
necessary to the prosecution of the war and to attempt to accomplish it by publishing the
second leaflet to which I have referred.
The first of these leaflets says that the President's cowardly silence about the intervention
in Russia reveals the hypocrisy of the plutocratic gang in Washington. It intimates that
"German militarism combined with allied capitalism to crush the Russian revolution" -goes on that the tyrants of the world fight each other until they see a common enemy -working class enlightenment, when they combine to crush it; and that now militarism and
capitalism combined, though not openly, to crush the Russian revolution. It says that
there is only one enemy of the workers of the world and that is capitalism; that it is a
crime for workers of America, &c., to fight the workers' republic of Russia, and ends
"Awake! Awake, you Workers of the World! Revolutionists." A note adds "It is absurd to
call us pro-German. We hate and despise German militarism more than do you
hypocritical tyrants. We have more reasons for denouncing German militarism than has
the coward of the White House."
The other leaflet, headed "Workers -- Wake Up," with abusive language says that
America together with the Allies will march for Russia to help the Czecko-Slovaks in
their struggle against the Bolsheviki, and that this time the hypocrites shall not fool the
Russian emigrants and friends of Russia in America. It tells the Russian emigrants that
they now must spit in the face of the false military propaganda by which their sympathy
and help to the prosecution of the war have been called forth and says that with the
money they have lent or are going to lend "they will make bullets not only for the
Germans but also for the Workers Soviets of Russia," and further, "Workers in the
ammunition factories, you are producing bullets, bayonets, cannon, to murder not only
the Germans, but also your dearest, best, who are in Russia and are fighting for freedom."
It then appeals to the same Russian emigrants at some length not to consent to the
"inquisitionary expedition to Russia," and says that the destruction of the Russian
revolution is "the politics of the march to Russia." The leaflet winds up by saying
"Workers, our reply to this barbaric intervention has to be a general strike!," and after a
few words on the spirit of revolution, exhortations not to be afraid, and some usual tall
talk ends "Woe unto those who will be in the way of progress. Let solidarity live! The
Rebels."...
the ammunition factories that they are producing bullets to murder their dearest, and the
further advocacy of a general strike, both in the second leaflet, do urge curtailment of
production of things necessary to the prosecution of the war within the meaning of the
Act of May 16, 1918, c. 75, 40 Stat. 553, amending Section 3 of the earlier Act of 1917.
But to make the conduct criminal that statute requires that it should be "with intent by
such curtailment to cripple or hinder the United States in the prosecution of the war." It
seems to me that no such intent is proved.
I am aware of course that the word intent as vaguely used in ordinary legal discussion
means no more than knowledge at the time of the act that the consequences said to be
intended will ensue. Even less than that will satisfy the general principle of civil and
criminal liability. A man may have to pay damages, may be sent to prison, at common
law might be hanged, if at the time of his act he knew facts from which common
experience showed that the consequences would follow, whether he individually could
foresee them or not. But, when words are used exactly, a deed is not done with intent to
produce a consequence unless that consequence is the aim of the deed. It may be obvious,
and obvious to the actor, that the consequence will follow, and he may be liable for it
even if he regrets it, but he does not do the act with intent to produce it unless the aim to
produce it is the proximate motive of the specific act, although there may be some deeper
motive behind. It seems to me that this statute must be taken to use its words in a strict
and accurate sense. They would be absurd in any other. A patriot might think that we
were wasting money on aeroplanes, or making more cannon of a certain kind than we
needed, and might advocate curtailment with success, yet even if it turned out that the
curtailment hindered and was thought by other minds to have been obviously likely to
hinder the United States in the prosecution of the war, no one would hold such conduct a
crime. I admit that my illustration does not answer all that might be said but it is enough
to show what I think and to let me pass to a more important aspect of the case. I refer to
the First Amendment to the Constitution that Congress shall make no law abridging the
freedom of speech.
I never have seen any reason to doubt that the questions of law that alone were before this
Court in the cases of Schenck, Frohwerk and Debs,...were rightly decided. I do not doubt
for a moment that by the same reasoning that would justify punishing persuasion to
murder, the United States constitutionally may punish speech that produces or is intended
to produce a clear and imminent danger that it will bring about forthwith certain
substantive evils that the United States constitutionally may seek to prevent. The power
undoubtedly is greater in time of war than in time of peace because war opens dangers
that do not exist at other times.
But as against dangers peculiar to war, as against others, the principle of the right to free
speech is always the same. It is only the present danger of immediate evil or an intent to
bring it about that warrants Congress in setting a limit to the expression of opinion where
private rights are not concerned. Congress certainly cannot forbid all effort to change the
mind of the country. Now nobody can suppose that the surreptitious publishing of a silly
leaflet by an unknown man, without more, would present any immediate danger that its
opinions would hinder the success of the government arms or have any appreciable
tendency to do so. Publishing those opinions for the very purpose of obstructing however,
might indicate a greater danger and at any rate would have the quality of an attempt. So I
assume that the second leaflet if published for the purposes alleged in the fourth count
might be punishable. But it seems pretty clear to me that nothing less than that would
bring these papers within the scope of this law. An actual intent in the sense that I have
explained is necessary to constitute an attempt, where a further act of the same individual
is required to complete the substantive crime...It is necessary where the success of the
attempt depends upon others because if that intent is not present the actor's aim may be
accomplished without bringing about the evils sought to be checked. An intent to prevent
interference with the revolution in Russia might have been satisfied without any
hindrance to carrying on the war in which we were engaged.
I do not see how anyone can find the intent required by the statute in any of the
defendants' words. The second leaflet is the only one that affords even a foundation for
the charge, and there, without invoking the hatred of German militarism expressed in the
former one, it is evident from the beginning to the end that the only object of the paper is
to help Russia and stop American intervention there against the popular government -not to impede the United States in the war that it was carrying on. To say that two phrases
taken literally might import a suggestion of conduct that would have interference with the
war as an indirect and probably undesired effect seems to me by no means enough to
show an attempt to produce that effect.
I return for a moment to the third count. That charges an intent to provoke resistance to
the United States in its war with Germany. Taking the clause in the statute that deals with
that in connection with the other elaborate provisions of the act, I think that resistance to
the United States means some forcible act of opposition to some proceeding of the United
States in pursuance of the war. I think the intent must be the specific intent that I have
described and for the reasons that I have given I think that no such intent was proved or
existed in fact. I also think that there is no hint at resistance to the United States as I
construe the phrase.
In this case sentences of twenty years imprisonment have been imposed for the
publishing of two leaflets that I believe the defendants had as much right to publish as the
Government has to publish the Constitution of the United States now vainly invoked by
them. Even if I am technically wrong and enough can be squeezed from these poor and
puny anonymities to turn the color of legal litmus paper; I will add, even if what I think
the necessary intent were shown; the most nominal punishment seems to me all that
possibly could be inflicted, unless the defendants are to be made to suffer not for what the
indictment alleges but for the creed that they avow -- a creed that I believe to be the creed
of ignorance and immaturity when honestly held, as I see no reason to doubt that it was
held here, but which, although made the subject of examination at the trial, no one has a
right even to consider in dealing with the charges before the Court.
Persecution for the expression of opinions seems to me perfectly logical. If you have no
doubt of your premises or your power and want a certain result with all your heart you
naturally express your wishes in law and sweep away all opposition. To allow opposition
by speech seems to indicate that you think the speech impotent, as when a man says that
he has squared the circle, or that you do not care whole-heartedly for the result, or that
you doubt either your power or your premises. But when men have realized that time has
upset many fighting faiths, they may come to believe even more than they believe the
very foundations of their own conduct that the ultimate good desired is better reached by
free trade in ideas -- that the best test of truth is the power of the thought to get itself
accepted in the competition of the market, and that truth is the only ground upon which
their wishes safely can be carried out. That at any rate is the theory of our Constitution. It
is an experiment, as all life is an experiment. Every year if not every day we have to
wager our salvation upon some prophecy based upon imperfect knowledge. While that
experiment is part of our system I think that we should be eternally vigilant against
attempts to check the expression of opinions that we loathe and believe to be fraught with
death, unless they so imminently threaten immediate interference with the lawful and
pressing purposes of the law that an immediate check is required to save the country. I
wholly disagree with the argument of the Government that the First Amendment left the
common law as to seditious libel in force. History seems to me against the notion. I had
conceived that the United States through many years had shown its repentance for the
Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it
immediately dangerous to leave the correction of evil counsels to time warrants making
any exception to the sweeping command, "Congress shall make no law expressions of
opinion and exhortations, which were all that were uttered here, but I regret that I cannot
put into more impressive words my belief that in their conviction upon this indictment the
defendants were deprived of their rights under the Constitution of the United States.
Mr. Justice Brandeis concurs with the foregoing opinion.
Source: 250 U.S. 616 (1919).
INTRODUCTION TO THE COURT OPINION ON
THE WHITNEY V. CALIFORNIA CASE
Anita Whitney, a member of a distinguished California family, was convicted under the
state's 1919 Criminal Syndicalism Act for allegedly helping to establish the Communist
Labor Party, a group the state charged was devoted to teaching the violent overthrow of
government. Whitney claimed that it had not been her intention, nor that of other
organizers, that the party become an instrument of violence.
The Court, by a 7-2 vote, upheld the conviction and Justice Sanford, for the majority,
invoked the Holmes test of "clear and present danger," but went further. The state, he
declared, has the power to punish those who abuse their rights to speech "by utterances
inimical to the public welfare, tending to incite crime, disturb the public peace, or
endanger the foundations of organized government and threaten its overthrow." In other
words, if words have a "bad tendency" they can be punished.
The Whitney case is most noted for Justice Louis D. Brandeis's concurrence, which many
scholars have lauded as perhaps the greatest defense of freedom of speech ever written by
a member of the high court. (He and Justice Holmes concurred in the result because of
certain technical issues, but there is no question that the sentiments are a distinct dissent
from the views of the prevailing majority.)
Holmes in Abrams had been willing to defend speech on abstract grounds, believing that
unpopular ideas should have their opportunity to compete in the "marketplace of ideas."
But Brandeis had a much more specific reason for defending speech, and the power of his
opinion derives from the connection he made between free speech and the democratic
process. Citizens have an obligation to take part in the governing process, and they can
only fulfill this obligation if they can discuss and criticize governmental policy fully and
without fear. If the government can punish unpopular views, then it cramps freedom, and
in the long run, will strangle democratic processes. Thus, free speech is not an abstract
virtue, but a key element that lies at the heart of a democratic society.
Implicitly, Brandeis here moves far beyond the clear and present danger test, and he
insists on what some have called a "time to answer" test: no danger flowing from speech
can be considered clear and present if there is full opportunity for discussion. While
upholding full and free speech, Brandeis tells legislatures that while they have a right to
curb truly dangerous expression, they must define clearly the nature of that danger. Mere
fear of unpopular ideas will not do.
Justice William O. Douglas believed that had Brandeis lived longer, he would have
abandoned the clear and present danger test; Whitney is in fact the precursor to the
position Douglas and Hugo L. Black would take in the 1950s and 1960s, that freedom of
speech is absolutely protected under the First Amendment. Brandeis does not go that far
here, and his views were ultimately adopted by the Court in Brandenburg v. Ohio (1969).
For further reading: Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in
America (1988); Thomas Emerson, The System of Freedom of Expression (1970);
Vincent Blasi, "The First Amendment and the Ideal of Civil Courage: The Brandeis
Opinion in Whitney v. California," 29 William and Mary Law Review 653 (1988);
Philippa Strum, Brandeis: Beyond Progressivism (1993).
WHITNEY V. CALIFORNIA
Justice Brandeis, joined by Justice Holmes, concurring.
The felony which the statute created is a crime very unlike the old felony of conspiracy or
the old misdemeanor of unlawful assembly. The mere act of assisting in forming a
society for teaching syndicalism, of becoming a member of it, or of assembling with
others for that purpose is given the dynamic quality of crime. There is guilt although the
society may not contemplate immediate promulgation of the doctrine. Thus the accused is
to be punished, not for contempt, incitement or conspiracy, but for a step in preparation,
which, if it threatens the public order at all, does so only remotely. The novelty in the
prohibition introduced is that the statute aims, not at the practice of criminal syndicalism,
nor even directly at the preaching of it, but at association with those who propose to
preach it.
Despite arguments to the contrary which had seemed to me persuasive, it is settled that
the due process clause of the Fourteenth Amendment applies to matters of substantive
law as well as to matters of procedure. Thus all fundamental rights comprised within the
term liberty are protected by the Federal Constitution from invasion by the States. The
right of free speech, the right to teach and the right of assembly are, of course,
fundamental rights. These may not be denied or abridged. But, although the rights of free
speech and assembly are fundamental, they are not in their nature absolute. Their exercise
is subject to restriction, if the particular restriction proposed is required in order to protect
the State from destruction or from serious injury, political, economic or moral. That the
necessity which is essential to a valid restriction does not exist unless speech would
produce, or is intended to produce, a clear and imminent danger of some substantive evil
which the State constitutionally may seek to prevent has been settled...
It is said to be the function of the legislature to determine whether at a particular time and
under the particular circumstances the formation of, or assembly with, a society
organized to advocate criminal syndicalism constitutes a clear and present danger of
substantive evil; and that by enacting the law here in question the legislature of California
determined that question in the affirmative...The legislature must obviously decide, in the
first instance, whether a danger exists which calls for a particular protective measure. But
where a statute is valid only in case certain conditions exist, the enactment of the statute
cannot alone establish the facts which are essential to its validity. Prohibitory legislation
has repeatedly been held invalid because unnecessary, where the denial of liberty
involved was that of engaging in a particular business. The power of the courts to strike
down an offending law is no less when the interests involved are not property rights, but
the fundamental personal rights of free speech and assembly.
This Court has not yet fixed the standard by which to determine when a danger shall be
deemed clear; how remote the danger may be and yet be deemed present; and what
degree of evil shall be deemed sufficiently substantial to justify resort to abridgment of
free speech and assembly as the means of protection. To reach sound conclusions on
these matters, we must bear in mind why a State is, ordinarily, denied the power to
prohibit dissemination of social, economic and political doctrine which a vast majority of
its citizens believes to be false and fraught with evil consequence.
Those who won our independence believed that the final end of the State was to make
men free to develop their faculties; and that in its government the deliberative forces
should prevail over the arbitrary. They valued liberty both as an end and as a means.
They believed liberty to be the secret of happiness and courage to be the secret of liberty.
They believed that freedom to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth; that without free speech and
assembly discussion would be futile; that with them, discussion affords ordinarily
adequate protection against the dissemination of noxious doctrine; that the greatest
menace to freedom is an inert people; that public discussion is a political duty; and that
this should be a fundamental principle of the American government. They recognized the
risks to which all human institutions are subject. But they knew that order cannot be
secured merely through fear of punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies; and that the
fitting remedy for evil counsels is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by law -- the argument of force
in its worst form. Recognizing the occasional tyrannies of governing majorities, they
amended the Constitution so that free speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men
feared witches and burned women. It is the function of speech to free men from the
bondage of irrational fears. To justify suppression of free speech there must be reasonable
ground to fear that serious evil will result if free speech is practiced. There must be
reasonable ground to believe that the danger apprehended is imminent. There must be
reasonable ground to believe that the evil to be prevented is a serious one. Every
denunciation of existing law tends in some measure to increase the probability that there
will be violation of it. Condonation of a breach enhances the probability. Expressions of
approval add to the probability. Propagation of the criminal state of mind by teaching
syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even
advocacy of violation, however reprehensible morally, is not a justification for denying
free speech where the advocacy falls short of incitement and there is nothing to indicate
that the advocacy would be immediately acted on. The wide difference between advocacy
and incitement, between preparation and attempt, between assembling and conspiracy,
must be borne in mind. In order to support a finding of clear and present danger it must
be shown either that immediate serious violence was to be expected or was advocated, or
that the past conduct furnished reason to believe that such advocacy was then
contemplated.
Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. To courageous, selfreliant men, with confidence in the power of free and fearless reasoning applied through
the processes of popular government, no danger flowing from speech can be deemed
clear and present, unless the incidence of the evil apprehended is so imminent that it may
befall before there is opportunity for full discussion. If there be time to expose through
discussion the falsehood andfallacies, to avert the evil by the processes of education, the
remedy to be applied is more speech, not enforced silence. Only an emergency can justify
repression. Such must be the rule if authority is to be reconciled with freedom. Such, in
my opinion, is the command of the Constitution. It is therefore always open to Americans
to challenge a law abridging free speech and assembly by showing that there was no
emergency justifying it.
Moreover, even imminent danger cannot justify resort to prohibition of these functions
essential to effective democracy, unless the evil apprehended is relatively serious.
Prohibition of free speech and assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm to society. A police
measure may be unconstitutional merely because the remedy, although effective as a
means of protection, is unduly harsh or oppressive. Thus, a State might, in the exercise of
its police power, make any trespass upon the land of another a crime, regardless of the
results or of the intent or purpose of the trespasser. It might, also, punish an attempt, a
conspiracy, or an incitement to commit the trespass. But it is hardly conceivable that this
Court would hold constitutional a statute which punished as a felony the mere voluntary
assembly with a society formed to teach that pedestrians had the moral right to cross
unenclosed, unposted, waste lands and to advocate their doing so, even if there was
imminent danger that advocacy would lead to a trespass. The fact that speech is likely to
result in some violence or in destruction of property is not enough to justify its
suppression. There must be the probability of serious injury to the State. Among free men,
the deterrents ordinarily to be applied to prevent crime are education and punishment for
violations of the law, not abridgment of the rights of free speech and assembly.
[The California] legislative declaration satisfies the requirement of the constitution of the
State concerning emergency legislation. [But] it does not preclude enquiry into the
question whether, at the time and under the circumstances, the conditions existed which
are essential to validity under the Federal Constitution. As a statute, even if not void on
its face, may be challenged because invalid as applied, the result of such an inquiry may
depend upon the specific facts of the particular case. Whenever the fundamental rights of
free speech and assembly are alleged to have been invaded, it must remain open to a
defendant to present the issue whether there actually did exist at the time a clear danger;
whether the danger, if any, was imminent, and whether the evil apprehended was one so
substantial as to justify the stringent restriction interposed by the legislature. The
legislative declaration, like the fact that the statute was passed and was sustained by the
highest court of the State, creates merely a rebuttable presumption that these conditions
have been satisfied.
Whether in 1919, when Miss Whitney did the things complained of, there was in
California such clear and present danger of serious evil, might have been made the
important issue in the case. She might have required that the issue be determined either
by the court or the jury. She claimed below that the statute as applied to her violated the
Federal Constitution; but she did not claim that it was void because there was no clear
and present danger of serious evil, nor did she request that the existence of these
conditions of a valid measure thus restricting the rights of free speech and assembly be
passed upon by the court or a jury. On the other hand, there was evidence on which the
court or jury might have found that such danger existed. I am unable to assent to the
suggestion in the opinion of the Court that assembling with a political party, formed to
advocate the desirability of a proletarian revolution by mass action at some date
necessarily far in the future, is not a right within the protection of the Fourteenth
Amendment. In the present case, however, there was other testimony which tended to
establish the existence of a conspiracy, on the part of members of the International
Workers of the World, to commit present serious crimes; and likewise to show that such a
conspiracy would be furthered by the activity of the society of which Miss Whitney was a
member. Under these circumstances the judgment of the state court cannot be disturbed.
Our power of review in this case...is limited not only to the question whether a right
guaranteed by the Federal Constitution was denied, but to the particular claims duly made
below, and denied. We lack here the power occasionally exercised on review of
judgments of lower federal courts to correct in criminal cases vital errors, although the
objection was not taken in the trial court. Because we may not enquire into the errors now
alleged, I concur in affirming the judgment of the state court.
Source: 274 U.S. 357 (1927).
BACKGROUNDER ON THE COURT OPINION ON
THE NEAR V. MINNESOTA CASE
The First Amendment not only protects free speech, but it explicitly includes a guarantee
of freedom of the press. Modern Press Clause jurisprudence begins with this landmark
case, which in many ways reiterated the views of free speech going back through Holmes
and Blackstone to Milton, who had protested against the British system of licensing the
press.
Minnesota had authorized abatement (the prevention of publication), as a public nuisance,
of any "malicious, scandalous or defamatory" publication. The law was specifically
aimed at the Saturday Press, a Minneapolis tabloid that in addition to exploiting rumors
had uncovered some embarrassing facts about local political and business figures. The
state courts gladly "abated" the Press, which then appealed to the United States Supreme
Court claiming that its First Amendment rights had been violated.
The decision is important in two respects. First, it continued the process, begun only a
few years earlier, of extending the protection of the Bill of Rights to cover the states as
well as the federal government. Although the First Amendment says that "Congress shall
make no law ...," the Court in a series of rulings held that the Due Process Clause of the
Fourteenth Amendment "incorporates" the provisions of the Bill of Rights and makes
them applicable to the states as well. In effect, the First Amendment now reads, "Neither
Congress nor any state shall make any law ..."
Second, the Court established, as a central tenet of the Press Clause, that the government
has no power of prior restraint; that is, the government cannot censor the press and
prevent publication. This did not mean that a newspaper could not be held liable for false
and defamatory statements, but that would remain a matter to be proven in court.
Governments could not rule that such materials were libelous and thus prevent
publication.
The decision did not so much create new law as expand and confirm the older notion of
freedom of the press. Chief Justice Hughes quoted approvingly from Blackstone that
liberty of the press "consists in laying no previous restraints upon publication, and not in
freedom from censure for criminal matter when published."
For further reading: Fred W. Friendly, Minnesota Rag (1981); E. Greald, The Press and
the Constitution, 1931-1947 (1948); Harry Kalven, Jr. A Worthy Tradition: Freedom of
Speech in America (1988).
NEAR V. MINNESOTA (1931)
Chief Justice Hughes delivered the opinion of the Court.
If we cut through mere details of procedure, the operation and effect of the statute in
substance is that public authorities may bring the owner or publisher of a newspaper or
periodical before a judge upon a charge of conducting a business of publishing
scandalous and defamatory matter -- in particular that the matter consists of charges
against public officers of official dereliction -- and unless the owner or publisher is able
and disposed to bring competent evidence to satisfy the judge that the charges are true
and published with good motives and for justifiable ends, his newspaper or periodical is
suppressed and further publication is punishable as a contempt. This is of the essence of
censorship.
The question is whether a statute authorizing such proceedings in restraint of publication
is consistent with the conception of the liberty of the press as historically conceived and
guaranteed. In determining the extent of the constitutional protection, it has been
generally, if not universally, considered that it is the chief purpose of the guaranty to
prevent previous restraints upon publication. The struggle in England, directed against
the legislative power of the licenser, resulted in renunciation of the censorship of the
press. The liberty deemed to be established was thus described by Blackstone: "The
liberty of the press is indeed essential to the nature of a free state; but this consists in
laying no previous restraints upon publications, and not in freedom from censure for
criminal matter when published. Every freeman has an undoubted right to lay what
sentiments he pleases before the public; to forbid this, is to destroy the freedom of the
press; but if he publishes what is improper, mischievous or illegal, he must take the
consequence of his own temerity." The criticism upon Blackstone's statement has not
been because immunity from previous restraint upon publication has not been regarded as
deserving of special emphasis, but chiefly because that immunity cannot be deemed to
exhaust the conception of the liberty guaranteed by state and federal constitutions...
The objection has also been made that the principle as to immunity from previous
restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is
undoubtedly true; the protection even as to previous restraint is not absolutely unlimited.
But the limitation has been recognized only in exceptional cases. No one would question
but that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops. On
similar grounds, the primary requirements of decency may be enforced against obscene
publications. The security of the community life may be protected against incitements to
acts of violence and the overthrow by force of orderly government...These limitations are
not applicable here...
The exceptional nature of its limitations places in a strong light the general conception
that the liberty of the press, historically considered and taken up by the Federal
Constitution, has meant, principally although not exclusively, immunity from previous
restraints, or censorship...Public officers, whose character and conduct remain open to
debate and free discussion in the press, find their remedies for false accusations in actions
under libel laws providing for redress and punishment, and not in proceedings to restrain
the publications of newspapers and periodicals. The fact that the liberty of the press may
be abused by miscreant purveyors of scandal does not make any the less necessary the
immunity of the press from previous restraint in dealing with official misconduct.
Subsequent punishment for such abuses as may exist is the appropriate remedy,
consistent with constitutional privilege.
The statute in question cannot be justified by reason of the fact that the publisher is
permitted to show, before injunction issues, that the matter published is true and is
published with good motives and for justifiable ends. If such a statute is valid, it would be
equally permissible for the legislature to provide that at any time the publisher of any
newspaper could be brought before a court, or even an administrative officer (as the
constitutional protection may not be regarded as resting on mere procedural details), and
required to produce proof of the truth of his publication, or of what he intended to publish
and of his motives, or stand enjoined. If this can be done, the legislature may provide the
machinery for determining in the complete exercise of its discretion what are justifiable
ends and restrain publication accordingly. And it would be but a step to a complete
system of censorship. We hold the statute, so far as it authorized the proceedings in this
action, to be infringement of the liberty of the press guaranteed by the Fourteenth
Amendment...
Judgement reversed.
Source: 283 U.S. 697 (1931).
INTRODUCTION TO THE COURT OPINION ON
THE WEST VIRGINIA BOARD OF EDUCATION V.
BARNETTE CASE
There are two clauses regarding religion in the First Amendment. One is the
Establishment Clause, which prohibits the government from establishing any sort of
official religion (see next document); the other is the Free Exercise Clause, which forbids
the government from restricting an individual's religious practices. Free exercise claims
often overlap claims to freedom of expression, and several of the most important religion
cases mixed issues of free speech and free exercise together.
A key element in religion clause jurisprudence is the dichotomy between belief and
action originally enunciated by Chief Justice Morrison Waite in 1879. While the First
Amendment absolutely prohibits government efforts to restrict beliefs, it does not prevent
the state from forbidding practices that threaten public order or safety. In the example
Waite used, if a sect believed in human sacrifice, the government could do nothing to
restrict that belief; but it could, without violating the Free Exercise Clause, bar the actual
sacrifice. While this belief/action analysis remains useful even today, the Court came to
recognize that in some areas belief and action overlapped.
The Jehovah's Witnesses are a relatively small sect in the United States, but they are
responsible for some of the most important cases establishing religious freedom. The
Witnesses claimed a right to proselytize, an action, without state regulation, as essential
to the free exercise of their creed, a belief. In several cases the Court upheld these claims,
but primarily on speech rather than religion clause grounds, yet these decisions are in fact
the basis for modern jurisprudence on the Free Exercise Clause.
Undoubtedly the most famous of the early free exercise cases involved the Witnesses'
refusal to salute the American flag. The sect takes literally the biblical command not to
"bow down to graven images," and considers the flag an icon. In the first case,
Minersville School District v. Gobitis (1940), Justice Felix Frankfurter sustained local
school board requirements that all students participate in the morning flag salute ritual.
Frankfurter rejected the free exercise claim almost summarily, noting that civic
obligations outweighed religious convictions. One should note that Gobitis was decided
with Europe already at war and the United States rearming. Patriotism seemed the highest
value to many, including eight members of the Court; only Justice Harlan Fiske Stone
dissented, charging that the required salute violated freedom of speech and of religion.
The Witnesses refused to compromise and, in spite of enormous public hostility, clung to
their outspoken religious beliefs. But in the growing climate of intense patriotism that
accompanied American entry into the war, the Witnesses suffered considerably for their
beliefs, and there were numerous instances of persecution, including physical assaults on
children. Such a condition could hardly win approval as news began to filter out of
Europe about Hitler's "final solution" to the Jewish problem.
As a result, the Court took another flag salute case, and this time reversed itself. Justice
Jackson, using Holmes's clear and present danger test, found that the Witnesses' refusal to
salute the flag harmed no one, did not violate anyone else's rights and posed no danger to
public order. Probably no other case so clearly caught the intent of the framers of the
First Amendment that religious freedom meant not only the absence of an established
church, but also the right of each individual to worship -- or not to worship -- as he or she
saw fit, as long as it did not interfere with the rights of others. Democracy demanded,
according to Jackson, not merely toleration of the majority of differing beliefs, but full
freedom for the minorities to practice their faiths without fear of the majority.
For further reading: David Manwaring, Render unto Caesar: The Flag Salute Controversy
(1962); Leo Pfeffer, Church, State and Freedom (1967 rev. ed.).
WEST VIRGINIA BOARD OF EDUCATION V. BARNETTE
Justice Jackson delivered the opinion of the Court.
Appellees, citizens of the United States and of West Virginia, brought suit in the United
States District Court for themselves and others similarly situated asking its injunction to
restrain enforcement of these [flag salute] laws and regulations against Jehovah's
Witnesses. The Witnesses are an unincorporated body teaching that the obligation
imposed by law of God is superior to that of laws enacted by temporal government. Their
religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which
says: "Thou shalt not make unto thee any graven image, or any likeness of anything that
is in heaven above, or that is in the earth beneath, or that is in the water under the earth;
thou shalt not bow down thyself to them nor serve them." They consider that the flag is
an "image" within this command. For this reason they refuse to salute it.
Children of this faith have been expelled from school and are threatened with exclusion
for no other cause. Officials threaten to send them to reformatories maintained for
criminally inclined juveniles. Parents of such children have been prosecuted and are
threatened with prosecutions for causing delinquency...
There is no doubt that, in connection with pledges, the flag salute is a form of utterance.
Symbolism is a primitive but effective way of communicating ideas. The use of an
emblem or flag to symbolize some system, idea, institution, or personality, is a short cut
from mind to mind. Causes and nations, political parties, lodges, and ecclesiastical groups
seek to knit the loyalty of their following to a flag or banner, a color or design. The State
announces rank, function, and authority through crowns and maces, uniforms and black
robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical
raiment. Symbols of State often convey political ideas just as religious symbols come to
convey theological ones. Associated with many of these symbols are appropriate gestures
of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets
from a symbol the meaning he puts into it, and what is one man's comfort and inspiration
is another's jest and scorn...
It is also to be noted that the compulsory flag salute and pledge requires affirmation of a
belief and an attitude of mind. It is not clear whether the regulation contemplates that
pupils forego any contrary convictions of their own and become unwilling converts to the
prescribed ceremony or whether it will be acceptable if they simulate assent by words
without belief and by a gesture barren of meaning. It is now a commonplace that
censorship or suppression of expression of opinion is tolerated by our Constitution only
when presents a clear and present danger of action of a kind the State is empowered to
prevent and punish. It would seem that involuntary affirmation could be commanded only
on even more immediate and urgent grounds than silence. But here the power of
compulsion is invoked without any allegation that remaining passive during a flag salute
ritual creates a clear and present danger that would justify an effort even to muffle
expression. To sustain the compulsory flag salute we are required to say that a Bill of
Rights which guards the individual's right to speak his own mind, left it open to public
authorities to compel him to utter what is not in his mind.
Whether the First Amendment to the Constitution will permit officials to order
observance of ritual of this nature does not depend upon whether as a voluntary exercise
we would think it to be good, bad, or merely innocuous. Any credo of nationalism is
likely to include what some disapprove or to omit what others think essential, and to give
off different overtones as it takes on different accents or interpretations. If official power
exists to coerce acceptance of any patriotic creed, what it shall contain cannot be decided
by courts, but must be largely discretionary with the ordaining authority, whose power to
prescribe would no doubt include power to amend. Hence validity of the asserted power
to force an American citizen publicly to profess any statement of belief or to engage in
any ceremony of assent to one, presents questions of power that must be considered
independently of any idea we may have as to the utility of the ceremony in question...
Government of limited power need not be anemic government. Assurance that rights are
secure tends to diminish fear and jealousy of strong government, and by making us feel
safe to live under it makes for its better support. Without promise of limiting Bill of
Rights it is doubtful if our Constitu-tion could have mustered enough strength to enable
its ratification. To enforce those rights today is not to choose weak government over
strong government. It is only to adhere as a means of strength to individual freedom of
mind in preference to officially disciplined uniformity for which history indicates a
disappointing and disastrous end.
The subject now before us exemplifies this principle. Free public education, if faithful to
the ideal of secular instruction and political neutrality, will not be partisan or enemy of
any class, creed, party, or faction. If it is to impose any ideological discipline, however,
each party or denomination must seek to control, or failing that, to weaken the influence
of the educational system. Observance of the limitations of the Constitution will not
weaken government in the field appropriate for its exercise...
The Gobitis opinion reasoned that this is a field "where courts possess no marked and
certainly no controlling competence," that it is committed to the legislatures as well as the
courts to guard cherished liberties and that it is constitutionally appropriate to "fight out
the wise use of legislative authority in the forum of public opinion and before legislative
assemblies rather than to transfer such a contest to the judicial arena," since all the
"effective means of inducing political changes are left free."...
The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities and
officials and to establish them as legal principles to be applied by the courts. One's right
to life, liberty, and property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to vote; they depend on the
outcome of no elections.
In weighing arguments of the parties it is important to distinguish between the due
process clause of the Fourteenth Amendment as an instrument for transmitting the
principles of the First Amendment and those cases in which it is applied for its own sake.
The test of legislation which collides with the Fourteenth Amendment, because it also
collides with the principles of the First, is much more definite than the test when only the
Fourteenth is involved. Much of the vagueness of the due process clause disappears when
the specific prohibitions of the First become its standard. The right of a State to regulate,
for example, a public utility may well include, so far as the due process test is concerned,
power to impose all of the restriction which a legislature may have a "rational basis" for
adopting. But freedoms of speech and of press, of assembly, and of worship may not be
infringed on such slender grounds. They are susceptible of restriction only to prevent
grave and immediate danger to interests which the State may lawfully protect. It is
important to note that while it is the Fourteenth Amendment which bears directly upon
the State it is the more specific limiting principles of the First Amendment that finally
govern this case.
Nor does our duty to apply the Bill of Rights to assertions of official authority depend
upon our possession of marked competence in the field where the invasion of rights
occurs. True, the task of translating the majestic generalities of the Bill of Rights,
conceived as part of the pattern of liberal government in the eighteenth century, into
concrete restraints on officials dealing with the problems of the twentieth century, is one
to disturb self-confidence. These principles grew in soil which also produced a
philosophy that the individual was the center of society, that his liberty was attainable
through mere absence of governmental restraints, and that government should be
entrusted with few controls and only the mildest supervision over men's affairs. We must
transplant these rights to a soil in which the laissez-faire concept or principle of noninterference has withered at least as to economic affairs, and social advancements are
increasingly sought through closer integration of society and through expanded and
strengthened governmental controls. These changed conditions often deprive precedents
of reliability and cast us more than we would choose upon our own judgement. But we
act in these matters not by authority of our competence but by force of our commissions.
We cannot, because of modest estimates of our competence in such specialties as public
education, withhold the judgement that history authenticates as the function of this Court
when liberty is infringed...
Lastly, and this is the very heart of the Gobitis opinion, it reasons that "National unity is
the basis of national security," that the authorities have "the right to select appropriate
means for its attainment," and hence reaches the conclusion that such compulsory
measures toward "national unity" are constitutional...Upon the verity of this assumption
depends our answer in this case.
National unity as an end which officials may foster by persuasion and example is not in
question. The problem is whether under our Constitution compulsion as here employed is
a permissible means for its achievement.
Struggles to coerce uniformity of sentiment in support of some end thought essential to
their time and country have been waged by many good as well as evil men. Nationalism
is a relatively recent phenomenon but at other times and places the ends have been racial
or territorial security, support of a dynasty or regime, and particular plans for saving soul.
As first and moderate methods to attain unity have failed, those bent on its
accomplishment must resort to an ever-increasing severity. As governmental pressure
toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be.
Probably no deeper division of our people could proceed from any provocation than from
finding it necessary to choose what doctrine and whose program public educational
officials shall compel youth to unite in embracing. Ultimate futility of such attempts to
compel coherence is the lesson of every such effort from the Roman drive to stamp out
Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and
dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing
efforts of our present totalitarian enemies. Those who begin coercive elimination of
dissent soon find themselves exterminating dissenters. Compulsory unification of opinion
achieves only the unanimity of the graveyard.
It seems trite but necessary to say that the First Amendment to our Constitution was
designed to avoid these ends by avoiding these beginnings. There is no mysticism in the
American concept of the State or of the nature or origin of its authority. We set up
government by consent of the governed, and the Bill of Rights denies those in power any
legal opportunity to coerce that consent. Authority here is to be controlled by public
opinion, not public opinion by authority.
The case is made difficult not because the principles of its decision are obscure but
because the flag involved is our own. Nevertheless, we apply the limitations of the
Constitution with no fear that freedom to be intellectually and spiritually diverse or even
contrary will disintegrate the social organization. To believe that patriotism will not
flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory
routine is to make an unflattering estimate of the appeal of our institutions to free minds.
We can have intellectual individualism and the rich cultural diversities that we owe to
exceptional minds only at the price of occasional eccentricity and abnormal attitudes.
When they are so harmless to others or to the State as those we deal with here, the price is
not too great. But freedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right to differ as to
things that touch the heart of the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act their faith therein. If there
are any circumstances which permit an exception, they do not now occur to us.
We think the action of the local authorities in compelling the flag salute and pledge
transcends constitutional limitations on their power and invades the sphere of intellect
and spirit which it is the purpose of the First Amendment to our Constitution to reserve
from all official control.
The decision of this Court in Minersville School District v. Gobitis and the holdings of
those few per curiam decisions which preceded and foreshadowed it are overruled, and
the judgement enjoining enforcement of the West Virginia Regulation is Affirmed.
Source: 319 U.S. 624 (1943).
INTRODUCTION TO THE ENGEL V. VITALE
COURT CASE
For many years, a particular ritual marked the beginning of each school day all across
America. Teachers led their students through the Pledge of Allegiance, a short prayer, the
singing of "America" or "The Star-Spangled Banner," and possibly some readings from
the Bible. The choice of ritual varied according to state law, local custom and the
preferences of individual teachers or principals.
In New York, the state Board of Regents had prepared a "non-denominational" prayer for
use in the public schools, trying to avoid anything that might offend one particular
religious group or another. But in one school district a group of parents challenged the
prayer as "contrary to the beliefs, religions, or religious practices of both themselves and
their children." The state's highest court upheld the use of the prayer, on the grounds that
state law did not force any student to join in the prayer over a parent's objections.
But the Supreme Court, in the following case, held the entire idea of a state-mandated or
state-sponsored prayer, no matter how innocuous, as contrary to the spirit and command
of the First Amendment's ban against the establishment of religion. As Justice Black
noted, a prayer by any definition constituted a religious activity, and by promoting prayer,
the state violated the Establishment Clause.
The Engel decision unleashed a firestorm of criticism against the Court that, although it
has abated from time to time, has never died out. There are many people in the United
States who believe that religion should be fostered by the state, and that while no
particular doctrine or church should be established, the state ought to be friendly and
supportive to all religions on an equal basis. In their opinion, school prayer was a natural
and historic tradition in a country that styled itself "one nation under God."
The Court's decision has had its champions as well, and many people believe that the
Court was absolutely right, and that religion is and should remain a private matter. Once
a teacher starts to lead students in prayer, it is difficult for any particular student to object
or to abstain, and thus he or she is forced to pray -- a clear violation of the First
Amendment. The debate continues, and Engel, to both its detractors and supporters, is a
landmark decision in the effort to define what freedom of religion means in a democratic
society.
For further reading: Francis J. Sorauf, The Wall of Separation: The Constitutional Politics
of Church and State (1976); J.H. Laubach, School Prayers: Congress, the Court and the
Public (1969); Leonard W. Levy, The Establishment Clause: Religion and the First
Amendment (1986).
ENGEL V. VITALE
Justice Black delivered the opinion of the Court.
The respondent Board of Education of Union Free School District No. 9, New Hyde Park,
New York, acting in its official capacity under state law, directed the School District's
principal to cause the following prayer to be said aloud by each class in the presence of a
teacher at the beginning of each school day:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing
upon us, our parents, our teachers and our Country.
This daily procedure was adopted on the recommendation of the State Board of Regents,
a governmental agency created by the State Constitution to which the New York
Legislature has granted broad supervisory, executive, and legislative powers over the
State's public school system. These state officials composed the prayer which they
recommended and published as a part of their "Statement on Moral and Spiritual Training
in the Schools," saying: "We believe that this Statement will be subscribed to by all men
and women of good will, and we call upon all of them to aid in giving life to our
program."...
We think that by using its public school system to encourage recitation of the Regents'
prayer, the State of New York has adopted a practice wholly incon-sistent with the
Establishment Clause. There can, of course, be no doubt that New York's program of
daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a
religious activity. It is a solemn avowal of divine faith and supplication for the blessing of
the Almighty. The nature of such a prayer has always been religious, none of the
respondents has denied this and the trial court expressly so found...
The petitioners contend among other things that the state laws requiring or permitting use
of the Regents' prayer must be struck down as a violation of the Establishment Clause
because that prayer was composed by governmental officials as a part of a governmental
program to further religious beliefs. For this reason, petitioners argue, the State's use of
the Regents' prayer in its public school system breaches the constitutional wall of
separation between Church and State. We agree with that contention since we think that
the constitutional prohibition against laws respecting an establishment of religion must at
least mean that in this country it is no part of the business of government to compose
official prayers for any group of the American people to recite as a part of a religious
program carried on by government.
It is a matter of history that this very practice of establishing governmentally composed
prayers for religious services was one of the reasons which caused many of our early
colonists to leave England and seek religious freedom in America. The Book of Common
Prayer, which was created under governmental direction and which was approved by
Acts of Parliament in 1548 and 1549, set out in minute detail the accepted form and
content of prayer and other religious ceremonies to be used in the established, taxsupported Church of England...
Source: 370 U.S. 421 (1962).
INTRODUCTION TO THE COURT OPINION ON
THE NEW YORK TIMES CO. V. UNITED STATES
CASE
In a democracy, there is always a tension between a free press and the government,
between what the government claims ought to be kept confidential and what reporters
believe the public ought to know. Rarely has this conflict been clearer than in the
celebrated Pentagon Papers case.
In 1967 Secretary of Defense Robert S. McNamara ordered a full-scale evaluation of how
the United States became involved in the Vietnam War. A study team of thirty-six
persons took more than a year to compile the report, which ran to forty-seven volumes,
with some 4,000 pages of documentary evidence and 3,000 pages of analysis. Daniel
Ellsberg, a former Defense Department economist who had grown disillusioned with the
war, copied major portions of the study and then turned them over to the press. On June
13, 1971, the New York Times began publishing the papers, and the Nixon
administration immediately sought to stop further publication.
In Near v. Minnesota, Chief Justice Hughes had noted that the rule against prior restraint
would not apply in certain cases. No one would question, Hughes declared, "that a
government might prevent actual obstruction to its recruiting service or the publication of
the sailing days of transports or the number and location of troops." Using this theory, the
Justice Department secured a temporary injunction against the Times. The Washington
Post then picked up publication, and when the administration went to court against that
paper, the Boston Globe began publication. In an unusual move, the Supreme Court
expedited the appeals process, and heard oral argument on June 26, and four days later,
on June 30 -- seventeen days after the Times ran the first installment -- handed down its
decision.
The speed is noteworthy for several reasons, not least of which is the importance that
both the administration and the Court gave to the necessity to decide the issue. The speed
also accounts, at least in part, for the failure of a majority to form around a single opinion.
Instead the Court announced a brief per curiam decision, in which it noted that the
government always had a heavy burden to bear in proving why prior restraint should be
permitted, and it had failed to do so in this case. The various justices then set out their
views of freedom of the press.
The rationale behind the pilfering of the Pentagon documents and then providing copies
to the press had been to inform the public of what Ellsberg charged was double-dealing
and lying by the government regarding the Vietnam War. The people, according this
theory, had a right to know what its government had done. General Maxwell Taylor, who
had been ambassador to South Vietnam during the early stages of the war, condemned
this idea. A citizen's right to know, he declared, is limited "to those things he needs to
know to be a good citizen and discharge his functions, but not to...secrets that damage his
government and indirectly the citizen himself."
Some members of the Court, notably Justice Potter Stewart, did believe in this notion of a
citizen's right to know, and Stewart put forward the theory of the press serving as a
surrogate for the people, ferreting out information for them and securing the material to
which they had a right. Not all members of the Court endorsed this "functional" theory of
the press, but Chief Justice Burger later commented that despite the split vote, the justices
were "actually unanimous." In many ways, this was true. All of the justices did believe in
the basic doctrine of no prior restraint, first set out in the Near case, and with the
exception of Justices Black and Douglas, who took an absolutist stance against any
government censorship of any issue at any time, the entire Court agreed that government
should not censor the press, that no prior restraint was the rule except in very unusual
circumstances.
For further reading: Martin Shapiro, ed., The Pentagon Papers and the Courts ...(1972);
Archibald Cox, The Court and the Constitution (1987); S. J. Ungar, The Paper and the
Papers...(1972).
NEW YORK TIMES CO. V. UNITED STATES
Per Curiam.
We granted certiorari in these cases in which the United States seeks to enjoin the New
York Times and the Washington Post from publishing the contents of a classified study
entitled "History of U.S. Decision-Making Process on Viet Nam Policy."
"Any system of prior restraints of expression comes to this Court bearing a heavy
presumption against its constitutional validity." justification for the enforcement of such
restraint."...The District Court in the New York Times case and the District Court and the
Court of Appeals in the Washington Post case held that the Government had not met that
burden. We agree.
The judgement of the Court of Appeals for the District of Columbia Circuit is therefore
affirmed. The order of the Court of Appeals for the Second Circuit is reversed and the
case is remanded with directions to enter a judgement affirming the judgement of the
District Court. The stays entered June 25, 1971, by the Court are vacated. The mandates
shall issue forthwith.
So ordered.
Justice Black, with whom Justice Douglas joins, concurring.
I adhere to the view that the Government's case against the Washington Post should have
been dismissed and that the injunction against the New York Times should have been
vacated without oral argument when the cases were first presented to this Court. I believe
that every moment's continuance of the injunctions against these newspapers amounts to
a flagrant, indefensible, and continuing violation of the First Amendment... In my view it
is unfortunate that some of my Brethren are apparently willing to hold that the
publication of news may sometimes be enjoined. Such a holding would make a shambles
of the First Amendment...Only a free and unrestrained press can effectively expose
deception in government. To find that the President has "inherent power" to halt the
publication of news by resort to the courts would wipe out the First Amendment. The
word "security" is a broad, vague generality whose contours should not be invoked to
abrogate the fundamental laws embodied in the First Amendment...
Justice Douglas, with whom Justice Black joins, concurring.
[The First Amendment] leaves, in my view, no room for governmental restraint on the
press. There is, moreover, no statute barring the publication by the press of the material
which the Times and Post seek to use... [I]t is apparent that Congress was capable of and
did distinguish between publishing and communication in the various sections of the
Espionage Act.
So any power that the Government possesses must come from its "inherent power." The
power to wage war is "the power to wage war successfully." But the war power stems
from a declaration of war. The Constitution by Article I, Section 8, gives Congress, not
the President, power "to declare War." Nowhere are presidential wars authorized. We
need not decide therefore what leveling effect the war power of Congress might have.
These disclosures may have a serious impact. But that is no basis for sanctioning a
previous restraint on the press...The dominant purpose of the First Amendment was to
prohibit the widespread practice of governmental sup-pression of embarrassing
information. A debate of large proportions goes on in the Nation over our posture in
Vietnam. Open debate and discussion of public issues are vital to our National Health.
The stays in these cases that have been in effect for more than a week constitute a
flouting of the principles of the First Amendment as interpreted in [Near v. Minnesota].
Justice Brennan, concurring.
The error that has pervaded these cases from the outset was the granting of any injunctive
relief whatsoever, interim or otherwise. The entire thrust of the Government's claim
throughout these cases has been that publication of the material sought to be enjoyed
"could," or "might," or "may" prejudice the national interest in various ways. But the
First Amendment tolerates absolutely no prior judicial restraints of the press predicated
upon surmise or conjecture that unto-ward consequences may result. Our cases, it is true,
have indicated that there is a single, extremely narrow class of cases in which the First
Amendment's ban on prior judicial restraint may be overridden. Our cases have thus far
indicated that such cases may arise only when the Nation "is at war"...during which times
"no one would question but that a government might prevent actual obstruction to its
recruiting service or the publication of the sailing dates of transports or the number and
location of troops."...Even if the present world situation were assumed to be tantamount
to a time of war, or if the power of presently available armaments would justify even in
peacetime the suppression of information that would set in motion a nuclear holocaust, in
neither of these actions has the Government presented or even alleged that publication of
items from or based upon the material at issue would cause the happening of an event of
that nature...Until the Government has clearly made out its case, the First Amendment
commands that no injunction may issue.
Justice Stewart, with whom Justice White joins, concurring.
The only effective restraint upon executive policy and power in the areas of national
defense and international affairs may lie in an enlightened citizenry. For this reason, it is
perhaps here that a press that is alert, aware, and free most vitally serves the basic
purpose of the First Amendment. Yet it is elementary that the successful conduct of
international diplomacy and the maintenance of an effective national defense require both
confidentiality and secrecy. I think there can be but one answer to this dilemma, if
dilemma it be. The responsibility must be where the power is. The Executive must have
largely unshared duty to determine and preserve the degree of internal security necessary
to exercise...power successfully. It is the constitutional duty of the Executive -- as a
matter of sovereign prerogative and not as a matter of law as the courts know law -through the promulgation and enforcement of executive regulations to protect the
confidentiality necessary to carry out its responsibilities in the fields of inter-national
relations and national defense. This is not to say that Congress and the courts have no
role to play. Undoubtedly Congress has the power to enact specif-ic and appropriate
criminal laws to protect government property and preserve government secrets...
But in the cases before us we are asked neither to construe specific regulations nor to
apply specific laws. We are asked, instead, to perform a function that the Constitution
gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the
publications by two newspapers of material that the Executive Branch insists should not,
in the national interest, be published. I am convinced that the Executive is correct with
respect to some of the documents involved. But I cannot say that disclosure of any of
them will surely result in direct, immediate, and irreparable damage to our Nation or its
people. That being so, there can under the First Amendment be but one judicial resolution
of the issues before us. I join the judgements of the Court.
Justice White, with whom Justice Stewart joins, concurring.
I concur in today's judgements, but only because of the concededly extraordinary
protection against prior restraints enjoyed by the press under our constitutional system. I
do not say that in no circumstances would the First Amendment permit an injunction
against publishing information about governent plans or operations. Nor, after examining
the materials the Government characterizes as the most sensitive and destructive, can I
deny that revelation of these documents will do substantial damage to public interests.
Indeed, I am confident that their disclosure will have that result. But I nevertheless agree
that the United States has not satisfied the very heavy burden which it must meet to
warrant an injunction against publication in these cases, at least in the absence of express
and appropriately limited congressional authorization for prior restraints in circumstances
such as these...
Justice Marshall, concurring.
The ultimate issue in this case is whether this Court or the Congress has the power to
make law. [I]n some situations it may be that...there is a basis for the invocation of the
equity jurisdiction of this Court as an aid to prevent the publication of material damaging
to "national security," however that term may be defined. It would, however, be utterly
inconsistent with the concept of separation of powers for this Court to use its power of
contempt to prevent behavior that Congress has specifically declined to prohibit. There
would be similar damage to the basic concept of these co-equal branches of Government
if when the [executive] had adequate authority granted by Congress to protect "national
security" it can choose instead to invoke the contempt power of a court to enjoin the
threatened conduct...It is plain that Congress has specifically refused to grant the
authority the Government seeks from this Court to fling itself into every breach perceived
by some Government official...
Justice Harlan, with whom the Chief Justice and Justice Blackmun join, dissenting.
[I] consider that the Court has been almost irresponsibly feverish in dealing with these
cases.
Both the Court of Appeals for the Second Circuit and the Court of Appeals for the
District of Columbia Circuit rendered judgment on June 23. The New York Times'
petition for certiorari, its motion for accelerated consideration thereof, and its application
for interim relief were filed in this Court on June 24, at about 11 A.M. The application of
the United States for interim relief in the Post case was also filed here on June 24, at
about 7:15 P.M. This Court's order setting a hearing before us on June 26 at 11 A.M., a
course which I joined only to avoid the possibility of even more peremptory action by the
Court, was issued less than 24 hours before. The record in the Post case was filed with
the Clerk shortly before 1 P.M. on June 25; the record in the Times case did not arrive
until 7 or 8 o'clock that same night. The briefs of the parties were received less than two
hours before argument on June 26.
[The] frenzied train of events...took place in the name of the presumption against prior
restraints created by the First Amendment. Due regard for the extraordinarily important
and difficult questions involved in these litigations should have led the Court to shun its
precipitate timetable...
These are difficult questions of fact, of law, and of judgement; the potential consequences
of erroneous decision are enormous. The time which has been available to us, to lower
courts, and to the parties has been wholly inadequate for giving these cases the kind of
consideration they deserve. It is a reflection on the stability of the judicial process that
these great issues -- as important as any that have arisen during my time on the Court --
should have been decided under the pressures engendered by the torrent of publicity that
has attended these litigations from their inception.
Forced as I am to reach the merits of these cases, I dissent from the opinion and
judgements of the Court. Within the severe limitations imposed by the time constraints
under which I have been required to operate, I can only state my reasons in telescoped
form. It is plain to me that the scope of the judicial function in passing upon the activities
of the Executive Branch of the Government in the field of foreign affairs is very narrowly
restricted. This view is, I think, dictated by the concept of separation of powers upon
which our constitutional system rests. I agree that in performance of its duty to protect the
values of the First Amendment against political pressures, the judiciary must review the
initial Executive determination to the point of satisfying itself that the subject matter of
the dispute does lie within the proper compass of the President's foreign relations power.
Constitutional considerations forbid "a complete abandonment of judicial control."
Moreover, the judiciary may properly insist that the determination that disclosure of the
subject matter would irreparably impair the national security be made by the head of the
Executive Department concerned -- here the Secretary of State or the Secretary of
Defense -- after actual personal consideration by that officer. But in my judgement the
judiciary may not properly go beyond these two inquiries and redetermine for itself the
probable impact of disclosure on the national security...
Even if there is some room for the judiciary to override the executive determination, it is
plain that the scope of review must be exceedingly narrow...[Pending] further hearings in
each case conducted under the appropriate ground rules, I would continue the restraints
on publication. I cannot believe that the doctrine prohibiting prior restraints reaches to the
point of preventing courts from maintaining the status quo long enough to act responsibly
in matters of such national importance as those involved here.
Source: 403 U.S. 713 (1971).
PART VIII: FACING THE WORLD
When the first European settlers came to New England, they deliberately set out to create
a new and more moral society than the one they had left behind. This new society was to
be "a city upon a hill," and a beacon to all mankind. Arrogant as that theme may sound, it
has been a constant refrain through much of American history. The men who signed the
Declaration of Independence saw their rebellion not as a simple matter of wanting to
exchange one form of government for another, but of standing up, in the sight of the
world, for certain immutable principles of liberty and democracy. A little over a dozen
years later, many of these same men cheered the French Revolution as a candle lit by
their own flame. And in the midst of a great civil war, Abraham Lincoln called the
American form of government "mankind's last, best hope."
There are some who see American diplomacy as little more than blending together
democratic idealism and a realistic concern for national interest. The American goals of
liberty, democracy and free enterprise are, in their eyes, most worthy goals which other
nations ought to be encouraged to emulate. American wars, in this mindset, have been
fought for noble purposes. And there is no question but that Americans have been most
comfortable when foreign policy has led to war if they could honestly believe that they
were fighting for justice and democratic ideals.
A second school of thought, shared by laypersons and scholars alike, labels itself as more
realistic. This group believes that too often in its past, the United States has been naive in
its foreign policy, and because they do enjoy a democratic society, Americans tend to
oscillate between a policy of isolation designed to insulate the country from evil foreign
influences and meaningless foreign wars, and a policy of militant internationalism
designed to make other nations over into their own image.
The truth is somewhere in between, but probably closer to the "realist" point of view.
There is no question but that a more hardheaded analysis of American interests might
have led to less belligerency and less involvement in some overseas adventures. But it is
also true that American ideals are not simple abstractions, but do in fact play a key role in
determining American policy.
The United States was blessed for well over a century after gaining its independence by
its ability to avoid entangling itself in foreign affairs. Given the simple modes of
transportation and communication available at the time, the Atlantic and Pacific oceans
served as great natural barriers to insulate the country from the rest of the world. This is
just what the founding generation wanted, and at least in part the purchase of the great
Louisiana territory from France in 1803 was designed to give Americans sufficient room
to expand for generations. When European nations lost additional colonies in the New
World, the United States was strong enough to tell them that the Americas were no longer
subject to European designs.
But the world changed, and the United States, slowly and reluctantly, had to change as
well. Against its wishes, the nation was drawn into two world wars and then, as can be
seen in Part IX, it became entangled in a forty-year Cold War as well. Whether one
wishes to consider it naivete or not, the articulation of American foreign policy aims in
terms of ideals was important, not only to the people at home, but to nations and their
citizens overseas. Just as the Declaration of Independence took on meanings far beyond
what its drafters may have intended, so Wilson's vision of a world order as articulated in
the Fourteen Points, Franklin Roosevelt's notion of mutual security and the Atlantic
Charter and Jimmy Carter's belief in the need for international decency also took on
meanings that far transcended their immediate purpose.
Cynics may complain that these high-sounding phrases meant little, that all they did was
to cover up base motives of imperialism and expansionism. But words are important, and
statements such as these regarding foreign policy help to define a nation's character as
much as do noble declarations of internal policies.
For further reading: Gabriel Kolko, The Roots of American Foreign Policy (1969);
Thomas A. Bailey, A Diplomatic History of the American People (1980 ed.); Thomas G.
Paterson, J. Garry Clifford, and Kenneth J. Hagan, American Foreign Policy: A History
(1983 ed.); and Jerald A. Combs, The History of American Foreign Policy (1986).
FAREWELL ADDRESS (1796)
George Washington
George Washington had been the obvious choice to be the first president of the United
States, and indeed, many people had supported ratification of the Constitution on the
assumption that Washington would be the head of the new government. By all measures,
Washington proved himself a capable, even a great, president, helping to shape the new
government and leading the country skillfully through several crises, both foreign and
domestic.
Washington, like many of his contemporaries, did not understand or believe in political
parties, and saw them as fractious agencies subversive of domestic tranquility. When
political parties began forming during his administration, and in direct response to some
of his policies, he failed to comprehend that parties would be the chief device through
which the American people would debate and resolve major public issues. It was his fear
of what parties would do to the nation that led Washington to draft his Farewell Address.
The two parties that developed in the early 1790s were the Federalists, who supported the
economic and foreign policies of the Washington administration, and the Jeffersonian
Republicans, who in large measure opposed them. The Federalists backed Secretary of
the Treasury Alexander Hamilton's plan for a central bank and a tariff and tax policy that
would promote domestic manufacturing; the Jeffersonians opposed the strong
government inherent in the Hamiltonian plan, and favored farmers as opposed to
manufacturers. In foreign affairs, both sides wanted the United States to remain neutral in
the growing controversies between Great Britain and France, but the Federalists favored
the English and the Jeffersonians the French. The Address derived at least in part from
Washington's fear that party factionalism would drag the United States into this fray.
Two-thirds of the Address is devoted to domestic matters and the rise of political parties,
and Washington set out his vision of what would make the United States a truly great
nation. He called for men to put aside party and unite for the common good, an
"American character" wholly free of foreign attachments. The United States must
concentrate only on American interests, and while the country ought to be friendly and
open its commerce to all nations, it should avoid becoming involved in foreign wars.
Contrary to some opinion, Washington did not call for isolation, only the avoidance of
entangling alliances. While he called for maintenance of the treaty with France signed
during the American Revolution, the problems created by that treaty ought to be clear.
The United States must "act for ourselves and not for others."
The Address quickly entered the realm of revealed truth. It was for decades read annually
in Congress; it was printed in children's primers, engraved on watches and woven into
tapestries. Many Americans, especially in subsequent generations, accepted Washington's
advice as gospel, and in any debate between neutrality and involvement in foreign issues
would invoke the message as dispositive of all questions. Not until 1949, in fact, would
the United States again sign a treaty of alliance with a foreign nation.
For further reading: Burton I. Kaufman, ed., Washington's Farewell Address: The View
from the 20th Century (1969); Paul A. Varg, Foreign Policies of the Founding Fathers
(1963); Alexander De Conde, Entangling Alliances (1958).
FAREWELL ADDRESS
Friends and Fellow-Citizens:
The period for a new election of a citizen to administer the Executive Government of the
United States being not far distant, and the time actually arrived when your thoughts must
be employed in designating the person who is to be clothed with that important trust, it
appears to me proper, especially as it may conduce to a more distinct expression of the
public voice, that I should now apprise you of the resolution I have formed to decline
being considered among the number of those out of whom a choice is to be made....
The impressions with which I first undertook the arduous trust were explained on the
proper occasion. In the discharge of this trust I will only say that I have, with good
intentions, contributed toward the organization and administration of the Government the
best exertions of which a very fallible judgment was capable. Not unconscious in the
outset of the inferiority of my qualifications, experience in my own eyes, perhaps still
more in the eyes of others, has strengthened the motives to diffidence of myself; and
every day the increasing weight of years admonishes me more and more that the shade of
retirement is as necessary to me as it will be welcome. Satisfied that if any circumstances
have given peculiar value to my services they were temporary, I have the consolation to
believe that, while choice and prudence invite me to quit the political scene, patriotism
does not forbid it....
Here, perhaps, I ought to stop. But a solicitude for your welfare which can not end with
my life, and the apprehension of danger natural to that solicitude, urge me on an occasion
like the present to offer to your solemn contemplation and to recommend to your frequent
review some sentiments which are the result of much reflection, of no inconsiderable
observation, and which appear to me all important to permanency of your felicity as a
people.... Interwoven as is the love of liberty with every ligament of your hearts, no
recommendation of mine is necessary to fortify or confirm the attachment.
The unity of government which constitutes you one people is also now dear to you. It is
justly so, for it is a main pillar in the edifice of your real independence, the support of
your tranquility at home, your peace abroad, of your safety, of your prosperity, of that
very liberty which you so highly prize. But as it is easy to foresee that from different
causes and from different quarters much pains will be taken, many artifices employed, to
weaken in your minds the conviction of this truth, as this is the point in your political
fortress against which the batteries of internal and external enemies will be most
constantly and actively (though often covertly and insidiously) directed, it is of infinite
moment that you should properly estimate the immense value of your national union to
your collective and individual happiness; that you should cherish a cordial, habitual, and
immovable attachment to it; accustoming yourselves to think and speak of it as of the
palladium of your political safety and prosperity; watching for its preservation with
jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in
any event be abandoned, and indignantly frowning upon the first dawning of every
attempt to alienate any portion of our country from the rest or to enfeeble the sacred ties
which now link together the various parts.
For this you have every inducement of sympathy and interest. Citizens by birth or choice
of a common country, that country has a right to concentrate your affections. The name
of American, which belongs to you in your national capacity, must always exalt the just
pride of patriotism more than any appellation derived from local discriminations. With
slight shades of difference, you have the same religion, manners, habits, and political
principles. You have in a common cause fought and triumphed together. The
independence and liberty you possess are the work of joint councils and joint efforts, of
common dangers, sufferings, and successes.
But these considerations, however powerfully they address themselves to your sensibility,
are greatly outweighed by those which apply more immediately to your interest. Here
every portion of our country finds the most commanding motives for carefully guarding
and preserving the union of the whole.
The North, in an unrestrained intercourse with the South, protected by the equal laws of a
common government, finds in the productions of the latter great additional resources of
maritime and commercial enterprise and precious materials of manufacturing industry.
The South, in the same intercourse, benefiting by the same agency of the North, sees its
agriculture grow and its commerce expand. Turning partly into its own channels the
seamen of the North, it finds its particular navigation invigorated; and while it contributes
in different ways to nourish and increase the general mass of the national navigation, it
looks forward to the protection of a maritime strength to which itself is unequally adapted.
The East, in a like intercourse with the West, already finds, and in the progressive
improvement of interior communications by land and water will more and more find, a
valuable vent for the commodities which it brings from abroad or manufactures at home.
The West derives from the East supplies requisite to its growth and comfort, and what is
perhaps of still greater consequence, it must of necessity owe the secure enjoyment of
indispensable outlets for its own productions to the weight, influence, and the future
maritime strength of the Atlantic side of the Union, directed by an indissoluble
community of interest as one nation. Any other tenure by which the West can hold this
essential advantage, whether derived from its own separate strength or from an apostate
and unnatural connection with any foreign power, must be intrinsically precarious.
While, then, every part of our country thus feels an immediate and particular interest in
union, all the parts combined cannot fail to find in the united mass of means and efforts
greater strength, greater resource, proportionably greater security from external danger, a
less frequent interruption of their peace by foreign nations, and what is of inestimable
value, they must derive from union an exemption from those broils and wars between
themselves which so frequently afflict neighboring countries not tied together by the
same governments, which their own rivalships alone would be sufficient to produce, but
which opposite foreign alliances, attachments, and intrigues would stimulate and embitter.
Hence, likewise, they will avoid the necessity of those overgrown military establishments
which, under any form of government, are inauspicious to liberty, and which are to be
regarded as particularly hostile to republican liberty. In this sense it is that your union
ought to be considered as a main prop of your liberty, and that the love of the one ought
to endear to you the preservation of the other....
Is there a doubt whether a common government can embrace so large a sphere? Let
experience solve it. To listen to mere speculation in such a case were criminal. It is well
worth a fair and full experiment. With such powerful and obvious motives to union
affecting all parts of our country, while experience shall not have demonstrated its
impracticability, there will always be reason to distrust the patriotism of those who in any
quarter may endeavor to weaken its bands.
In contemplating the causes which may disturb our union it occurs as matter of serious
concern that any ground should have been furnished for characterizing parties by
geographical discriminations--Northern and Southern, Atlantic and Western -- whence
designing men may endeavor to excite a belief that there is a real difference of local
interests and views. One of the expedients of party to acquire influence within particular
districts is to misrepresent the opinions and aims of other districts. You can not shield
yourselves too much against the jealousies and heartburnings which spring from these
misrepresentations; they tend to render alien to each other those who ought to be bound
together by fraternal affection....
To the efficacy and permanency of your union a government for the whole is
indispensable. No alliances, however strict, between the parts can be an adequate
substitute. They must inevitably experience the infractions and interruptions which all
alliances in all times have experienced. Sensible of this momentous truth, you have
improved upon your first essay by the adoption of a Constitution of Government better
calculated than your former for an intimate union and for the efficacious management of
your common concerns. This Government, the offspring of our own choice, uninfluenced
and unawed, adopted upon full investigation and mature deliberation, completely free in
its principles, in the distribution of its powers, uniting security with energy, and
containing within itself a provision for its own amendment, has a just claim to your
confidence and your support. Respect for its authority, compliance with its laws,
acquiescence in its measures, are duties enjoined by the fundamental maxims of true
liberty. The basis of our political systems is the right of the people to make and to alter
their constitutions of government. But the constitution which at any time exists till
changed by an explicit and authentic act of the whole people is sacredly obligatory upon
all. The very idea of the power and the right of the people to establish government
presupposes the duty of every individual to obey the established government....
Toward the preservation of your Government and the permanency of your present happy
state, it is requisite not only that you steadily discountenance irregular oppositions to its
acknowledged authority, but also that you resist with care the spirit of innovation upon its
principles, however specious the pretexts. One method of assault may be to effect in the
forms of the Constitution alterations which will impair the energy of the system, and thus
to undermine what can not be directly overthrown. In all the changes to which you may
be invited remember that time and habit are at least as necessary to fix the true character
of governments as of other human institutions; that experience is the surest standard by
which to test the real tendency of the existing constitution of a country; that facility in
changes upon the credit of mere hypothesis and opinion exposes to perpetual change,
from the endless variety of hypothesis and opinion; and remember especially that for the
efficient management of your common interests in a country so extensive as ours a
government of as much vigor as is consistent with the perfect security of liberty is
indispensable. Liberty itself will find in such a government, with powers properly
distributed and adjusted, its surest guardian. It is, indeed, little else than a name where the
government is too feeble to withstand the enterprises of faction, to con-fine each member
of the society within the limits prescribed by the laws, and to maintain all in the secure
and tranquil enjoyment of the rights of person and property.
I have already intimated to you the danger of parties in the State, with particular reference
to the founding of them on geographical discriminations. Let me now take a more
comprehensive view, and warn you in the most solemn manner against the baneful effects
of the spirit of party generally.
This spirit, unfortunately, is inseparable from our nature, having its root in the strongest
passions of the human mind. It exists under different shapes in all governments, more or
less stifled, controlled, or repressed; but in those of the popular form it is seen in its
greatest rankness and is truly their worst enemy....
It serves always to distract the public councils and enfeeble the public administration. It
agitates the community with ill-founded jealousies and false alarms; kindles the
animosity of one part against another; foments occasionally riot and insurrection. It opens
the door to foreign influence and corruption, which finds a facilitated access to the
government itself through the channels of party passion. Thus the policy and the will of
one country are subjected to the policy and will of another.
There is an opinion that parties in free countries are useful checks upon the
administration of the government, and serve to keep alive the spirit of liberty. This within
certain limits is probably true; and in governments of a monarchical cast patriotism may
look with indulgence, if not with favor, upon the spirit of party. But in those of the
popular character, in governments purely elective, it is a spirit not to be encouraged.
From their natural tendency it is certain there will always be enough of that spirit for
every salutary purpose; and there being constant danger of excess, the effort ought to be
by force of public opinion to mitigate and assuage it. A fire not to be quenched, it
demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming,
it should consume.
It is important, likewise, that the habits of thinking in a free country should inspire
caution in those intrusted with its administration to confine themselves within their
respective constitutional spheres, avoiding in the exercise of the powers of one
department to encroach upon another. The spirit of encroachment tends to consolidate the
powers of all the departments in one, and thus to create, whatever the form of
government, a real despotism.... If in the opinion of the people the distribution or
modification of the constitutional powers be in any particular wrong, let it be corrected
by an amendment in the way which the Constitution designates. But let there be no
change by usurpation; for though this in one instance may be the instrument of good, it is
the customary weapon by which free governments are destroyed. The precedent must
always greatly overbalance in permanent evil any partial or transient benefit which the
use can at any time yield.
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. In proportion as the structure of a government
gives force to public opinion, it is essential that public opinion should be enlightened.
As a very important source of strength and security, cherish public credit. One method of
preserving it is to use it as sparingly as possible, avoiding occasions of expense by
cultivating peace, but remembering also that timely disbursements to prepare for danger
frequently prevent much greater disbursements to repel it; avoiding likewise the
accumulation of debt, not only by shunning occasions of expense, but by vigorous
exertions in time of peace to discharge the debts which unavoidable wars have
occasioned, not ungenerously throwing upon posterity the burthen which we ourselves
ought to bear....
Observe good faith and justice toward all nations. Cultivate peace and harmony with all.
Religion and morality enjoin this conduct. And can it be that good policy does not
equally enjoin it? It will be worthy of a free, enlightened, and at no distant period a great
nation to give to mankind the magnanimous and too novel example of a people always
guided by an exalted justice and benevolence. Who can doubt that in the course of time
and things the fruits of such a plan would richly repay any temporary advantages which
might be lost by a steady adherence to it? Can it be that Providence has not connected the
permanent felicity of a nation with its virtue? The experiment, at least, is recommended
by every sentiment which ennobles human nature. Alas! is it rendered impossible by its
vices?
In the execution of such a plan nothing is more essential than that permanent, inveterate
antipathies against particular nations and passionate attachments for others should be
excluded, and that in place of them just and amicable feelings toward all should be
cultivated. The nation which indulges toward another an habitual hatred or an habitual
fondness is in some degree a slave. It is a slave to its animosity or to its affection, either
of which is sufficient to lead it astray from its duty and its interest. Antipathy in one
nation against another disposes each more readily to offer insult and injury, to lay hold of
slight causes of umbrage, and to be haughty and intractable when accidental or trifling
occasions of dispute occur.
So, likewise, a passionate attachment of one nation for another produces a variety of evils.
Sympathy for the favorite nation, facilitating the illusion of an imaginary common
interest in cases where no real common interest exists, and infusing into one the enmities
of the other, betrays the former into a participation in the quarrels and wars of the latter
without adequate inducement or justification. It leads also to concessions to the favorite
nation of privileges denied to others, which is apt doubly to injure the nation making the
concessions by unnecessarily parting with what ought to have been retained, and by
exciting jealousy, ill will, and a disposition to retaliate in the parties from whom equal
privileges are withheld; and it gives to ambitious, corrupted, or deluded citizens (who
devote themselves to the favorite nation) facility to betray or sacrifice the interests of
their own country without odium, sometimes even with popularity, gilding with the
appearances of a virtuous sense of obligation, a commendable deference for public
opinion, or a laudable zeal for public good the base or foolish compliances of ambition,
corruption, or infatuation....
Against the insidious wiles of foreign influence (I conjure you to believe me, fellowcitizens) the jealousy of a free people ought to be constantly awake, since history and
experience prove that foreign influence is one of the most baneful foes of republican
government. But that jealousy, to be useful, must be impartial, else it becomes the
instrument of the very influence to be avoided, instead of a defense against it. Excessive
partiality for one foreign nation and excessive dislike of another cause those whom they
actuate to see danger only on one side, and serve to veil and even second the arts of
influence on the other. Real patriots who may resist the intrigues of the favorite are liable
to become suspected and odious, while its tools and dupes usurp the applause and
confidence of the people to surrender their interests.
The great rule of conduct for us in regard to foreign nations is, in extending our
commercial relations to have with them as little political connection as possible. So far as
we have already formed engagements let them be fulfilled with perfect good faith. Here
let us stop.
Europe has a set of primary interests which to us have none or a very remote relation.
Hence she must be engaged in frequent controversies, the causes of which are essentially
foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves
by artificial ties in the ordinary vicissitudes of her politics or the ordinary combinations
and collisions of her friendships or enmities.
Our detached and distant situation invites and enables us to pursue a different course. If
we remain one people, under an efficient government, the period is not far off when we
may defy material injury from external annoyance; when we may take such an attitude as
will cause the neutrality we may at any time resolve upon to be scrupulously respected;
when belligerent nations, under the impossibility of making acquisitions upon us, will not
lightly hazard the giving us provocation; when we may choose peace or war, as our
interest, guided by justice, shall counsel.
Why forego the advantages of so peculiar a situation? Why quit our own to stand upon
foreign ground? Why, by interweaving our destiny with that of any part of Europe,
entangle our peace and prosperity in the toils of European ambition, rivalship, interest,
humor, or caprice?
It is our true policy to steer clear of permanent alliances with any portion of the foreign
world, so far, I mean, as we are now at liberty to do it, for let me not be understood as
capable of patronizing infidelity to existing engagements. I hold the maxim no less
applicable to public than to private affairs that honesty is always the best policy. I repeat,
therefore, let those engagements be observed in their genuine sense. But in my opinion it
is unnecessary and would be unwise to extend them.
Taking care always to keep ourselves by suitable establishments on a respectable
defensive posture, we may safely trust to temporary alliances for extraordinary
emergencies.
Harmony, liberal intercourse with all nations are recommended by policy, humanity, and
interest. But even our commercial policy should hold an equal and impartial hand, neither
seeking nor granting exclusive favors or preferences; consulting the natural course of
things; diffusing and diversifying by gentle means the streams of commerce, but forcing
nothing; establishing with powers so disposed, in order to give trade a stable course, to
define the rights of our merchants, and to enable the Government to support them,
conventional rules of intercourse, the best that present circumstances and mutual opinion
will permit, but temporary and liable to be from time to time abandoned or varied as
experience and circumstances shall dictate; constantly keeping in view that it is folly in
one nation to look for disinterested favors from another; that it must pay with a portion of
its independence for whatever it may accept under that character; that by such acceptance
it may place itself in the condition of having given equivalents for nominal favors, and
yet of being reproached with ingratitude for not giving more. There can be no greater
error than to expect or calculate upon real favors from nation to nation. It is an illusion
which experience must cure, which a just pride ought to discard....
Though in reviewing the incidents of my Administration I am unconscious of intentional
error, I am nevertheless too sensible of my defects not to think it probable that I may have
committed many errors. Whatever they may be, I fervently beseech the Almighty to avert
or mitigate the evils to which they may tend. I shall also carry with me the hope that my
country will never cease to view them with indulgence, and that, after forty-five years of
my life dedicated to its service with an upright zeal, the faults of incompetent abilities
will be consigned to oblivion, as myself must soon be to the mansions of rest.
Relying on its kindness in this as in other things, and actuated by that fervent love toward
it which is so natural to a man who views in it the native soil of himself and his
progenitors for several generations, I anticipate with pleasing expectation that retreat in
which I promise myself to realize without alloy the sweet enjoyment of partaking in the
midst of my fellow-citizens the benign influence of good laws under a free government -the ever-favorite object of my heart, and the happy reward, as I trust, of our mutual cares,
labors, and dangers.
Source: J.D. Richardson, ed., Compilation of Messages and Papers of the Presidents,
vol.1 (1907), 213.
THE MONROE DOCTRINE (1823)
The end of the Napoleonic Wars in 1815 marked the breakup of the Spanish empire in the
New World. Between 1815 and 1822 Jose de San Martin led Argentina to independence,
while Bernardo O'Higgins in Chile and Simon Bolivar in Venezuela guided their
countries out of colonialism. The new republics sought -- and expected -- recognition by
the United States, and many Americans endorsed that idea.
But President James Monroe and his secretary of state, John Quincy Adams, were not
willing to risk war for nations they did not know would survive. From their point of view,
as long as the other European powers did not intervene, the government of the United
States could just let Spain and her rebellious colonies fight it out.
Great Britain was torn between monarchical principle and a desire for new markets;
South America as a whole constituted, at the time, a much larger market for English
goods than the United States. When Russia and France proposed that England join in
helping Spain regain her New World colonies, Great Britain vetoed the idea.
The United States was also negotiating with Spain to purchase the Floridas, and once that
treaty was ratified, the Monroe administration began to extend recognition to the new
Latin American republics -- Argentina, Chile, Peru, Colombia and Mexico were all
recognized in 1822.
In 1823, France invited Spain to restore the Bourbon power, and there was talk of France
and Spain warring upon the new republics with the backing of the Holy Alliance (Russia,
Prussia and Austria). This news appalled the British government -- all the work of Wolfe,
Chatham and other eighteenth-century British statesmen to get France out of the New
World would be undone, and France would again be a power in the Americas.
George Canning, the British foreign minister, proposed that the United States and Great
Britain join to warn off France and Spain from intervention. Both Jefferson and Madison
urged Monroe to accept the offer, but John Quincy Adams was more suspicious. Adams
also was quite concerned about Russia's efforts to extend its influence down the Pacific
coast from Alaska south to California, then owned by Mexico.
At the Cabinet meeting of November 7, 1823, Adams argued against Canning's offer, and
declared, "It would be more candid, as well as more dignified, to avow our principles
explicitly to Russia and France, than to come in as a cockboat in the wake of the British
man-of-war."
He argued and finally won over the Cabinet to an independent policy. In Monroe's
message to Congress on December 2, 1823, he delivered what we have always called the
Monroe Doctrine, although in truth it should have been called the Adams Doctrine.
Essentially, the United States was informing the powers of the Old World that the
American continents were no longer open to European colonization, and that any effort to
extend European political influence into the New World would be considered by the
United States "as dangerous to our peace and safety." The United States would not
interfere in European wars or internal affairs, and expected Europe to stay out of
American affairs.
Although it would take decades to coalesce into an identifiable policy, John Quincy
Adams did raise a standard of an independent American foreign policy so strongly that
future administrations could not ignore it. One should note, however, that the policy
succeeded because it met British interests as well as American, and for the next 100 years
was secured by the backing of the British fleet.
For further reading: Dexter Perkins, The Monroe Doctrine, 1823-1826 (1927); Samuel
Flagg Bemis, John Quincy Adams and the Foundations of American Foreign Policy
(1949); Ernest R. May, The Making of the Monroe Doctrine (1975).
THE MONROE DOCTRINE
... At the proposal of the Russian Imperial Government, made through the minister of the
Emperor residing here, a full power and instructions have been transmitted to the minister
of the United States at St. Petersburg to arrange by amicable negotiation the respective
rights and interests of the two nations on the northwest coast of this continent. A similar
proposal had been made by His Imperial Majesty to the Government of Great Britain,
which has likewise been acceded to. The Government of the United States has been
desirous by this friendly proceeding of manifesting the great value which they have
invariably attached to the friendship of the Emperor and their solicitude to cultivate the
best understanding with his Government. In the discussions to which this interest has
given rise and in the arrangements by which they may terminate the occasion has been
judged proper for asserting, as a principle in which the rights and interests of the United
States are involved, that the American continents, by the free and independent condition
which they have assumed and maintain, are henceforth not to be considered as subjects
for future colonization by any European powers....
It was stated at the commencement of the last session that a great effort was then making
in Spain and Portugal to improve the condition of the people of those countries, and that
it appeared to be conducted with extraordinary moderation. It need scarcely be remarked
that the result has been so far very different from what was then anticipated. Of events in
that quarter of the globe, with which we have so much intercourse and from which we
derive our origin, we have always been anxious and interested spectators. The citizens of
the United States cherish sentiments the most friendly in favor of the liberty and
happiness of their fellowmen on that side of the Atlantic. In the wars of the European
powers in matters relating to themselves we have never taken any part, nor does it
comport with our policy so to do. It is only when our rights are invaded or seriously
menaced that we resent injuries or make preparation for our defense. With the
movements in this hemisphere we are of necessity more immediately connected, and by
causes which must be obvious to all enlightened and impartial observers. The political
system of the allied powers is essentially different in this respect from that of America.
This difference proceeds from that which exists in their respective Governments; and to
the defense of our own, which has been achieved by the loss of so much blood and
treasure, and matured by the wisdom of their most enlightened citizens, and under which
we have enjoyed unexampled felicity, this whole nation is devoted. We owe it, therefore,
to candor and to the amicable relations existing between the United States and those
powers to declare that we should consider any attempt on their part to extend their system
to any portion of this hemisphere as dangerous to our peace and safety. With the existing
colonies or dependencies of any European power we have not interfered and shall not
interfere. But with the Governments who have declared their independence and
maintained it, and whose independence we have, on great consideration and on just
principles, acknowledged, we could not view any interposition for the purpose of
oppressing them, or controlling in any other manner their destiny, by any European
power in any other light than as the manifestation of an unfriendly disposition toward the
United States. In the war between those new Governments and Spain we declared our
neutrality at the time of their recognition, and to this we have adhered, and shall continue
to adhere, provided no change shall occur which, in the judgment of the competent
authorities of this Government, shall make a corresponding change on the part of the
United States indispensable to their security.
The late events in Spain and Portugal show that Europe is still unsettled. Of this
important fact no stronger proof can be adduced than that the allied powers should have
thought it proper, on any principle satisfactory to themselves, to have interposed by force
in the internal concerns of Spain. To what extent such interposition may be carried, on
the same principle, is a question in which all independent powers whose governments
differ from theirs are interested, even those most remote, and surely none more so than
the United States. Our policy in regard to Europe, which was adopted at an early stage of
the wars which have so long agitated that quarter of the globe, nevertheless remains the
same, which is, not to interfere in the internal concerns of any of its powers; to consider
the government de facto as the legitimate government for us; to cultivate friendly
relations with it, and to preserve those relations by a frank, firm, and manly policy,
meeting in all instances the just claims of every power, submitting to injuries from none.
But in regard to those continents circumstances are eminently and conspicuously
different. It is impossible that the allied powers should extend their political system to
any portion of either continent without endangering our peace and happiness; nor can
anyone believe that our southern brethren, if left to themselves, would adopt it of their
own accord. It is equally impossible, therefore, that we should behold such interposition
in any form with indifference. If we look to the comparative strength and resources of
Spain and those new Governments, and their distance from each other, it must be obvious
that she can never subdue them. It is still the true policy of the United States to leave the
parties to themselves, in the hope that other powers will pursue the same course....
Source: J.D. Richardson, ed., Compilation of the Messages and Papers of the Presidents,
vol. 2 (1907), 287.
FOURTEEN POINTS SPEECH (1918)
Woodrow Wilson
The United States was a reluctant belligerent in the Great War, and the Wilson
administration did its best to remain neutral. Finally, however, in response to entreaties
from the Allies and a renewed German U-boat campaign, the United States declared war
on the Central Powers in April 1917.
The European combatants had been preparing for war for several years, and a complex
web of secret agreements tied various nations together; both the Allies and the Central
Powers had aspirations of seizing control of their enemies' empires. The United States,
however, had not been a party to any of those agreements, and President Woodrow
Wilson desperately sought a basis for ending the war that would allow both sides to
participate fully in building a lasting peace. Both be- fore and after American entry into
the conflict, Wilson called on the belligerents to state their war aims. But since many of
these aims involved territorial ambitions, both sides refused.
Finally Wilson lost patience, and on January 8, 1918, went before Congress to enunciate
what he considered the basic premises of a just and lasting peace. The Fourteen Points, as
the program came to be called, consisted of certain basic principles, such as freedom of
the seas and open covenants, a variety of geographic arrangements carrying out the
principle of self-determination, and above all, a League of Nations that would enforce the
peace.
The Fourteen Points are important for several reasons. First of all, they translated many
of the principles of American domestic reform, known as Progressivism, into foreign
policy. Notions of free trade, open agreements, democracy and self-determination were
mere variants of domestic programs that reformers had been supporting for two decades.
Second, the Fourteen Points constituted the only statement by any of the belligerents of
their war aims. They thus became the basis for German surrender, and the only criteria by
which to judge the peace treaty.
Most important, where many countries believed that only self-interest should guide
foreign policy, in the Fourteen Points Wilson argued that morality and ethics had to be
the basis for the foreign policy of a democratic society. While subsequent American
governments have not always shared that belief, many American presidents have agreed
with the Wilsonian belief in morality as a key ingredient in foreign as well as domestic
policy.
For further reading: Arthur S. Link, Wilson the Diplomatist (1957); Arthur Walworth,
Woodrow Wilson and His Peacemakers (1983).
FOURTEEN POINTS SPEECH
Gentlemen of the Congress ...
It will be our wish and purpose that the processes of peace, when they are begun, shall be
absolutely open and that they shall involve and permit henceforth no secret
understandings of any kind. The day of conquest and aggrandizement is gone by; so is
also the day of secret covenants entered into in the interest of particular governments and
likely at some unlooked-for moment to upset the peace of the world. It is this happy fact,
now clear to the view of every public man whose thoughts do not still linger in an age
that is dead and gone, which makes it possible for every nation whose purposes are
consistent with justice and the peace of the world to avow now or at any other time the
objects it has in view.
We entered this war because violations of right had occurred which touched us to the
quick and made the life of our own people impossible unless they were corrected and the
world secured once for all against their recurrence. What we demand in this war,
therefore, is nothing peculiar to ourselves. It is that the world be made fit and safe to live
in; and particularly that it be made safe for every peace-loving nation which, like our own,
wishes to live its own life, determine its own institutions, be assured of justice and fair
dealing by the other peoples of the world as against force and selfish aggression. All the
peoples of the world are in effect partners in this interest, and for our own part we see
very clearly that unless justice be done to others it will not be done to us. The program of
the world's peace, therefore, is our program; and that program, the only possible program,
as we see it, is this:
I. Open covenants of peace, openly arrived at, after which there shall be no private
international understandings of any kind but diplomacy shall proceed always frankly and
in the public view.
II. Absolute freedom of navigation upon the seas, outside territorial waters, alike in peace
and in war, except as the seas may be closed in whole or in part by international action
for the enforcement of international covenants.
III. The removal, so far as possible, of all economic barriers and the establishment of an
equality of trade conditions among all the nations consenting to the peace and associating
themselves for its maintenance.
IV. Adequate guarantees given and taken that national armaments will be reduced to the
lowest point consistent with domestic safety.
V. A free, open-minded, and absolutely impartial adjustment of all colonial claims, based
upon a strict observance of the principle that in determining all such questions of
sovereignty the interests of the populations concerned must have equal weight with the
equitable claims of the government whose title is to be determined.
VI. The evacuation of all Russian territory and such a settlement of all questions affecting
Russia as will secure the best and freest cooperation of the other nations of the world in
obtaining for her an unhampered and unembarrassed opportunity for the independent
determination of her own political development and national policy and assure her of a
sincere welcome into the society of free nations under institutions of her own choosing;
and, more than a welcome, assistance also of every kind that she may need and may
herself desire. The treatment accorded Russia by her sister nations in the months to come
will be the acid test of their good will, of their comprehension of her needs as
distinguished from their own interests, and of their intelligent and unselfish sympathy.
VII. Belgium, the whole world will agree, must be evacuated and restored, without any
attempt to limit the sovereignty which she enjoys in common with all other free nations.
No other single act will serve as this will serve to restore confidence among the nations in
the laws which they have themselves set and determined for the government of their
relations with one another. Without this healing act the whole structure and validity of
international law is forever impaired.
VIII. All French territory should be freed and the invaded portions restored, and the
wrong done to France by Prussia in 1871 in the matter of Alsace-Lorraine, which has
unsettled the peace of the world for nearly fifty years, should be righted, in order that
peace may once more be made secure in the interest of all.
IX. A readjustment of the frontiers of Italy should be effected along clearly recognizable
lines of nationality.
X. The peoples of Austria-Hungary, whose place among the nations we wish to see
safeguarded and assured, should be accorded the freest opportunity of autonomous
development.
XI. Rumania, Serbia, and Montenegro should be evacuated; occupied territories restored;
Serbia accorded free and secure access to the sea; and the relations of the several Balkan
states to one another determined by friendly counsel along historically established lines
of allegiance and nationality; and international guarantees of the political and economic
independence and territorial integrity of the several Balkan states should be entered into.
XII. The Turkish portions of the present Ottoman Empire should be assured a secure
sovereignty, but the other nationalities which are now under Turkish rule should be
assured an undoubted security of life and an absolutely unmolested opportunity of an
autonomous development, and the Dardanelles should be permanently opened as a free
passage to the ships and commerce of all nations under international guarantees.
XIII. An independent Polish state should be erected which should include the territories
inhabited by indisputably Polish populations, which should be assured a free and secure
access to the sea, and whose political and economic independence and territorial integrity
should be guaranteed by international covenant.
XIV. A general association of nations must be formed under specific covenants for the
purpose of affording mutual guarantees of political independence and territorial integrity
to great and small states alike.
In regard to these essential rectifications of wrong and assertions of right we feel
ourselves to be intimate partners of all the governments and peoples associated together
against the Imperialists. We cannot be separated in interest or divided in purpose. We
stand together until the end.
For such arrangements and covenants we are willing to fight and to continue to fight until
they are achieved; but only because we wish the right to prevail and desire a just and
stable peace such as can be secured only by removing the chief provocations to war,
which this program does not remove. We have no jealousy of German greatness, and
there is nothing in this program that impairs it. We grudge her no achievement or
distinction of learning or of pacific enterprise such as have made her record very bright
and very enviable. We do not wish to injure her or to block in any way her legitimate
influence or power. We do not wish to fight her either with arms or with hostile
arrangements of trade if she is willing to associate herself with us and the other peaceloving nations of the world in covenants of justice and law and fair dealing. We wish her
only to accept a place of equality among the peoples of the world, -- the new world in
which we now live, -- instead of a place of mastery.
Neither do we presume to suggest to her any alteration or modification of her institutions.
But it is necessary, we must frankly say, and necessary as a preliminary to any intelligent
dealings with her on our part, that we should know whom her spokesmen speak for when
they speak to us, whether for the Reichstag majority or for the military party and the men
whose creed is imperial domination.
We have spoken now, surely, in terms too concrete to admit of any further doubt or
question. An evident principle runs through the whole program I have outlined. It is the
principle of justice to all peoples and nationalities, and their right to live on equal terms
of liberty and safety with one another, whether they be strong or weak. Unless this
principle be made its foundation no part of the structure of international justice can stand.
The people of the United States could act upon no other principle; and to the vindication
of this principle they are ready to devote their lives, their honor, and everything that they
possess. The moral climax of this the culminating and final war for human liberty has
come, and they are ready to put their own strength, their own highest purpose, their own
integrity and devotion to the test.
Source: Arthur S. Link et al., eds., The Papers of Woodrow Wilson, vol. 45 (1984), 536.
ADDRESS AT CHARLOTTESVILLE (1940)
Franklin D. Roosevelt
The peace treaty following World War I left many Americans bitter and disillusioned.
They believed that an idealistic United States had gone to war to "make the world safe for
democracy," but the Old World had only been interested in empires and markets. During
the early 1930s a combination of popular writing and congressional hearings reinforced
the notion that bankers and munitions makers had been the real reason the United States
had entered the war. Add to these ingredients the worst depression in the nation's history,
and it is not difficult to understand why a vast majority of Americans embraced
isolationism in the 1930s. Moreover, a strong pacifist movement composed of people
horrified by the butchery of the Great War added to the feeling that the United States
should stay out of foreign affairs. While many people recognized the danger of fascism,
the vast majority of Americans essentially said, "Let the Europeans fight it out. We have
no business getting involved."
Franklin Roosevelt initially welcomed this attitude, since it allowed him to concentrate
on what he considered his -- and the nation's -- most pressing problem, securing
economic recovery. But as Nazi Germany and Fascist Italy began to march in the mid1930s, Roosevelt recognized that the United States could not sit idly by, that whether the
United States wanted to or not, it would be involved. From 1937 on, Roosevelt led a
political battle at home to ease the restrictions Congress had imposed in various
Neutrality Acts.
After Hitler invaded Poland and World War II began, American public opinion started to
shift. While most of the country still wanted to avoid getting involved in the fighting,
sentiment was growing to extend material aid to the Allies. Roosevelt also tried to
mediate, and he thought he had gotten Benito Mussolini to agree not to bring Italy into
the war. But Mussolini wanted war, and had already promised Hitler he would intervene.
Just as the president was getting onto the train to Charlottesville, Virginia, where he was
to deliver a major foreign policy address, he learned that Italy had declared war on France.
At Charlottesville, Roosevelt went further than he had done before, promising that the
United States would extend aid to England, then undergoing massive bombing by the
Luftwaffe, the German air force, in the Battle of Britain. In essence, this speech marks
American re-entry into the larger world; the United States would no longer be a neutral,
but a non-belligerent.
For further reading: Hans L. Trefousse, Germany and American Neutrality, 1939-1941
(1951); Robert A. Divine, The Reluctant Belligerent: American Entry into World War II
(1965); Robert Dallek, Franklin D. Roosevelt and American Foreign Policy, 1932-1945
(1979).
ADDRESS AT CHARLOTTESVILLE
President Newcomb, my friends of the University of Virginia...
Every generation of young men and women in America has questions to ask the world.
Most of the time they are the simple but nevertheless difficult questions -- questions of
work to do, opportunities to find, ambitions to satisfy.
But every now and again in the history of the republic a different kind of question
presents itself -- a question that asks, not about the future of an individual or even of a
generation, but about the future of the country, the future of the American people....
There is such a time again today. Again today the young men and the young women of
America ask themselves with earnestness and with deep concern this same question:
"What is to become of the country we know?"
Now they ask it with even greater anxiety than before. They ask, not only what the future
hold for this republic, but what the future holds for all peoples and all nations that have
been living under democratic forms of government -- under the free institutions of a free
people.
It is understandable to all of us, I think that they should ask this question. They read the
words of those who are telling them that the ideal of individual liberty, the ideal of free
franchise, the ideal of peace through justice is a decadent idea!
They read the word and hear the boast of those who say that a belief in force -- force
directed by self-chosen leaders -- is the new and vigorous system which will overrun the
earth. They have seen the ascendancy of this philosophy of force in nation after nation
where the free institutions and individual liberties were once maintained.
It is natural and understandable that the younger generation should first ask itself what
the extension of the philosophy of force to all the world would lead to ultimately. We see
today, for example, in stark reality some of the consequences of what we call the machine
age.
Where control of machines has been retained in the hands of mankind as a whole,
untotaled benefits have accrued to mankind. For mankind was then the master: The
machine was the servant.
But in this new system of force the mastery of the machine is not in the hands of mankind.
It is in the control of infinitely small groups of individuals who rule without a single one
of the democratic sanctions that we have known.
The machine in the hands of irresponsible conquerors becomes the master; mankind is
not only servant, it is the victim too. Such mastery abandons with deliberate contempt all
of the moral values to which even this young country for more than 300 years has been
accustomed and dedicated.
Surely the new philosophy proves from month to month that it could have no possible
conception of the way of life or the way of thought of a nation whose origins go back to
Jamestown and Plymouth Rock.
And conversely, neither those who sprang from that ancient stock nor those who have
come hither in later years can be indifferent to the destruction of freedom in their
ancestral lands across the sea.
Perception of danger to our institutions may come slowly or it may come with a rush and
shock as it has to the people of the United States in the past few months. This perception
of danger -- danger in a world-wide arena -- has come to us clearly and overwhelmingly.
We perceive the peril in this world-wide arena -- an arena that may become so narrow
that only the Americans will retain the ancient faiths.
Some indeed still hold to the now somewhat obvious delusion that we of the United
States can safely permit the United States to become a lone island in a world dominated
by the philosophy of force.
Such an island may be the dream of those who still talk and vote as isolationists. Such an
island represents to me and to the overwhelming majority of Americans today a helpless
nightmare, the helpless nightmare of a people without freedom. Yes, the nightmare of a
people lodged in prison, hand-cuffed, hungry and fed through the bars from day to day by
the contemptuous, unpitying masters of other continents.
It is natural also that we should ask ourselves how now we can prevent the building of
that prison and the placing of ourselves in the midst of it.
Let us not hesitate -- all of us -- to proclaim certain truths. Overwhelmingly we, as a
nation, and this applies to all the other American nations, we are convinced that military
and naval victory for the gods of force and hate would endanger the institutions of
democracy in the Western World -- and that equally, therefore, the whole of our
sympathies lie with those nations that are giving their life blood in combat against those
forces.
The people and Government of the United States have seen with the utmost regret and
with grave disquiet the decision of the Italian Government to engage in the hostilities
now raging in Europe.
More than three months ago the chief of the Italian Government sent me word that
because of the determination of Italy to limit, so far as might be possible, the spread of
European conflict, more that two hundred millions of people in the region of the
Mediterranean had been enabled to escape the suffering and the devastation of war.
I informed the chief of the Italian Government that this desire on the part of Italy to
prevent war from spreading met with full sympathy and response on the part of the
government and the people of the United States, and I expressed the earnest hope of this
government and of this people that this policy on the part of Italy might be continued. I
made it clear that in the opinion of the Government of the United States any extension of
hostilities in the region of the Mediterranean might result in the still greater enlargement
of the scene of the conflict, the conflict in the Near East and in Africa, and that if this
came to pass no one could foretell how much greater the theatre of the war eventually
might become.
Again, upon a subsequent occasion, not so far ago, recognizing that certain aspirations of
Italy might form the basis of discussions between the powers most specifically concerned,
I offered, in a message addressed to the chief of the Italian Government, to send to the
Governments of France and Great Britain such specific indications of the desires of Italy
to obtain readjustments with regard to her position as the chief of the Italian Government
might desire to transmit through me.
While making it clear that the government of the United States in such an event could not
and would not assume responsibility for the nature of the proposals submitted nor for
agreements which might thereafter be reached, I proposed that if Italy would refrain from
entering the war I would be willing to ask assurances from the other powers concerned
that they would faithfully execute any agreements so reached, and that Italy's voice in any
future peace conference would have the same authority as if Italy had actually taken part
in the war as a belligerent.
Unfortunately, unfortunately to the regret of all of us, and to the regret of humanity, the
chief of the Italian Government was unwilling to accept the procedure suggested, and he
has made no counter-proposal. This government directed its efforts to doing what it could
to work for the preservation of peace in the Mediterranean area, and it likewise expressed
its willingness to endeavor to cooperate with the government of Italy when the
appropriate occasion arose for the creation of a more stable world order, through the
reduction of armaments and through the construction of a more liberal international
economic system which would assure to all powers equality of opportunity in the world
markets and in the securing of raw materials on equal terms.
I have likewise, of course, felt it necessary in my communications to Signor Mussolini to
express the concern of the government of the United States because of the fact that any
extension of the war in the region of the Mediterranean would inevitably result in great
prejudice to the ways of life and government and to the trade and commerce of all the
American republics.
The government of Italy has now chosen to preserve what it terms its "freedom of action"
and to fulfill what it states are its promises to Germany. In doing so it has manifested
disregard for the rights and security of other nations, disregard for the lives of the peoples
of those nations which are directly threatened by the spread of this war; and has
evidenced its unwillingness to find the means through pacific negotiations for the
satisfactions of what it believes are its legitimate aspirations.
On this 10th day of June 1940, the hand that held the dagger has struck it into the back of
its neighbor.
On this 10th day of June 1940, in this university founded by the first great American
teacher of democracy we send forth our prayers and our hopes to those beyond the seas
who are maintaining with magnificent valor their battle for freedom.
In our unity, in our American unity, we will pursue two obvious and simultaneous
courses; we will extend to the opponents of force the material resources of this nation and,
at the same time, we will harness and speed up the use of those resources in order that we
ourselves in the Americas may have equipment and training equal to the task of any
emergency and every defense.
All roads leading to the accomplishment of these objectives must be kept clear of
obstructions. We will not slow down or detour. Signs and signals call for speed -- full
speed ahead.
Yes, it is right that each new generation should ask questions. But in recent months the
principal question has been somewhat simplified. Once more the future of the American
people is at stake.
We need not and we will not, in any way, abandon our continuing efforts to make
democracy work within our borders. Yes, we still insist on the need for vast
improvements in our own social and economic life.
But that, that is a component part of national defense itself.
The program unfolds swiftly and into that program will fit the responsibility and the
opportunity of every man and woman in the land to preserve our heritage in days of peril.
I call for effort, courage, sacrifice, devotion. Granting the love of freedom, all of these are
possible.
And the love of freedom is still fierce, still steady in the nation today.
Source: Samuel Rosenman, ed., Public Papers and Addresses of Franklin D. Roosevelt,
vol. 9 (1938-1950), 259.
THE ATLANTIC CHARTER (1941)
The United States would not enter the war until after the Japanese attack on Pearl Harbor
in December 1941. But by the spring of 1941 Congress had approved the Lend Lease
program, and the aid Roosevelt had promised at Charlottesville had begun to flow to
Great Britain, where Winston Churchill was now prime minister. In July 1941, Roosevelt
and Churchill met for the first time in Argentia Bay off Newfoundland, to issue a joint
declaration on the purposes of the war against fascism. Just as Wilson's Fourteen Points
delineated the first war, so the Atlantic Charter provided the criteria for the second.
Originally the Soviet Union, which had been attacked by Germany the month before, was
to sign the charter as well. But the notion of "one world," in which nations abandoned
their traditional beliefs in and reliance upon military alliances and spheres of influence,
did not appeal to Joseph Stalin, and, in fact, neither was Churchill particularly thrilled.
Only Roosevelt, who had been a member of the Wilson administration, truly believed in
the possibility of a world governed by democratic processes, with an international
organization serving as an arbiter of disputes and protector of the peace.
For further reading: James McGregor Burns, Roosevelt: The Soldier of Freedom (1970);
Gaddis Smith, American Diplomacy During the Second World War (1964); and Robert
Divine, Roosevelt and World War II (1969).
THE ATLANTIC CHARTER
The President of the United States of America and the Prime Minister, Mr. Churchill,
representing His Majesty's Government in the United Kingdom, being met together,
deem it right to make known certain common principles in the national policies of their
respective countries on which they base their hopes for a better future for the world.
First, their countries seek no aggrandizement, territorial or other;
Second, they desire to see no territorial changes that do not accord with the freely
expressed wishes of the peoples concerned;
Third, they respect the right of all peoples to choose the form of government under which
they will live; and they wish to see sovereign rights and self government restored to those
who have been forcibly deprived of them;
Fourth, they will endeavor, with due respect for their existing obligations, to further the
enjoyment by all States, great or small, victor or vanquished, of access, on equal terms, to
the trade and to the raw materials of the world which are needed for their economic
prosperity;
Fifth, they desire to bring about the fullest collaboration between all nations in the
economic field with the object of securing, for all, improved labor standards, economic
advancement and social security;
Sixth, after the final destruction of the Nazi tyranny, they hope to see established a peace
which will afford to all nations the means of dwelling in safety within their own
boundaries, and which will afford assurance that all the men in all the lands may live out
their lives in freedom from fear and want;
Seventh, such a peace should enable all men to traverse the high seas and oceans without
hindrance;
Eighth, they believe that all of the nations of the world, for realistic as well as spiritual
reasons must come to the abandonment of the use of force. Since no future peace can be
maintained if land, sea or air armaments continue to be employed by nations which
threaten, or may threaten, aggression outside of their frontiers, they believe, pending the
establishment of a wider and permanent system of general security, that the disarmament
of such nations is essential. They will likewise aid and encourage all other practicable
measures which will lighten for peace-loving peoples the crushing burden of armaments.
Franklin D. Roosevelt
Winston S. Churchill
Source: Samuel Rosenman, ed., Public Papers and Addresses of Franklin D. Roosevelt,
vol.10 (1938-1950), 314.
FOREIGN AID AND HUMAN RIGHTS (1976)
The civil rights movement of the 1960s led Americans to pay greater attention to human
rights outside the United States. Watchdog groups such as Amnesty International, Human
Rights Watch and Trans-Africa reported on violations of basic human rights not only in
openly authoritarian countries but in supposedly democratic countries as well.
At the same time, post-Vietnam criticism of American foreign policy led to a questioning
of the assumption that because a country claimed to be anti-communist, it should
automatically receive American support and economic aid. Instead, the argument went,
foreign aid ought to be given only to democratic regimes that respected individual rights.
American policy overseas, according to these critics, had only been successful in the past
when it had been tied to a strong moral stance. The notion that American "interests"
could lead to support of dictatorships affronted them on both a pragmatic and a moral
basis.
In 1976, Congress overrode a presidential veto to enact a human rights policy into the
International Security and Arms Export Control Act. While some critics claimed the
provision was more symbolic than anything else, symbols do, in fact, carry great weight
in shaping public perceptions. The congressional message was that as a democracy, the
United States was obligated to put into practice overseas the same principles it claimed to
hold dear at home, that democracy was, in fact, indivisible.
For further reading: Samuel S. Kim, The Quest for a Just World Order (1984); Peter
Brown and Douglas McLean, eds., Human Rights and U.S. Foreign Policy (1979); and
Donald P. Kommers and Gilburt D. Loescher, eds., Human Rights and American Foreign
Policy (1979).
FOREIGN AID AND HUMAN RIGHTS
Title III -- General Limitations
Human Rights
Sec. 301. (a) Section 502B of the Foreign Assistance Act of 1961 is amended to read as
follows:
Sec. 502B. Human Rights. -- (a) (1) It is the policy of the United States, in accordance
with its international obligations as set forth in the Charter of the United Nations and in
keeping with the constitutional heritage and traditions of the United States, to promote
and encourage increased respect for human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion. To this end, a principal goal of
the foreign policy of the United States is to promote the increased observance of
internationally recognized human rights by all countries.
(2) It is further the policy of the United States that, except under circumstances specified
in this section, no security assistance may be provided to any country the government of
which engages in a consistent pattern of gross violations of internationally recognized
human rights.
(3) In furtherance of the foregoing policy the President is directed to formulate and
conduct international security assistance programs of the United States in a manner which
will promote and advance human rights and avoid identification of the United States,
through such programs, with governments which deny to their people internationally
recognized human rights and fundamental freedoms, in violation of international law or
in contravention of the policy of the United States as expressed in this section or
otherwise.
(b) The Secretary of State shall transmit to the Congress, as part of the presentation
materials for security assistance programs proposed for each fiscal year a full and
complete report, prepared with the assistance of the Coordinator for Human Rights and
Humanitarian Affairs, with respect to practices regarding the observance of and respect
for internationally recognized human rights in each country proposed as a recipient of
security assistance. In determining whether a government falls within the provisions of
subsection (a)(3) and in the preparation of any report or statement required under this
section, consideration shall be given to -(1) the relevant findings of appropriate international organizations, including
nongovernmental organizations, such as the International Committee of the Red Cross;
and
(2) the extent of cooperation by such government in permitting an unimpeded
investigation by any such organization of alleged violations of internationally recognized
human rights.
(c) (1) Upon the request of the Senate or the House of Representatives by resolution of
either such House, or upon the request of the Committee on Foreign Relations of the
Senate or the Committee on International Relations of the House of Representatives, the
Secretary of State shall, within thirty days after receipt of such request, transmit to both
such committees a statement, prepared with the assistance of the Coordinator for Human
Rights and Humanitarian Affairs, with respect to the country designated in such request,
setting forth -(A) all the available information about observance of and respect for human rights and
fundamental freedom in that country, and a detailed description of practices by the
recipient government with respect thereto;
(B) the steps the United States has taken to -(i) promote respect for and observance of human rights in that country and discourage
any practices which are inimical to internationally recognized human rights, and
(ii) publicly or privately call attention to, and disassociate the United States and any
security assistance provided for such country from, such practices;
(C) whether, in the opinion of the Secretary of State, notwithstanding any such practices (i) extraordinary circumstances exist which necessitate a continuation of security
assistance for such country, and, if so, a description of such circumstances and the extent
to which such assistance should be continued (subject to such conditions as Congress
may impose under this section), and
(ii) on all the facts it is in the national interest of the United States to provide such
assistance; and
(D) such other information as such committee or such House may request.
(2) (A) A resolution of request under paragraph (1) of this subsection shall be considered
in the Senate in accordance with the provisions of section 601(b) of the International
Security Assistance and Arms Export Control Act of 1976.
(B) The term 'certification', as used in section 601 of such Act, means, for the purposes of
this subsection, a resolution of request of the Senate under paragraph (1) of this
subsection.
(3) In the event a statement with respect to a country is requested pursuant to paragraph
(1) of this subsection but is not transmitted in accordance therewith within thirty days
after receipt of such request, no security assistance shall be delivered to such country
except as may thereafter be specifically authorized by law from such country unless and
until such statement is transmitted.
(4) (A) In the event a statement with respect to a country is transmitted under paragraph
(1) of this subsection, the Congress may at any time thereafter adopt a joint resolution
terminating, restricting, or continuing security assistance for such country. In the event
such a joint resolution is adopted, such assistance shall be so terminated, so restricted, or
so continued, as the case may be.
(B) Any such resolution shall be considered in the Senate in accordance with the
provisions of section 601(b) of the International Security Assistance and Arms Export
Control Act of 1976.
(C) The term 'certification', as used in section 601 of such Act, means, for the purposes of
this paragraph, a statement transmitted under paragraph (1) of this subsection.
(d) For the purposes of this section -(1) the term 'gross violations of internationally recognized human rights' includes torture
or cruel, inhuman, or degrading treatment or punishment, prolonged detention without
charges and trial, and other flagrant denial of the right to life, liberty, or the security of
person ....
(e) Section 624 of the Foreign Assistance Act of 1961 is amended by adding at the end
thereof the following new subsection:
(f) (1) There is established in the Department of State a Coordinator for Human Rights
and Humanitarian Affairs. The Coordinator shall be appointed by the President with the
advice and consent of the Senate. He shall be responsible to the Secretary of State for
matters pertaining to human rights and humanitarian affairs (including matters relating to
refugees, prisoners of war, and members of the United States Armed Forces missing in
action) in the conduct of foreign policy. The Secretary of State shall carry out his
responsibility under section 502B of this Act through the Coordinator for Human Rights
and Humanitarian Affairs.
(2) The Coordinator for Human Rights and Humanitarian Affairs shall maintain
continuous observation and review of all matters pertaining to human rights and
humanitarian affairs (including matters relating to refugees, prisoners of war, and
members of the United States Armed Forces missing in action) in the conduct of foreign
policy including -(A) gathering detailed information regarding humanitarian affairs and the observance of
and respect for internationally recognized human rights in each country to which
requirements of sections 116 and 502B of this Act are relevant;
(B) preparing the statements and reports to Congress required under section 502B of this
Act;
(C) making recommendations to the Secretary of State and the Administrator of the
Agency for International Development regarding compliance with sections 116 and 502B
of this Act; and
(D) performing other responsibilities which serve to promote increased observance of
internationally recognized human rights by all countries.
Sec. 302. (a) Section 505 of the Foreign Assistance Act of 1961 is amended by adding at
the end thereof the following new subsection:
(g) (1) It is the policy of the United States that no assistance under this chapter should be
furnished to any foreign country, the laws, regulations, official policies, or governmental
practices of which prevent any United States person ...from participating in the furnishing
of defense articles or defense services under this chapter on the basis of race, religion,
national origin, or sex.
(2) (A) No agency performing functions under this chapter shall, in employing or
assigning personnel to participate in the performance of any such function, whether in the
United States or abroad, take into account the exclusionary policies or practices of any
foreign government where such policies or practices are based upon race, religion,
national origin, or sex.
(B) Each contract entered into by any such agency for the performance of any function
under this chapter shall contain a provision to the effect that no person, partnership,
corporation, or other entity performing functions pursuant to such contract, shall, in
employing or assigning personnel to participate in the performance of any such function,
whether in the United States or abroad, take into account the exclusionary policies or
practices of any foreign government where such policies or practices are based upon race,
religion, national origin, or sex.
(3) The President shall promptly transmit reports to the Speaker of the House of
Representatives and the chairman of the Committee on Foreign Relations of the Senate
concerning any transaction in which any United States person is prevented by a foreign
government on the basis of race, religion, national origin, or sex, from participating in the
furnishing of assistance under this chapter, or education and training under chapter 5, to
any foreign country. Such reports shall include (A) a description of the facts and
circumstances of any such discrimination, (B) the response thereto on the part of the
United States or any agency or employee thereof, and (C) the result of such response, if
any.
(4) (A) Upon the request of the Committee on Foreign Relations of the Senate or the
Committee on International Relations of the House of Representatives, the President shall,
within 60 days after receipt of such request, transmit to both such committees a statement,
prepared with the assistance of the Coordinator for Human Rights and Humanitarian
Affairs, with respect to the country designated in such request, setting forth -(i) all the available information about the exclusionary policies or practices of the
government of such country when such policies or practices are based upon race, religion,
national origin, or sex and prevent any such person from participating in a transaction
involving the furnishing of any assistance under this chapter or any education and
training under chapter 5;
(ii) the response of the United States thereto and the results of such response;
(iii) whether, in the opinion of the President, notwithstanding any such policies or
practices -(I) extraordinary circumstances exist which necessitate continuation of such assistance or
education and training transaction, and, if so, a description of such circumstances and the
extent to which such assistance or education and training transaction should be continued
(subject to such conditions as Congress may impose under this section), and (II) on all the
facts it is in the national interest of the United States to continue such assistance or
education and training transaction; and
(iv) such other information as such committee may request.
(B) In the event a statement with respect to an assistance or training transaction is
requested pursuant to subparagraph (A) of this paragraph but is not transmitted in
accordance therewith within 60 days after receipt of such request, such assistance or
training transaction shall be suspended unless and until such statement is transmitted.
(C) (i) In the event a statement with respect to an assistance or training transaction is
transmitted under subparagraph (A) of this paragraph, the Congress may at any time
thereafter adopt a joint resolution terminating or restricting such assistance or training
transaction....
Source: U.S. Statutes at Large 90 (1976): 729
HUMAN RIGHTS AND FOREIGN POLICY (1977)
Jimmy Carter
Few presidents in modern times have been as devoted to the goal that American foreign
policy should reflect the nation's highest moral ideals as Jimmy Carter. At a time when
the United States was still grappling with its own problems of race relations and human
rights, Carter forthrightly advocated a policy that held other countries to the highest
standard possible, a standard by which, he believed, Americans would want themselves
to be judged. In 1980, for example, following the Soviet Union's invasion of Afghanistan,
the Carter administration cancelled American participation in the summer Olympics
scheduled for Moscow as a protest against the invasion.
In a commencement speech given at Notre Dame University in June 1977, Carter
reviewed what he believed should be the ideals and realities of American foreign policy.
It is a far different message than the one given on the same subject by the country's first
president.
For further reading: Jimmy Carter, Keeping Faith (1982); Robert C. Gray and Stanley I.
Michalak, Jr., eds., American Foreign Policy since Detente (1984); Burton Kaufman, The
Presidency of James Earl Carter (1992).
HUMAN RIGHTS AND FOREIGN POLICY
Nation: to provide more efficiently for the needs of our people, to demonstrate -- against
the dark faith of our times -- that our Government can be both competent and more
humane.
But I want to speak to you today about the strands that connect our actions overseas with
our essential character as a nation. I believe we can have a foreign policy that is
democratic, that is based on fundamental values, and that uses power and influence,
which we have, for humane purposes. We can also have a foreign policy that the
American people both support and, for a change, know about and understand.
I have a quiet confidence in our own political system. Because we know that democracy
works, we can reject the arguments of those rulers who deny human rights to their people.
We are confident that democracy's example will be compelling, and so we seek to bring
that example closer to those from whom in the past few years we have been separated and
who are not yet convinced about the advantages of our kind of life.
We are confident that the democratic methods are the most effective, and so we are not
tempted to employ improper tactics here at home or abroad.
We are confident of our own strength, so we can seek substantial mutual reductions in the
nuclear arms race.
And we are confident of the good sense of American people, and so we let them share in
the process of making foreign policy decisions. We can thus speak with the voices of 215
million, and not just of an isolated handful.
Democracy's great recent successes -- in India, Portugal, Spain, Greece -- show that our
confidence in this system is not misplaced. Being confident of our own future, we are
now free of that inordinate fear of communism which once led us to embrace any dictator
who joined us in that fear. I'm glad that that's being changed.
For too many years, we've been willing to adopt the flawed and erroneous principles and
tactics of our adversaries, sometimes abandoning our own values for theirs. We've fought
fire with fire, never thinking that fire is better quenched with water. This approach failed,
with Vietnam the best example of its intellectual and moral poverty. But through failure
we have now found our way back to our own principles and values, and we have regained
our lost confidence.
By the measure of history, our Nation's 200 years are very brief, and our rise to world
eminence is briefer still. It dates from 1945, when Europe and the old international order
lay in ruins. Before then, America was largely on the periphery of world affairs. But since
then, we have inescapably been at the center of world affairs.
Our policy during this period was guided by two principles: a belief that Soviet expansion
was almost inevitable but that it must be contained, and the corresponding belief in the
importance of an almost exclusive alliance among non-Communist nations on both sides
of the Atlantic. That system could not last forever unchanged. Historical trends have
weakened its foundation. The unifying threat of conflict with the Soviet Union has
become less intensive, even though the competition has become more extensive.
The Vietnamese war produced a profound moral crisis, sapping worldwide faith in our
own policy and our system of life, a crisis of confidence made even more grave by the
covert pessimism of some of our leaders.
In less than a generation, we've seen the world change dramatically. The daily lives and
aspirations of most human beings have been transformed. Colonialism is nearly gone. A
new sense of national identity now exists in almost 100 new countries that have been
formed in the last generation. Knowledge has become more widespread. Aspirations are
higher. As more people have been freed from traditional constraints, more have been
determined to achieve, for the first time in their lives, social justice.
The world is still divided by ideological disputes, dominated by regional conflicts, and
threatened by danger that we will not resolve the differences of race and wealth without
violence or without drawing into combat the major military powers. We can no longer
separate the traditional issues of war and peace from the new global questions of justice,
equity, and human rights.
It is a new world, but America should not fear it. It is a new world, and we should help to
shape it. It is a new world that calls for a new American foreign policy -- a policy based
on constant decency in its values and on optimism in our historical vision.
We can no longer have a policy solely for the industrial nations as the foundation of
global stability, but we must respond to the new reality of a politically awakening world.
We can no longer expect that the other 150 nations will follow the dictates of the
powerful, but we must continue -- confidently -- our efforts to inspire, to persuade, and to
lead.
Our policy must reflect our belief that the world can hope for more than simple survival
and our belief that dignity and freedom are fundamental spiritual requirements. Our
policy must shape an international system that will last longer than secret deals.
We cannot make this kind of policy by manipulation. Our policy must be open; it must be
candid; it must be one of constructive global involvement, resting on five cardinal
principles.
I've tried to make these premises clear to the American people since last January. Let me
review what we have been doing and discuss what we intend to do.
First, we have reaffirmed America's commitment to human rights as a fundamental tenet
of our foreign policy. In ancestry, religion, color, place of origin, and cultural background,
we Americans are as diverse a nation as the world has even seen. No common mystique
of blood or soil unites us. What draws us together, perhaps more than anything else, is a
belief in human freedom. We want the world to know that our Nation stands for more
than financial prosperity.
This does not mean that we can conduct our foreign policy by rigid moral maxims. We
live in a world that is imperfect and which will always be imperfect -- a world that is
complex and confused and which will always be complex and confused.
I understand fully the limits of moral suasion. We have no illusion that changes will come
easily or soon. But I also believe that it is a mistake to undervalue the power of words
and of the ideas that words embody. In our own history, that power has ranged from
Thomas Paine's "Common Sense" to Martin Luther King, Jr.'s "I Have a Dream."
In the life of the human spirit, words are action, much more so than many of us may
realize who live in countries where freedom of expression is taken for granted. The
leaders of totalitarian nations understand this very well. The proof is that words are
precisely the action for which dissidents in those countries are being persecuted.
Nonetheless, we can already see dramatic, worldwide advances in the protection of the
individual from the arbitrary power of the state. For us to ignore this trend would be to
lose influence and moral authority in the world. To lead it will be to regain the moral
stature that we once had.
The great democracies are not free because we are strong and prosperous. I believe we
are strong and influential and prosperous because we are free.
Throughout the world today, in free nations and in totalitarian countries as well, there is a
preoccupation with the subject of human freedom, human rights. And I believe it is
incumbent on us in this country to keep that discussion, that debate, that contention alive.
No other country is as well-qualified as we to set an example. We have our own
shortcomings and faults, and we should strive constantly and with courage to make sure
that we are legitimately proud of what we have.
Second, we've moved deliberately to reinforce the bonds among our democracies. In our
recent meetings in London, we agreed to widen our economic cooperation, to promote
free trade, to strengthen the world's monetary system, to seek ways of avoiding nuclear
proliferation. We prepared constructive proposals for the forthcoming meetings on NorthSouth problems of poverty, development, and global well-being. And we agreed on joint
efforts to reinforce and to modernize our common defense.
You may be interested in knowing that at this NATO meeting, for the first time in more
than 25 years, all members are democracies. Even more important, all of us reaffirmed
our basic optimism in the future of the democratic system. Our spirit of confidence is
spreading. Together, our democracies can help to shape the wider architecture of global
cooperation.
Third, we've moved to engage the Soviet Union in a joint effort to halt the strategic arms
race. This race is not only dangerous, it's morally deplorable. We must put an end to it. I
know it will not be easy to reach agreements. Our goal is to be fair to both sides, to
produce reciprocal stability, parity, and security. We desire a freeze on further
modernization and production of weapons and a continuing, substantial reduction of
strategic nuclear weapons as well. We want a comprehensive ban on all nuclear testing, a
prohibition against all chemical warfare, no attack capability against space satellites, and
arms limitations in the Indian Ocean.
We hope that we can take joint steps with all nations toward a final agreement
eliminating nuclear weapons completely from our arsenals of death. We will persist in
this effort.
Now, I believe in detente with the Soviet Union. To me it means progress toward peace.
But the effects of detente should not be limited to our own two countries alone. We hope
to persuade the Soviet Union that one country cannot impose its system of society upon
another, either through direct military intervention or through the use of a client state's
military force, as was the case with Cuban intervention in Angola.
Cooperation also implies obligation. We hope that the Soviet Union will join with us and
other nations in playing a larger role in aiding the developing world, for common aid
efforts will help us build a bridge of mutual confidence in one another.
Fourth, we are taking deliberate steps to improve the chances of lasting peace in the
Middle East. Through wide-ranging consultation with leaders of the countries involved -Israel, Syria, Jordan, and Egypt -- we have found some areas of agreement and some
movement toward consensus. The negotiations must continue.
Through my own public comments, I've also tried to suggest a more flexible framework
for the discussion of the three key issues which have so far been so intractable: the nature
of a comprehensive peace -- what is peace; what does it mean to the Israelis; what does it
mean to their Arab neighbors; secondly, the relationship between security and borders -how can the dispute over border delineations be established and settled with a feeling of
security on both sides; and the issue of the Palestinian homeland.
The historic friendship that the United States has with Israel is not dependent on domestic
politics in either nation; it's derived from our common respect for human freedom and
from a common search for permanent peace.
We will continue to promote a settlement which all of us need. Our own policy will not
be affected by changes in leadership in any of the countries in the Middle East. Therefore,
we expect Israel and her neighbors to continue to be bound by United Nations
Resolutions 242 and 338, which they have previously accepted.
This may be the most propitious time for a genuine settlement since the beginning of the
Arab-Israeli conflict almost 30 years ago. To let this opportunity pass could mean disaster
not only for the Middle East but, perhaps, for the international political and economic
order as well.
And fifth, we are attempting, even at the risk of some friction with our friends, to reduce
the danger of nuclear proliferation and the worldwide spread of conventional weapons.
At the recent summit, we set in motion an international effort to determine the best ways
of harnessing nuclear energy for peaceful use while reducing the risks that its products
will be diverted to the making of explosives.
We've already completed a comprehensive review of our own policy on arms transfers.
Competition in arms sales is inimical to peace and destructive of the economic
development of the poorer countries.
We will, as a matter of national policy now in our country, seek to reduce the annual
dollar volume of arms sales, to restrict the transfer of advanced weapons, and to reduce
the extent of our coproduction arrangements about weapons with foreign states. And just
as important, we are trying to get other nations, both free and otherwise, to join us in this
effort.
But all of this that I've described is just the beginning. It's a beginning aimed towards a
clear goal: to create a wider framework of international cooperation suited to the new and
rapidly changing historical circumstances.
We will cooperate more closely with the newly influential countries in Latin America,
Africa, and Asia. We need their friendship and cooperation in a common effort as the
structure of world power changes.
More than 100 years ago, Abraham Lincoln said that our Nation could not exist half slave
and half free. We know a peaceful world cannot long exist one-third rich and two-thirds
hungry.
Most nations share our faith that, in the long run, expanded and equitable trade will best
help the developing countries to help themselves. But the immediate problems of hunger,
disease, illiteracy, and repression are here now.
The Western democracies, the OPEC nations, and the developed Communist countries
can cooperate through existing international institutions in providing more effective aid.
This is an excellent alternative to war.
We have a special need for cooperation and consultation with other nations in this
hemisphere -- to the north and to the south. We do not need another slogan. Although
these are our close friends and neighbors, our links with them are the same links of
equality that we forge for the rest of the world. We will be dealing with them as part of a
new, worldwide mosaic of global, regional, and bilateral relations.
It's important that we make progress toward normalizing relations with the People's
Republic of China. We see the American and Chinese relationship as a central element of
our global policy and China as a key force for global peace. We wish to cooperate closely
with the creative Chinese people on the problems that confront all mankind. And we hope
to find a formula which can bridge some of the difficulties that still separate us.
Finally, let me say that we are committed to a peaceful resolution of the crisis in southern
Africa. The time has come for the principle of majority rule to be the basis for political
order, recognizing that in a democratic system the rights of the minority must also be
protected.
To be peaceful, change must come promptly. The United States is determined to work
together with our European allies and with the concerned African States to shape a
congenial international framework for the rapid and progressive transformation of
southern African society and to help protect it from unwarranted outside interference.
Let me conclude by summarizing: Our policy is based on an historical vision of
America's role. Our policy is derived from a larger view of global change. Our policy is
rooted in our moral values, which never change. Our policy is reinforced by our material
wealth and by our military power. Our policy is designed to serve mankind. And it is a
policy that I hope will make you proud to be Americans.
Source: Jimmy Carter, Public Papers of the Presidents of the United States: Jimmy
Carter, vol.1 (1977), 954.
SANCTIONS AGAINST SOUTH AFRICA (1986)
Dutch settlers, known as Boers, arrived in southern Africa in the seventeenth century, and
the British came two hundred years later. At the beginning of the twentieth century, the
British conquered the Dutch, and brought the four colonies of Transvaal, the Orange Free
State, Cape Colony and Natal into the Union of South Africa in 1910.
By then, all the black Africans in the area had come under white rule, and they faced the
usual restrictions imposed by imperial powers on native peoples. But a specific policy of
racial separation, known as apartheid, did not begin until 1948, when the strongly
nationalist Afrikaners took power under D.F. Malan. In the ensuing years the government
passed a number of laws that required blacks to live in designated areas and carry
identification papers, and which denied them basic civil liberties and rights.
The United States, like most of the European countries, had paid little attention to
apartheid at the time of its inception; moreover, its underlying philosophy was similar to
the segregation imposed by law in the southern states. With the rise of the civil rights
movement in the United States and the revolt against colonial rule in Asia and Africa,
voices were raised within the United States and in the United Nations against apartheid.
Within South Africa the African National Congress, headed by Nelson Mandela, led the
opposition to the government's racial policies. Many of the ANC leaders, including
Mandela, spent many years in jail.
In the 1970s the South African government began easing some of its racial restrictions,
but the pace did not satisfy the ANC, and wide-scale violence committed by extremists
on both sides took hundreds of lives. Even though the government of P.W. Botha seemed
committed to ending apartheid, opponents of the system demanded more reforms and at a
faster pace.
The charismatic Anglican bishop, Desmond Tutu, rallied western support with his call for
a boycott of South Africa, primarily through economic sanctions. The administration of
Ronald Reagan opposed formal sanctions, preferring to exert quiet pressure to speed up
reform. But the demand for sanctions could not be quieted, and in 1986 Congress
overrode a presidential veto to ban the importation of South African goods and prohibit
American business investments in South Africa.
While some critics believe the sanctions were more symbolic than anything else, others
claim that they did contribute to rapid political change in South Africa. In 1990 President
F.W. de Klerk released Nelson Mandela after twenty-seven years of imprisonment,
opened negotiations with the ANC and scrapped most of the apartheid laws. In 1992 a
strong majority of the country's white population voted to endorse de Klerk's dismantling
of apartheid and the extension of political rights to the black majority. When this
happened, President Bush lifted the economic sanctions, claiming that the purpose of the
bill had been successfully carried out.
For further reading: Margaret P. Doxey, Economic Sanctions and International
Enforcement (1980); Richard A. Falk, Samuel S. Kim and Saul H. Mendlovitz, eds., The
United Nations and a Just World Order (1991).
SANCTIONS AGAINST SOUTH AFRICA
Title I -- Policy of the United States with Respect to Ending Apartheid
Policy Toward the Government of South Africa
Sec. 101. (a) United States policy toward the Government of South Africa shall be
designed to bring about reforms in that system of government that will lead to the
establishment of a nonracial democracy.
(b) The United States will work toward this goal by encouraging the Government of
South Africa to -(1) repeal the present state of emergency and respect the principle of equal justice under
law for citizens of all races
(2) release Nelson Mandela, Govan Mbeki, Walter Sisulu black trade union leaders, and
all political prisoners;
(3) permit the free exercise by South Africans of all races of the right to form political
parties, express political opinions, and otherwise participate in the political process;
(4) establish a timetable for the elimination of apartheid laws
(5) negotiate with representatives of all racial groups in South Africa the future political
system in South Africa, and
(6) end military and paramilitary activities aimed at neighboring states.
(c) The United States will encourage the actions set forth in subsection (b) through
economic, political, and diplomatic measures as set forth in this Act. The United States
will adjust its actions toward the Government of South Africa to reflect the progress or
lack of progress made by the Government of South Africa in meeting the goal set forth in
subsection (a).
Policy Toward the African National Congress, etc.
Sec 102. (a) United States policy toward the African National Congress, the Pan African
Congress, and their affiliates shall be designed to bring about a suspension of violence
that will lead to the start of negotiations designed to bring about a nonracial and genuine
democracy in South Africa.
(b) The United States shall work toward this goal by encouraging the African National
Congress and the Pan African Congress, and their affiliates, to -(1) suspend terrorist activities so that negotiations with the Government of South Africa
and other groups representing black South Africans will be possible;
(2) make known their commitment to a free and democratic post-apartheid South Africa (3) agree to enter into negotiations with the South African Government and other groups
representing black South Africans for the peaceful solution of the problems of South
Africa -(4) reexamine their ties to the South African Communist Party.
(c) The United States will encourage the actions set forth in subsection (b) through
political and diplomatic measures. The United States will adjust its actions toward the
Government of South Africa not only to reflect progress or lack of progress made by the
Government of South Africa in meeting the goal set forth in subsection 101(a) but also to
reflect progress or lack of progress made by the ANC and other organizations in meeting
the goal set forth in subsection (a) of this section.
Policy Toward the Victims of Apartheid
Sec 103. (a) The United States policy toward the victims of apartheid is to use economic,
political, diplomatic, and other effective means to achieve the removal of the root cause
of their victimization, which is the apartheid system. In anticipation of the removal of the
system of apartheid and as a further means of challenging that system, it is the policy of
the United States to assist these victims of apartheid as individuals and through
organizations to overcome the handicaps imposed on them by the system of apartheid and
to help prepare them for their rightful roles as full participants in the political, social,
economic, and intellectual life of their country in the post-apartheid South Africa
envisioned by this Act.
(b) The United States will work toward the purposes of subsection (a) by -(1) providing assistance to South African victims of apartheid without discrimination by
race, color, sex, religious belief, or political orientation, to take advantage of educational
opportunities in South Africa and in the United States to prepare for leadership positions
in a post-apartheid South Africa;
(2) assisting victims of apartheid;
(3) aiding individuals or groups in South Africa whose goals are to aid victims of
apartheid or foster nonviolent legal or political challenges to the apartheid laws;
(4) furnishing direct financial assistance to those whose nonviolent activities had led to
their arrest or detention by the South African authorities and (B) to the families of those
killed by terrorist acts such as "necklacings";
(5) intervening at the highest political levels in South Africa to express the strong desire
of the United States to see the development in South Africa of a nonracial democratic
society;
(6) supporting the rights of the victims of apartheid through political, economic, or other
sanctions in the event the Government of South Africa fails to make progress toward the
removal of the apartheid laws and the establishment of such democracy; and
(7) supporting the rights of all Africans to be free of terrorist attacks by setting a time
limit after which the United States will pursue diplomatic and political measures against
those promoting terrorism and against those countries harboring such groups so as to
achieve the objectives of this Act.
Policy Toward Other Countries in South Africa
Sec 104. (a) The United States policy toward the other countries in the Southern African
region shall be designed to encourage democratic forms of government, full respect for
human rights, an end to cross-border terrorism, political independence, and economic
development.
(b) The United States will work toward the purposes of subsection (a) by -(1) helping to secure the independence of Namibia and the establishment of Namibia as a
nonracial democracy in accordance with appropriate United Nations Security Council
resolutions;
(2) supporting the removal of all foreign military forces from the region;
(3) encouraging the nations of the region to settle differences through peaceful means;
(4) promoting economic development through bilateral and multilateral economic
assistance targeted at increasing opportunities in the productive sectors of national
economies, with a particular emphasis on increasing opportunities for nongovernmental
economic activities;
(5) encouraging, and when necessary, strongly demanding, that all countries of the region
respect the human rights of their citizens and noncitizens residing in the country, and
especially the release of persons persecuted for their political beliefs or detained without
trial;
(6) encouraging, and when necessary, strongly demanding that all countries of the region
take effective action to end cross-border terrorism; and
(7) providing appropriate assistance, within the limitations of American responsibilities at
home and in other regions, to assist regional economic cooperation and the development
of interregional transportation and other capital facilities necessary for economic growth.
Policy Toward Frontline States
Sec 105. It is the sense of the Congress that the President should discuss with the
governments of the African "frontline" states the effects on them of disruptions in
transportation or other economic links through South Africa and of means of reducing
those effects.
Sec. 106. (a)(1) United States policy will seek to promote negotiations among
representatives of all citizens of South Africa to determine a future political system that
would permit all citizens to be full participants in the governance of their country. The
United States recognizes that important and legitimate political parties in South Africa
include several organizations that have been banned and will work for the unbanning of
such organizations in order to permit legitimate political viewpoints to be represented at
such negotiations. The United States also recognizes that some of the organizations
fighting apartheid have become infiltrated by Communists and that Communists serve on
the governing boards of such organizations.
(2) To this end, it is the sense of the Congress that the President, the Secretary of State, or
other appropriate high-level United States officials should meet with the leaders of
opposition organizations of South Africa, particularly but not limited to those
organizations representing the black majority. Furthermore, the President, in concert with
the major allies of the United States and other interested parties, should seek to bring
together opposition political leaders with leaders of the Government of South Africa for
the purpose of negotiations to achieve a transition to the post-apartheid democracy
envisioned in this Act.
(b) The United States will encourage the Government of South Africa and all participants
to the negotiations to respect the right of all South Africans to form political parties,
express political opinions, and otherwise participate in the political process without fear
of retribution by either governmental or nongovernmental organizations. It is the sense of
the Congress that a suspension of violence is an essential precondition for the holding of
negotiations. The United States calls upon all parties to the conflict to agree to a
suspension of violence.
(c) The United States will work toward the achievement of agreement to suspend
violence and begin negotiations through coordinated actions with the major Western
allies and with the governments of the countries in the region.
(d) It is the sense of the Congress that the achievement of an agreement for negotiations
could be promoted if the United States and its major allies, such as Great Britain, Canada,
France, Italy, Japan, and West Germany, would hold a meeting to develop a fourpoint
plan to discuss with the Government of South Africa a proposal for stages of multilateral
assistance to South Africa in return for the Government of South Africa implementing -(1) an end to the state of emergency and the release of the political prisoners, including
Nelson Mandela;
(2) the unbanning of the African National Congress, the Pan African Congress, the Black
Consciousness Movement, and all other groups willing to suspend terrorism and to
participate in negotiations and a democratic process
(3) a revocation of the Group Areas Act and the Population Registration Act and the
granting of universal citizenship to all South Africans, including homeland residents; and
(4) the use of the international offices of a third party as an intermediary to bring about
negotiations with the object of the establishment of power-sharing with the black
majority.
Policy Toward International Cooperation on Measures to End Apartheid
Sec. 107. (a) The Congress finds that -(1) international cooperation is a prerequisite to an effective anti-apartheid policy and to
the suspension of terrorism in South Africa; and
(2) the situation in South Africa constitutes an emergency in international relations and
that action is necessary for the protection of the essential security interests of the United
States.
(b) Accordingly, the Congress urges the President to seek such cooperation among all
individuals, groups, and nations.
Policy Toward Necklacing
Sec. 108. It is the sense of the Congress that the African National Congress should
strongly condemn and take effective actions against the execution by fire, commonly
known as "necklacing", of any person in any country.
United States Ambassador to Meet with Nelson Mandela Sec. 109. It is the sense of the
Senate that the United States Ambassador should promptly make a formal request to the
South African Government for the United States Ambassador to meet with Nelson
Mandela.
Policy Toward the Recruitment and Training of Black South Africans by United States
Employers
Sec. 110. (a) The Congress finds that -(1) the policy of apartheid is abhorrent and morally repugnant;
(2) the United States believes strongly in the principles of democracy and individual
freedoms;
(3) the United States endorses the policy of political participation of all citizens;
(4) a free, open, and vital economy is a primary means for achieving social equality and
economic advancement for all citizens; and
(5) the United States is committed to a policy of securing and enhancing human rights
and individual dignity throughout the world.
(b) It is the sense of the Congress that United States employers operating in South Africa
are obliged both generally to actively oppose the policy and practices of apartheid and
specifically to engage in recruitment and training of black and colored South Africans for
management responsibilities.
Title III -- Measures by the United States to Undermine Apartheid
Prohibition on the Importation of Krugerrands
Sec. 301. No person, including a bank, may import into the United States any South
African krugerrand or any other gold coin minted in South Africa or offered for sale by
the Government of South Africa.
Prohibition on the Importation of Military Articles
Sec. 302. No arms, ammunition, or military vehicles produced in South Africa or any
manufacturing data for such articles may be imported into the United States....
Prohibition on Computer Exports to South Africa
Sec. 304. (a) No computers, computer software, or goods or technology intended to
manufacture or service computers may be exported to or for use by any of the following
entities of the Government of South Africa:
(1) The military.
(2) The police.
(3) The prison system.
(4) The national security agencies.
(5) ARMSCOR and its subsidiaries or the weapons research activities of the Council for
Scientific and Industrial Research.
(6) The administering authorities for controlling the movements of the victims of
apartheid.
(7) Any apartheid enforcing agency.
(8) Any local, regional, or homelands government entity which performs any function of
any entity described in paragraphs (1) through (7).
(b) (1) Computers, computer software, and goods or technology intended to service
computers may be exported, directly or indirectly, to or for use by an entity of the
Government of South Africa other than those set forth in subsection (a) only if a system
of end use verification is in effect to ensure that the computers involved will not be used
for any function of any entity set forth in subsection (a).
(2) The Secretary of Commerce may prescribe such rules and regulations as may be
necessary to carry out this section.
Prohibition on Loans to the Government of South Africa
Sec. 305. (a) No national of the United States may make or approve any loan or other
extension of credit, directly or indirectly, to the Government of South Africa or to any
corporation, partnership or other organization which is owned or controlled by the
Government of South Africa....
Prohibition on Air Transportation with South Africa
Sec. 306. (a) (1) The President shall immediately notify the Government of South Africa
of his intention to suspend the rights of any air carrier designated by the Government of
South Africa under the Agreement Between the Government of the United States of
America and the Government of the Union of South Africa Relating to Air Services
Between Their Respective Territories, signed May 23, 1947, to service the routes
provided in the Agreement.
(2) Ten days after the date of enactment of this Act, the President shall direct the
Secretary of Transportation to revoke the right of any air carrier designated by the
Government of South Africa under the Agreement to provide service pursuant to the
Agreement.
(3) Ten days after the date of enactment of this Act, the President shall direct the
Secretary of Transportation not to permit or otherwise designate any United States air
carrier to provide service between the United States and South Africa pursuant to the
Agreement....
Prohibitions on Nuclear Trade with South Africa
Sec 307. (a) Notwithstanding any other provision of law -(1) the Nuclear Regulatory Commission shall not issue any license for the export to South
Africa of production or utilization facilities, any source or special nuclear material or
sensitive nuclear technology, or any component parts, items, or substances which the
Commission has determined, pursuant to section 109b. of the Atomic Energy Act, to be
especially relevant from the standpoint of export control because of their significance for
nuclear explosive purposes....
Prohibition on Importation of Uranium and Coal from South Africa
Sec. 309. (a) Notwithstanding any other provision of law, no -- (l) uranium ore, (2)
uranium oxide (3) coal, or (4) textiles produced or manufactured in South Africa may be
imported into the United States.
(b) This section shall take effect 90 days after the date of enactment of this Act.
Prohibition on New Investment in South Africa
Sec. 310. (a) No national of the United States may, directly or through another person,
make any new investment in South Africa.
(b) The prohibition contained in subsection (a) shall take effect 45 days after the date of
enactment of this Act.
(c) The prohibition contained in this section shall not apply to a firm owned by black
South Africans.
Termination of Certain Provisions
Sec 311. (a) This title and sections 501(c) and 504(b) shall terminate if the Government
of South Africa -(1) releases all persons persecuted for their political beliefs or detained unduly without
trial and Nelson Mandela from prison;
(2) repeals the state of emergency in effect on the date of enactment of this Act and
releases all detainees held under such state of emergency;
(3) unbans democratic political parties and permits the free exercise by South Africans of
all races of the right to form political parties, express political opinions, and otherwise
participate in the political process;
(4) repeals the Group Areas Act and the Population Registration Act and institutes no
other measures with the same purposes; and
(5) agrees to enter into good faith negotiations with truly representative members of the
black majority without preconditions.
(b) The President may suspend or modify any of the measures required by this title or
section 501(c) or section 504(b) thirty days after he determines, and so reports to the
Speaker of the House of Representatives and the chairman of the Committee on Foreign
Relations of the Senate, that the Government of South Africa has -(1) taken the action described in paragraph (1) of subsection (a),
(2) taken three of the four actions listed in paragraphs (2) through (5) of subsection (a),
and
(3) made substantial progress toward dismantling the system of apartheid and
establishing a nonracial democracy, unless the Congress enacts within such 30-day period,
in accordance with section 602 of this Act, a joint resolution disapproving the
determination of the President under this subsection.
(c) It is the policy of the United States to support the negotiations with the representatives
of all communities as envisioned in this Act. If the South African Government agrees to
enter into negotiations without preconditions, abandons unprovoked violence against its
opponents, commits itself to a free and democratic post-apartheid South Africa under a
code of law; and if nonetheless the African National Congress, the Pan African Congress,
or their affiliates, or other organizations, refuse to participate; or if the African National
Congress, the Pan African Congress or other organizations -(1) refuse to abandon unprovoked violence during such negotiations; and
(2) refuse to commit themselves to a free and democratic postapartheid South Africa
under a code of law, then the United States will support negotiations which do not
include these organizations.
Policy Toward Violence or Terrorism
Sec. 312. (a) United States policy toward violence in South Africa shall be designed to
bring about an immediate end to such violence and to promote negotiations concluding
with a removal of the system of apartheid and the establishment of a non-racial
democracy in South Africa.
(b) The United States shall work toward this goal by diplomatic and other measures
designed to isolate those who promote terrorist attacks on unarmed civilians or those who
provide assistance to individuals or groups promoting such activities.
(c) The Congress declares that the abhorrent practice of "necklacing" and other equally
inhumane acts which have been practices in South Africa by blacks against fellow blacks
are an affront to all throughout the world who value the rights of individuals to live in an
atmosphere free from fear of violent reprisals....
Source: U.S. Statutes at Large 100 (1986): 1086.
PART IX: COLD WAR ISSUES
The joy that accompanied the defeat of Germany and Japan in 1945 quickly turned to
consternation as America's wartime ally, the Soviet Union, suddenly became its enemy in
what would be a forty-year-long Cold War.
The Cold War put great strains on American society and government. It required the
nation to reassess certain priorities and assumptions, a process not always easy to
accomplish. Americans are used to thinking of foreign policy matters in black-or-white
terms: a nation is our friend or enemy, a policy is good or bad, a war can be won or lost.
Harry Truman devised what would be the heart of American foreign policy for the Cold
War, a policy known as containment. Its goal was to ensure that the Soviet Union did not
expand further than eastern Europe, and when the communist forces pushed, the United
States would push back, but only with measured force.
The war allowed Americans to be generous, as they showed in the Marshall Plan, but the
Cold War also led to some serious strains upon the body politic. In the midst of a war, an
unpopular president had to fire a popular general in order to reassert civilian control over
the military. The Supreme Court had to declare a presidential action taken under the war
powers as unconstitutional, something not done since the Civil War. And the ugly side of
democracy, the face of the mob, made a brief but fearsome appearance in the form of
McCarthyism. But the nation survived the Cold War, and in doing so actually
strengthened a number of democratic principles.
The 60th Anniversary of the Marshall Plan (2007)
THE MARSHALL PLAN (1947)
On June 5, 1947, Secretary of State George C. Marshall spoke at Harvard University and
outlined what would become known as the Marshall Plan. Europe, still devastated by the
war, had just survived one of the worst winters on record. The nations of Europe had
nothing to sell for hard currency, and the democratic socialist governments in most
countries were unwilling to adopt the draconian proposals for recovery advocated by oldline classical economists. Something had to be done, both for humanitarian reasons and
also to stop the potential spread of communism westward.
The United States offered up to $20 billion for relief, but only if the European nations
could get together and draw up a rational plan on how they would use the aid. For the
first time, they would have to act as a single economic unit; they would have to cooperate
with each other. Marshall also offered aid to the Soviet Union and its allies in eastern
Europe, but Stalin denounced the program as a trick and refused to participate. The
Russian rejection probably made passage of the measure through Congress possible.
The Marshall Plan, it should be noted, benefited the American economy as well. The
money would be used to buy goods from the United States, and they had to be shipped
across the Atlantic on American merchant vessels. But it worked. By 1953 the United
States had pumped in $13 billion, and Europe was standing on its feet again. Moreover,
the Plan included West Germany, which was thus reintegrated into the European
community. (The aid was all economic; it did not include military aid until after the
Korean War.)
Aside from helping to put Europe back on its feet, the Marshall Plan led to the Schuman
Plan, which in turn led to Euratom, then the Coal and Iron Community and the Common
Market, and pointed to what may yet evolve into an economically and politically united
Europe. In many ways, the Marshall Plan satisfied both those who wanted our foreign
policy to be generous and idealistic and those who demanded realpolitik; it helped feed
the starving and shelter the homeless, and at the same time stopped the spread of
communism and put the European economy back on its feet.
For further reading: John Gimbel, The Origins of the Marshall Plan (1976); Imanuel
Wexler, The Marshall Plan Revisited (1983); Michael Hogan, The Marshall Plan (1987).
THE MARSHALL PLAN
I need not tell you gentlemen that the world situation is very serious. That must be
apparent to all intelligent people. I think one difficulty is that the problem is one of such
enormous complexity that the very mass of facts presented to the public by press and
radio make it exceedingly difficult for the man in the street to reach a clear appraisement
of the situation. Furthermore, the people of this country are distant from the troubled
areas of the earth and it is hard for them to comprehend the plight and consequent
reaction of the long-suffering peoples, and the effect of those reactions on their
governments in connection with our efforts to promote peace in the world.
In considering the requirements for the rehabilitation of Europe the physical loss of life,
the visible destruction of cities, factories, mines, and railroads was correctly estimated,
but it has become obvious during recent months that this visible destruction was probably
less serious than the dislocation of the entire fabric of European economy. For the past 10
years conditions have been highly abnormal. The feverish maintenance of the war effort
engulfed all aspects of national economics. Machinery has fallen into disrepair or is
entirely obsolete. Under the arbitrary and destructive Nazi rule, virtually every possible
enterprise was geared into the German war machine. Long-standing commercial ties,
private institutions, banks, insurance companies and shipping companies disappeared,
through the loss of capital, absorption through nationalization or by simple destruction. In
many countries, confidence in the local currency has been severely shaken. The
breakdown of the business structure of Europe during the war was complete. Recovery
has been seriously retarded by the fact that 2 years after the close of hostilities a peace
settlement with Germany and Austria has not been agreed upon. But even given a more
prompt solution of these difficult problems, the rehabilitation of the economic structure
of Europe quite evidently will require a much longer time and greater effort than had
been foreseen.
There is a phase of this matter which is both interesting and serious. The farmer has
always produced the foodstuffs to exchange with the city dweller for the other necessities
of life. This division of labor is the basis of modern civilization. At the present time it is
threatened with breakdown. The town and city industries are not producing adequate
goods to exchange with the food-producing farmer. Raw materials and fuel are in short
supply. Machinery is lacking or worn out. The farmer or the peasant cannot find the
goods for sale which he desires to purchase. So the sale of his farm produce for money
which he cannot use seems to him unprofitable transaction. He, therefore, has withdrawn
many fields from crop cultivation and is using them for grazing. He feeds more grain to
stock and finds for himself and his family an ample supply of food, however short he
may be on clothing and the other ordinary gadgets of civilization. Meanwhile people in
the cities are short of food and fuel. So the governments are forced to use their foreign
money and credits to procure these necessities abroad. This process exhausts funds which
are urgently needed for reconstruction. Thus a very serious situation is rapidly developing
which bodes no good for the world. The modern system of the division of labor upon
which the exchange of products is based is in danger of breaking down.
The truth of the matter is that Europe's requirements for the next 3 or 4 years of foreign
food and other essential products -- principally from America -- are so much greater than
her present ability to pay that she must have substantial additional help, or face economic,
social, and political deterioration of a very grave character.
The remedy lies in breaking the vicious circle and restoring the confidence of the
European people in the economic future of their own countries and of Europe as a whole.
The manufacturer and the farmer throughout wide areas must be able and willing to
exchange their products for currencies the continuing value of which is not open to
question.
Aside from the demoralizing effect on the world at large and the possibilities of
disturbances arising as a result of the desperation of the people concerned, the
consequences to the economy of the United States should be apparent to all. It is logical
that the United States should do whatever it is able to do to assist in the return of normal
economic health in the world, without which there can be no political stability and no
assured peace. Our policy is directed not against any country or doctrine but against
hunger, poverty, desperation, and chaos. Its purpose should be the revival of working
economy in the world so as to permit the emergence of political and social conditions in
which free institutions can exist. Such assistance, I am convinced, must not be on a
piecemeal basis as various crises develop. Any assistance that this Government may
render in the future should provide a cure rather than a mere palliative. Any government
that is willing to assist in the task of recovery will find full cooperation, I am sure, on the
part of the United States Government. Any government which maneuvers to block the
recovery of other countries cannot expect help from us. Furthermore, governments,
political parties, or groups which seek to perpetuate human misery in order to profit
therefrom politically or otherwise will encounter the opposition of the United States.
It is already evident that, before the United States Government can proceed much further
in its efforts to alleviate the situation and help start the European world on its way to
recovery, there must be some agreement among the countries of Europe as to the
requirements of the situation and the part those countries themselves will take in order to
give proper effect to whatever action might be undertaken by this Government. It would
be neither fitting nor efficacious for this Government to undertake to draw up unilaterally
a program designed to place Europe on its feet economically. This is the business of the
Europeans. The initiative, I think, must come from Europe. The role of this country
should consist of friendly aid in the drafting of a European program so far as it may be
practical for us to do so. The program should be a joint one, agreed to by a number, if not
all European nations.
An essential part of any successful action on the part of the United States is an
understanding on the part of the people of America of the character of the problem and
the remedies to be applied. Political passion and prejudice should have no part. With
foresight, and a willingness on the part of our people to face up to the vast responsibilities
which history has clearly placed upon our country, the difficulties I have outlined can and
will be overcome.
Source: Congressional Record, 30 June 1947.
RECALL OF GENERAL DOUGLAS MACARTHUR
(1951)
Following World War II, the Korean peninsula was divided, supposedly temporarily,
along the 38th parallel, with a Russian-allied communist government in the north and a
pro-Western government in the south. On June 24, 1950, armies of North Korea flooded
across the dividing line, and the Truman administration quickly committed troops to a
United Nations effort aimed at pushing the North Koreans back across the 38th parallel.
General Douglas MacArthur, then in charge of the Allied occupation of Japan, assumed
command of the United Nations troops, which were soon pushed back to a small
perimeter around the southern port city of Pusan. Then, in a brilliant maneuver,
MacArthur simultaneously broke out of the Pusan perimeter and launched an amphibious
landing at Inchon. Soon UN forces had not only reached the 38th parallel but were
crossing it and heading north toward the Yalu River, the boundary between China and
North Korea.
MacArthur conceived of the Korean war as a holy war; he kept talking about "unleashing
Chiang Kai-shek," then holed up in his island fortress on Formosa, and launching atomic
strikes, all of which made Truman, the Joint Chiefs of Staff and the other UN countries
involved very nervous. For Harry Truman and the Joint Chiefs, Korea was an exercise in
containment, but that made it a very frustrating war for many Americans. It meant that in
this war the United States was not aiming for total victory, but for more limited, and more
ambiguous, results.
There is a tradition in American government that the military is subordinate to the
civilian leaders. Generals do not make statements about policy without first clearing them
with their superiors. But MacArthur, used to ruling in Japan, ignored the chain of
command, and began writing letters about what the United States should do in Korea. He
sent a letter to the Veterans of Foreign Wars saying that Formosa would be a fine place to
launch an aggressive campaign against China. After the Chinese entered the war -something MacArthur had assured Truman would never happen -- MacArthur wrote to
Speaker of the House Joe Martin saying the United States could only win by an all-out
war, and this meant bombing the Manchurian bases. So Harry Truman fired him, and
evoked a firestorm of criticism from conservatives who believed Truman to be soft on
communism. But there is no question that Truman was absolutely correct. Whether his
overall policy was right or wrong, the American Constitution commits control of foreign
policy to the president and not to the military. As Truman explained, avoidance of World
War III while containing aggression was a difficult line to walk, but that was the policy
the United States had decided upon. No soldier, not even a five-star general, could
unilaterally challenge that policy without disturbing an essential element of democratic
government.
For further reading: Richard Rovere and Arthur M. Schlesinger, Jr., The General and the
President (1951); John Spanier, The Truman- MacArthur Controversy (1959); Trumbull
Higgins, Korea and the Fall of MacArthur (1960).
RECALL OF GENERAL DOUGLAS MACARTHUR (1951)
I want to talk plainly to you tonight about what we are doing in Korea and about our
policy in the Far East.
In the simplest terms, what we are doing in Korea is this: We are trying to prevent a third
world war.
I think most people in this country recognized that fact last June. And they warmly
supported the decision of the Government to help the Republic of Korea against the
Communist aggressors. Now, many persons, even some who applauded our decision to
defend Korea, have forgotten the basic reason for our action.
It is right for us to be in Korea. It was right last June. It is right today.
I want to remind you why this is true.
The Communists in the Kremlin are engaged in a monstrous conspiracy to stamp out
freedom all over the world. If they were to succeed, the United States would be numbered
among their principal victims. It must be clear to everyone that the United States cannot - and will not -- sit idly by and await foreign conquest. The only question is: When is the
best time to meet the threat and how?
The best time to meet the threat is in the beginning. It is easier to put out a fire in the
beginning when it is small than after it has become a roaring blaze.
And the best way to meet the threat of aggression is for the peace-loving nations to act
together. If they don't act together, they are likely to be picked off, one by one....
This is the basic reason why we joined in creating the United Nations. And since the end
of World War II we have been putting that lesson into practice -- we have been working
with other free nations to check the aggressive designs of the Soviet Union before they
can result in a third world war.
That is what we did in Greece, when that nation was threatened by aggression of
international communism.
The attack against Greece could have led to general war. But this country came to the aid
of Greece. The United Nations supported Greek resistance. With our help, the
determination and efforts of the Greek people defeated the attack on the spot.
Another big Communist threat to peace was the Berlin blockade. That too could have led
to war. But again it was settled because free men would not back down in an
emergency....
The question we have had to face is whether the Communist plan of conquest can be
stopped without general war. Our Government and other countries associated with us in
the United Nations believe that the best chance of stopping it without general war is to
meet the attack in Korea and defeat it there.
That is what we have been doing. It is a difficult and bitter task.
But so far it has been successful.
So far, we have prevented World War III.
So far, by fighting a limited war in Korea, we have prevented aggression from succeeding
and bringing on a general war. And the ability of the whole free world to resist
Communist aggression has been greatly improved.
We have taught the enemy a lesson. He has found out that aggression is not cheap or easy.
Moreover, men all over the world who want to remain free have been given new courage
and new hope. They know now that the champions of freedom can stand up and fight.
Our resolute stand in Korea is helping the forces of freedom now fighting in Indochina
and other countries in that part of the world. It has already slowed down the timetable of
conquest....
We do not want to see the conflict in Korea extended. We are trying to prevent a world
war -- not to start one. The best way to do this is to make plain that we and the other free
countries will continue to resist the attack.
But you may ask: Why can't we take other steps to punish the aggressor? Why don't we
bomb Manchuria and China itself? Why don't we assist Chinese Nationalist troops to land
on the mainland of China?
If we were to do these things we would be running a very grave risk of starting a general
war. If that were to happen, we would have brought about the exact situation we are
trying to prevent.
If we were to do these things, we would become entangled in a vast conflict on the
continent of Asia and our task would become immeasurably more difficult all over the
world.
What would suit the ambitions of the Kremlin better than for military forces to be
committed to a full-scale war with Red China? ...
The course we have been following is the one best calculated to avoid an all-out war. It is
the course consistent with our obligation to do all we can to maintain international peace
and security. Our experience in Greece and Berlin shows that it is the most effective
course of action we can follow....
If the Communist authorities realize that they cannot defeat us in Korea, if they realize it
would be foolhardy to widen the hostilities beyond Korea, then they may recognize the
folly of continuing their aggression. A peaceful settlement may then be possible. The
door is always open.
Then we may achieve a settlement in Korea which will not compromise the principles
and purposes of the United Nations.
I have thought long and hard about this question of extending the war in Asia. I have
discussed it many times with the ablest military advisers in the country. I believe with all
my heart that the course we are following is the best course.
I believe that we must try to limit war to Korea for these vital reasons: to make sure that
the precious lives of our fighting men are not wasted; to see that the security of our
country and the free world is not needlessly jeopardized; and to prevent a third world war.
A number of events have made it evident that General MacArthur did not agree with that
policy. I have therefore considered it essential to relieve General MacArthur so that there
would be no doubt or confusion as to the real purpose and aim of our policy.
It was with the deepest personal regret that I found myself compelled to take this action.
General MacArthur is one of our greatest military commanders. But the cause of world
peace is more important than any individual.
The change in commands in the Far East means no change whatever in the policy of the
United States. We will carry on the fight in Korea with vigor and determination in an
effort to bring the war to a speedy and successful conclusion.
The new commander, Lt. Gen. Matthew Ridgway, has already demonstrated that he has
the great qualities of military leadership needed for this task.
We are ready, at any time, to negotiate for a restoration of peace in the area. But we will
not engage in appeasement. We are only interested in real peace.
Real peace can be achieved through a settlement based on the following factors:
One: the fighting must stop.
Two: concrete steps must be taken to insure that the fighting will not break out again.
Three: there must be an end to the aggression.
A settlement founded upon these elements would open the way for the unification of
Korea and the withdrawal of all foreign forces.
In the meantime, I want to be clear about our military objective. We are fighting to resist
an outrageous aggression in Korea. We are trying to keep the Korean conflict from
spreading to other areas. But at the same time we must conduct our military activities so
as to insure the security of our forces. This is essential if they are to continue the fight
until the enemy abandons its ruthless attempt to destroy the Republic of Korea.
That is our military objective -- to repel attack and to restore peace.
In the hard fighting in Korea, we are proving that collective action among nations is not
only a high principle but a workable means of resisting aggression. Defeat of aggression
in Korea may be the turning point in the world's search for a practical way of achieving
peace and security.
The struggle of the United Nations in Korea is a struggle for peace.
The free nations have united their strength in an effort to prevent a third world war.
That war can come if the Communist rulers want it to come. But this Nation and its allies
will not be responsible for its coming.
We do not want to widen the conflict. We will use every effort to prevent that disaster.
And in so doing we know that we are following the great principles of peace, freedom,
and justice.
Source: Department of State Bulletin, 16 April 1951.
YOUNGSTOWN SHEET & TUBE CO. V SAWYER
(1952)
If the recall of General MacArthur reaffirmed the tradition of civilian control over the
military, the Steel Seizure case reminded the nation that, even in a war, the president
could not act beyond the bounds of his constitutional powers.
In April 1952, President Truman ordered seizure of the nation's steel mills in order to
forestall a strike which, he claimed, would have seriously harmed the nation during the
Korean conflict. Although there was a law on the books, the Taft-Hartley Act, which
gave the president the power to impose an eighty-day "cooling off" period when a strike
was threatened, Truman refused to use that law, since he had opposed its passage in the
first place. He also chose not to ask Congress for special legislation. Instead, he chose to
take over control of the companies under his emergency war powers as commander-inchief.
The steel companies did not deny that the government could take over their property in
emergencies. Rather, they claimed that the wrong branch of the government had
proceeded against them; in essence, they sued the president on behalf of Congress on the
basis that the presidential action had violated the constitutional doctrine of separation of
powers. Six members of the Court agreed, and Justice Hugo Black's majority opinion
made a strong case for requiring the president, even in wartime, to abide by established
rules.
From a constitutional standpoint, Youngstown remains one of the "great" modern cases,
in that it helped to redress the balance of power among the three branches of government,
a balance that had been severely distorted by the enormous growth of the executive
branch and its powers first during the Depression, then during the war and the subsequent
postwar search for global security.
For further reading: Maeva Marcus, Truman and the Steel Seizure Case: The Limits of
Presidential Power (1977); Alan F. Westin, The Anatomy of a Constitutional Law Case:
Youngstown Sheet & Tube Co. v. Sawyer; The Steel Seizure Decision (1958).
YOUNGSTOWN SHEET & TUBE CO. V. SAWYER
Justice Black delivered the opinion of the Court.
We are asked to decide whether the President ... was acting within his constitutional
power when he issued an order directing the Secretary of Commerce to take possession of
and operate most of the Nation's steel mills. The mill owners argued that the President's
order amounts to lawmaking, a legislative function which the Constitution has expressly
confided to the Congress and not to the President. The Government's position is that the
order was made on findings of the President that his action was necessary to avert a
national catastrophe which would inevitably result from a stoppage of steel production,
and that in meeting this grave emergency the President was acting within the aggregate of
his constitutional powers as the Nation's Chief Executive and the Commander in Chief of
the Armed Forces of the United States....
The President's power, if any, to issue the order must stem either from an act of Congress
or from the Constitution itself. There is no statute that expressly authorizes the President
to take possession of property as he did here. Nor is there any act of Congress to which
our attention has been directed from which such a power can fairly be implied. There are
two statutes which do authorize the President to take both personal and real property
under certain conditions....However, the Government admits that these conditions were
not met and that the President's order was not rooted in either of the statutes....
Moreover, the use of the seizures technique to solve labor disputes in order to prevent
work stoppages was not only unauthorized by any congressional enactment; prior to this
controversy, Congress had refused to adopt that method of settling labor disputes. When
the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment
which would have authorized such governmental seizures in cases of emergency. Instead,
the plan sought to bring about settlements by use of the customary devices of mediation,
conciliation, investigations by boards of inquiry, and public reports. In some instances
temporary injunctions were authorized to provide cooling-off periods. All this failing,
unions were left free to strike....
It is clear that if the president had authority to issue the order he did, it must be found in
some provision of the Constitution. And it is not claimed that express constitutional
language grants this power to the President. The contention is that presidential power
should be implied from the aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that "The executive Power shall
be vested in a President"; that "he shall take Care that the Laws be faithfully executed";
and that he "shall be Commander in Chief of the Army and Navy of the United States."
The order cannot properly be sustained as an exercise of the President's military power as
Commander in Chief of the Armed Forces. The Government attempts to do so by citing a
number of cases upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us here. Even though "theater of
war" be an expanding concept, we cannot with faithfulness to our constitutional system
hold that the Commander in Chief of the Armed Forces has the ultimate power as such to
take possession of private property in order to keep labor disputes from stopping
production. This is a job for the Nation's lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions
that grant executive power to the President. In the framework of our Constitution, the
President's power to see that the laws are faithfully executed refutes the idea that he is to
be a lawmaker. The Constitution limits his functions in the law-making process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the
President is to execute....
The President's order does not direct that a congressional policy be executed in a manner
prescribed by Congress -- it directs that a presidential policy be executed in a manner
prescribed by the President. The preamble of the order itself, like that of many statutes,
sets out reasons why the President believes certain policies should be adopted, proclaims
these policies as rules of conduct to be followed, and again, like a statute, authorizes a
government official to promulgate additional rules and regulations consistent with the
policy proclaimed and needed to carry that policy into execution. The power of Congress
to adopt such public policies as those proclaimed by the order is beyond question. It can
authorize the taking of private property for public use. It can make laws regulating the
relationships between employers and employees, prescribing rules designed to settle
labor disputes, and fixing wages and working conditions in certain fields of our economy.
The Constitution does not subject this lawmaking power of Congress to presidential or
military supervision or control.
It is said that other Presidents without congressional authority have taken possession of
private business enterprises in order to settle labor disputes. But even if this be true,
Congress has not thereby lost its exclusive constitutional authority to make laws
necessary and proper to carry out the powers vested by the Constitution "in the
Government of the United States, or any Department or Officer thereof."
The Founders of this Nation entrusted the lawmaking power to the Congress alone in
both good and bad times. It would do no good to recall the historical events, the fears of
power and the hopes for freedom that lay behind their choice. Such a review would but
confirm our holding that this seizure order cannot stand.
Source: 343 U.S. 579 (1952).
CENSURE OF SENATOR JOSEPH MCCARTHY
(1954)
Periodically American society has been gripped by fear, and its responses have not done
credit to its democratic nature. In this century the Red Scare following World War I (see
Document 43) saw hundreds of innocent aliens rounded up, imprisoned and deported, for
no reason other than fear of their allegedly radical ideas. The Cold War unleashed
another Red Scare in the late 1940s and early 1950s. But where there had been no great
alien menace in 1919, communism did exist and did pose a danger to western democracy
in the post-World War II era.
The hunt for subversives started during the war itself, and was furthered by congressional
committees that often abused their powers of investigation to harass people with whom
they differed politically. Then in February 1950, an undistinguished, first-term
Republican senator from Wisconsin, Joseph McCarthy, burst into national prominence
when, in a speech in Wheeling, West Virginia, he held up a piece of paper that he
claimed was a list of 205 known communists currently working in the State Department.
McCarthy never produced documentation for a single one of his charges, but for the next
four years he exploited an issue that he realized had touched a nerve in the American
public.
He and his aides, Roy Cohn and David Schine, made wild accusations, browbeat
witnesses, destroyed reputations and threw mud at men like George Marshall, Adlai
Stevenson, and others whom McCarthy charged were part of an effete "eastern
establishment." For several years, McCarthy terrorized American public life, and even
Dwight Eisenhower, who detested McCarthy, was afraid to stand up to him. Finally,
however, the senator from Wisconsin over-reached himself.
In January 1954, in what were to be the first televised hearings in American history,
McCarthy obliquely attacked President Eisenhower and directly assaulted Secretary of
the Army Robert Stevens. Day after day the public watched McCarthy in action -bullying, harassing, never producing any hard evidence, and his support among people
who thought he was "right" on communism began to evaporate. Americans regained their
senses, and the Red Scare finally began to wane. By the end of the year, the Senate
decided that its own honor could no longer put up with McCarthy's abuse of his
legislative powers, and it censured him in December by a vote of 65 to 22.
For further reading: Richard Rovere, Senator Joe McCarthy (1959); Stanley Kutler, The
American Inquisition (1982); Thomas C. Reeves, The Life and Times of Joe McCarthy
(1982).
CENSURE OF SENATOR JOSEPH MCCARTHY
Resolved, That the Senator from Wisconsin, Mr. McCarthy, failed to cooperate with the
Subcommittee on Privileges and Elections of the Senate Committee on Rules and
Administration in clearing up matters referred to that subcommittee which concerned his
conduct as a Senator and affected the honor of the Senate and, instead, repeatedly abused
the subcommittee and its members who were trying to carry out assigned duties, thereby
obstructing the constitutional processes of the Senate, and that this conduct of the Senator
from Wisconsin, Mr. McCarthy, is contrary to senatorial traditions and is hereby
condemned.
Sec 2. The Senator from Wisconsin, Mr. McCarthy, in writing to the chairman of the
Select Committee to Study Censure Charges (Mr. Watkins) after the Select Committee
had issued its report and before the report was presented to the Senate charging three
members of the Select Committee with "deliberate deception" and "fraud" for failure to
disqualify themselves; in stating to the press on November 4, 1954, that the special
Senate session that was to begin November 8, 1954, was a "lynch-party"; in repeatedly
describing this special Senate session as a "lynch bee" in a nationwide television and
radio show on November 7, 1954; in stating to the public press on November 13, 1954,
that the chairman of the Select Committee (Mr. Watkins) was guilty of "the most unusual,
most cowardly things I've ever heard of" and stating further: "I expected he would be
afraid to answer the questions, but didn't think he'd be stupid enough to make a public
statement"; and in characterizing the said committee as the "unwitting handmaiden,"
"involuntary agent" and "attorneys-in-fact" of the Communist Party and in charging that
the said committee in writing its report "imitated Communist methods -- that it distorted,
misrepresented, and omitted in its effort to manufacture a plausible rationalization" in
support of its recommendations to the Senate, which characterizations and charges were
contained in a statement released to the press and inserted in the Congressional Record of
November 10, 1954, acted contrary to senatorial ethics and tended to bring the Senate
into dishonor and disrepute, to obstruct the constitutional processes of the Senate, and to
impair its dignity; and such conduct is hereby condemned.
Source: 83rd Congress, 2nd Session, Senate Resolution 301 (2 December 1954).
DEMOCRACY AND FOREIGN POLICY (1990)
The breakup of the Soviet Union, the demolition of the Berlin Wall, and the
disintegration of what many had seen as an "evil empire" -- the communist bloc of
eastern Europe -- left many Americans confused as to what U.S. future policies should be.
For more than forty years, ever since the end of World War II, American policy overseas
had been fixed on containing communist expansion. The American worldview was quite
simple: there were two forces at work, one good and the other evil, and the United States
had the responsibility to use its influence and its power to combat the communist evil.
Containment had, in fact, worked, and it had also supplied a focus to American policy
that made for bipartisan support within the government and for popular understanding as
well. By the mid-1980s, most Americans believed that the best they could hope for would
be a detente, an understanding between the Soviet Union and the United States over what
would be the acceptable limits of power so that a nuclear war could be avoided. With that
scenario now outdated, what should be the basis for American foreign policy?
Secretary of State James Baker addressed that issue in a speech to the World Affairs
Council in March 1990, and the answer he proposed was simple and direct -- the United
States would make democracy the central value of its foreign policy. It would attempt, in
various ways, to foster democratic values abroad and to support the economic conditions
that would allow democracy to thrive. Any other policy, he implied, would be untrue to
all that the United States had valued since its founding.
For further reading: Walter LaFeber, America, Russia and the Cold War (1993 ed.);
Michael R. Beschloss and Strobe Talbott, At the Highest Levels: The Inside Story of the
End of the Cold War (1993); Geir Lundestad and Odd Arne Westad, eds., Beyond the
Cold War: New Dimensions in International Relations (1993).
DEMOCRACY AND FOREIGN POLICY
It is a privilege and an honor to address the World Affairs Council in Dallas. This group
is part of many such councils established throughout the United States with a great
purpose: to inform and to debate. In our rapidly changing world, that can be a tall order.
Yet democracy here and elsewhere ultimately depends upon an informed citizenry,
citizens able to ponder and then help set the course of international affairs.
Today, I would like to talk about our world, how we understand it, and what we are doing
to promote our ideals and our interests.
When President Bush took office a little over a year ago, he talked about a new breeze
blowing for freedom. That breeze has become a gale-force wind. Around the world, the
old dictatorships of left and right have been swept away, and the people have been heard.
Their wants are basic: freedom to think, freedom to speak, freedom to worship, freedom
to work. And all of their freedoms are bound up in the call for democracy -- the freedom
to choose one's own government.
We all have been surprised at how quickly the long-cherished democratic ideal has been
translated into the reality of free and fair elections. Ever since World War II, democratic
values have been shadowed by the threat of totalitarian aggression. Now, as the threat is
reduced and the shadow recedes, those values are bright and shining and out in the open.
Already a great, new debate -- actually a great, old debate -- has broken out, an argument
as old as our republic. Now that the adversaries of democracy are weaker, some say we
should retire, mission accomplished, to tend our problems at home. I am not among them.
In the new world struggling to be born, like the old world now rapidly passing away,
there is no substitute for American leadership.
Let me put it this way: Beyond containment lies democracy. The time of sweeping away
the old dictators is passing fast; the time of building up the new democracies has arrived.
That is why President Bush has defined our new mission to be the promotion and
consolidation of democracy. It is a task that fulfills both American ideals and American
interests.
I would like now to make five observations about both democracy and a democratic
foreign policy.
The first is that democracy means individual rights and individual responsibilities. With
all the talk about changing systems, architectures, processes, and structures, it would be
easy to overlook the individual. But the essence of democracy is to treat the individual's
rights and responsibilities as two sides of the same coin of freedom. Just as the individual
human being has ideal aspirations, he or she also has limits and imperfections. So the
process of democracy, as President Havel of Czechoslovakia recently pointed out, is an
endless journey in pursuit of our ideals -- a journey spurred on by the reality that life is
not always as just as we might want it to be.
In ancient times, searching for a perfect order, the philosopher Plato wanted rule by the
elite he called Guardians, a group specially trained in wisdom who could decide public
issues and guard public morality according to strict ideals. Democracy has a place for
wisdom and a place for ideals, but that place is in the hearts and minds and moral
character of the ordinary people. We -- all of us -- are the "Guardians" of democracy.
"Trust the people" is the motto of democracy, and "we the people" live by that motto.
Democracy is the aristocracy of individual excellence, and individual rights remain the
basis of our approach to would-be democracies.
My second observation about democracy is that it offers a unique political legitimacy.
Democracy's reliance upon the individual is reciprocated by the individual's consent to
the rule of democratic government. That government is, therefore, considered legitimate
in the most basic political sense -- both lawful and proper.
Unlike many other forms of government, democracy does not rely on a onetime grant of
consent. Consent is reaffirmed through regular, fair, and free elections -- the "ticket" for
the democratic journey. A democratic society also is characterized by the rule of law and
by tolerance of diversity, a tolerance that protects individual rights from abuse, whether
from an arbitrary minority or a tyrannical majority. Majority rule must uphold minority
rights.
There is another aspect to democracy of which we should be aware: its capacity for selfcorrection.
We know that all too often the ideal of democracy is not found in daily reality. Often in
our own country's history, the practice of public life has been at sharp variance with our
standards. Yet the reality is that in a democracy, the road to progress is never
permanently closed. There is a self-renewal, a self-corrective element in the democratic
process which allows us to overcome blunders and correct the course.
Because democracy enjoys such renewable legitimacy, it can operate not only to ensure
domestic progress but also to encourage international harmony. Free peoples cherishing
democratic values are unlikely to go to war with one another.
My third observation is that democracy does not stand alone. Geometry teaches us that
the triangle is the most solid configuration. The political geometry of successful
democracy should teach us that a free society must be upheld by economic progress and
basic security. War and poverty are the great opponents of democratic rules, democratic
tolerance, and individual rights.
Many of the recent democratic revolutions in Europe began when people understood at
last that economic progress depended on freedom in the workplace and freedom to own
property -- and that such freedoms in turn depended upon a government responsive to the
people. Dogmas, attempting to eliminate the entrepreneurial spirit while commanding the
production of wealth, produced neither bread nor freedom.
We must, therefore, build up the economic and security aspects of the new democracies
even as the political base is put into place. A people with hope for a better life, at peace
with themselves and their neighbors, is a people for whom democracy will be not just a
temporary experiment but a permanent course. A strategy of simply applauding elections
and then hoping for the best ignores the painful lessons of the past. Only a strategy that
buttresses democracy with economic reforms and greater international security can give
us the strength for the tough transitions that will transform the revolutions of 1989 into
the democracies of the 1990s.
My fourth observation is that American foreign policy abroad must reflect democratic
values. This may seem all too obvious. Yet, there are those who would have America, in
the name of its ideals, isolate itself from a world too often hostile to democracy. And
there are others who argue for a realpolitik that has a place only for economic or military
or political interests and leaves our values at home.
We can recognize in this dualism a little bit of ourselves. How often do we strive for the
ideal only to fall short? How frequently do we conclude after some self-serving action
that maybe it was not entirely the right thing to do?
As individuals, we succeed when we use each side of our nature to help the other, when
we do things in this world not for selfish reasons or because we are satisfied with the
status quo but in order to change it, guided by our ideals.
In my view, we must adopt the same approach to our foreign policy. America's ideals are
the conscience of our actions. Our power is the instrument to turn those ideals into reality.
Our foreign policy, our understanding of other nations, is the blueprint for the job.
As we enter a new era of democracy, the old arguments of idealism vs. realism must be
replaced by idealism plus realism. If we do not understand this, then we shall risk the loss
of enduring public support for our policies. I think history illustrates amply that the
American people will not support for long a policy that violates their sense of humane
values, no matter how it is justified as being in the national interest. I am equally
convinced that Americans will reject a policy based primarily on moral exhortation which
ignores our power to act. As we applaud the new trends toward democracy, we feel good.
But those trends are opportunities and challenges, not permanent facts. We have to do
more than feel good; we must do good.
My fifth observation is that a policy of democracy is a "force multiplier": a potent
instrument for rallying international action. A policy that draws upon our domestic values
and enjoys the support of the American people automatically makes our influence more
effective. But a policy centered on democracy is also a "force multiplier" in that we can
use it to engage our friends and allies behind a mutual purpose. It can give hope to those
peoples still suffering under dictatorships.
It would seem to be common sense for the United States to lead alliances of free market
democracies in Asia, Europe and the Americas in support of democracy and economic
liberty. We can use our common values to pool our strength, advancing everyone's
interests in a free and peaceful world. That is what we have tried to do in organizing
assistance to the countries of central and Eastern Europe. There and also in Central
America, we have urged our friends and allies to calibrate their actions along a
democratic standard, not just their immediate geopolitical interests narrowly understood.
We have done so because we believe that democracy and the national interests of the
democracies reinforce each other.
Still, the fact is that some people don't see it that way. Some people prefer a time when
the United States had to do it all alone. Others seem to believe that if we are not the
biggest contributors, if we do not micromanage every aid program, then somehow
America is no longer a leader.
Obviously, that is not our view. Let me tell you why.
The 1940s were a great time for American leadership. We had unsurpassed resources and
a world in ruin, and we rose to the challenge. We helped to put our allies on their feet and
to turn our former adversaries into friends. Now, thanks to these successful policies,
carried out by administrations of both parties, we have lots of help in dealing with the
world's problems. To work with our allies is not a sign of American weakness; it is proof
of our strength. And the strength should be guided by a wisdom attuned to our times, just
as the Americans of 45 years ago used both brain and brawn to deal with very different
circumstances. We can lead today even more effectively than we did then because
democracy is on the march.
These observations about democracy and our foreign policy are not speculative. They are
rather guideposts for practice, and they have played a major part both in our thinking and
in some of our recent foreign policy achievements.
I would cite as the first example recent events in Central America. When the President
took office, U.S. policy toward that important region -- our own neighborhood -- was in
trouble. It was the most divisive issue we faced. Congress and the executive branch had
failed to reach any lasting agreement on how to approach the problem, or for that matter,
even how to define it. The American people were divided, too -- an almost certain recipe
for failure.
The only way out of this tangle was to return to American principles. Early last year, the
President decided to define democracy as the regional objective and elections as the
means to achieve that result. In each case, this turned the focus where it belonged. In
Nicaragua, the Sandinistas' conduct of their society -- an outpost of oppression in a region
of democracies -- became the central issue, not the Nicaraguan Resistance. In Panama,
Gen. Noriega's brutal rejection of a free election verdict stripped him of his claim to
legitimate rule and began the difficult trek toward Panamanian democracy. Another free
election in El Salvador, conducted despite violence, gave President Cristiani the popular
mandate to pursue a negotiated settlement to the war and a chance to demonstrate a
serious approach to human rights.
An emphasis on democracy enabled us to cut the Gordian knot that prevented
bipartisanship. On March 24, 1989, a bipartisan accord was signed at the White House,
enabling Republicans and Democrats to join around a common purpose. Outside of
Washington, the American people could be rallied in support. The United States was
heard at last to be speaking with one voice. Directly as a result, the Congress voted
humanitarian aid for the Resistance though February 28, 1990.
We then took the bipartisan emphasis on democracy and approached the Central
American countries. The Esquipulas agreement expressed their wish for peace,
democracy, and the end of support for bloody revolutions in other countries. What was
lacking was an effective mechanism to turn the wish into reality. Then, at Tesoro Beach,
the Central American presidents agreed on a joint plan to be developed within 90 days to
demobilize the Resistance, and it was widely interpreted as a defeat for the United States
at the time. But the other side of the joint plan was a requirement that the Sandinista
government hold internationally supervised elections a year earlier than scheduled -February 25, 1990.
This provision helped us to convince our European allies that they should condition their
economic aid to Nicaragua on the holding of free and fair elections. They did. In April
1989, a donors' conference for Nicaragua was sponsored by Sweden. President Ortega
later admitted that he received only a small fraction of what he had hoped to get before
elections.
Finally, we were able to use all of these developments together to take a more effective
approach to the Soviet Union. We had the "force multiplier" of democracy to present the
Soviets with a growing international consensus on elections. We could and did argue that
if Moscow's aid were seen to be sabotaging legitimate governments -- whether a freely
elected democracy in El Salvador or the elections process in Nicaragua -- there would be
strong repercussions on overall U.S.-Soviet relations. And we were able to contrast the
Soviet feeding of conflict with their evident desire for a more cooperative relationship
dealing with regional problems. As a result, even before the elections, Moscow publicly
agreed to respect both the electoral process and its outcome.
We were prepared to make sure that the elections were as clean -- as free and fair -- as
possible. Congress supported the President's request for money to support election
activities, which enabled us to flood Nicaragua with international observers. The National
Endowment for Democracy also contributed funds shared by the Nicaraguan parties. We
considered that essential because it enabled the democratic opposition, UNO, to compete
on at least the minimal level against a Sandinista party utilizing the resources of the entire
state. Finally, we protested vigorously and pointed out clearly every instance of unfair
and arbitrary procedure. Democracy, we felt, was a fast-growing plant if only the
sunshine of publicity could expose those who would kill it at the root. The pressure was
on the Sandinistas to play it straight.
I recite all of these facts because I believe they set a context, a climate that was most
conducive to democracy in Nicaragua through the voting itself. The individual
Nicaraguan -- the individual upon whom democratic hopes depended -- knew that he or
she was not alone. Voting in a free and fair election was not a desperate, lonely act but a
step toward a better future.
Now that a democratic government has been elected in Nicaragua, we know that
Nicaragua's recovery from years of civil war and the blight of Marxist economics will be
costly and painful. There and in Panama, we must help to turn the new hopes into the
reality of progress. That is why the President has proposed a new $800 million fund for
democracy -- our part of a multilateral effort to put our neighbors back on their feet. This
is not charity. It is an investment in the democratic values we share with our neighbors.
For we have a broad vista -- stretching from Guatemala to Panama -- of new possibilities
for democratization, demilitarization, and development which offers a bright future for all
the peoples of the region. With our help and the help of other democracies, it can and will
be done.
My second example of how a democratic foreign policy works concerns central and
Eastern Europe. Freed of fear and fiercely determined to recover their dignity and their
hopes, the long-suffering peoples of those lands behind the Iron Curtain finally pulled it
down.
Last December, not long after the Berlin Wall was breached, I visited that divided city. I
took a good look through a newly chiseled hole in that ugly wall, and what I saw was a
great city striving to be reborn. And beyond it, old nations were alive with new hope. All
of that was captured by the simple word "democracy."
While in Prague a month ago, I talked about the consolidation of democracy throughout
the region. It was important for the peoples of central and Eastern Europe to know that
the challenges they faced were not theirs alone. We, too, have a challenge. We are
admired for our democratic values and for the success of our economic system. People
look to us for help -- not charity -- but the help that allows self-help. Training, advice,
and sharing our experience counts for more than money. We must be prepared to give it.
Our program of cooperation and assistance concentrates on three areas, not all of them
economic.
First, we will press the concept of free and regular elections. The President has proposed
that this be adopted as a program by the 35-nation Conference on Security and
Cooperation in Europe (CSCE). We have also offered and are sending election observers
as each central and Eastern European country takes its first democratic steps. The
objective here is to make democracy the legitimizing principle for all of Europe.
Second, we are working with our allies and the Soviet Union to reduce the arms and the
armies facing each other in Europe.
Third, we are extending economic support for the painful transition to free market
systems. This will be a very difficult task in societies just now beginning to dismantle
Marxist-Leninist economic systems and often lacking the basics of a free market. We
believe, however, that the United States, our allies in Europe and Japan, and international
economic institutions can work together successfully to help these countries achieve the
progress so long denied them. The purpose of all these efforts should be to provide a
healthy environment for the real motivator of long-lasting growth -- vigorous private
sector investment and development.
We are tying our assistance to our values and showing how our values can be of
assistance. Our support is to be measured by a single test: whether it advances democracy
and economic liberty.
I would add here a word about our policy of democracy and its impact on the Soviet
Union. We have an interest in perestroika which goes beyond geopolitics. If perestroika
results in a more democratic and open Soviet society, with individual rights and
economic progress, the impact on Soviet foreign policy for the long run will be highly
beneficial. Democracy in the Soviet Union is, in my view, the best guarantee of a
constructive Soviet approach to international problems.
The third and final case I would cite of democracy in action I call "breaking new ground."
It has been my argument throughout this speech that democracy serves both American
ideals and American interests. Furthermore, democracy is a practical tool of diplomacy,
not the only tool, but a particularly valuable one with which to rally support both here
and abroad for our foreign policy.
Democracy speaks to universal aspirations -- to use those famous old American words,
"regardless of race, creed, or color." I reject and I hope America always rejects the view
that democracy is for certain societies but has no place in Africa or Asia or South
America, or even in the Middle East. I say instead, remember the motto, "trust the
people."
Because we trust the people, not only here or in Europe or in Central America but
everywhere, we are using democracy and elections as valuable tools in helping to end
regional conflicts and to bring about national reconciliations. Let me cite briefly a few
examples.
-- In Namibia, whose independence celebrations I just attended, free and fair elections
were a key element in the settlement that freed Africa's last colony, ended a civil war, and
launched a new government with a democratic constitution. We believe that free and fair
elections can play a similar role in promoting national reconciliation in Angola and South
Africa.
-- In the Arab-Israeli conflict, we see elections in the occupied territories as a catalyst to
bring about a constructive Israeli-Palestinian dialogue that could lead to the peace both
peoples so badly need.
-- And in Cambodia, the five permanent members of the UN Security Council see a free
and fair election as the best way to resolve at last the disputed government of that tortured
land, giving the Cambodian people their long overdue chance to choose their own leaders.
Let me conclude with this thought. When I studied classics in college, I found to my
surprise that most of the ancient philosophers feared democracy. Those who study the
18th century arguments over our Constitution also will encounter this fear. It was a
lingering suspicion that the individual would be corrupted, that the ordinary man or
woman was simply not up to the task of self-government.
Our Founding Fathers overcame that fear and left to us a legacy of confidence in the
citizen that constitutes our greatest political and moral strength. Our foreign policy has
been at its best when it drew from that strength and made of our country a great force for
good in the world. Now, after hard years of defending democratic values, our original
confidence has been renewed.
Ordinary people are truly the heroes of our time. Ordinary people broke through the
Berlin Wall. Ordinary people turned out the dictators. Ordinary people voted for
democracy in Central America.
As once our Founding Fathers drew upon confidence in the citizens to build a new
democratic society, so now our foreign policy must build upon that same confidence to
build a newly democratic international society. That is our opportunity and our challenge.
With the help of every American, I am sure we will meet it.
Source: American Foreign Policy Current Documents 1990 (1991), 12-17.
PART X: A MORE INCLUSIVE AMERICA
The motto of the United States, E pluribus unum, means "out of many, one." From the
beginning, many different peoples have come to the United States, and most of them
quickly acculturated into American society. As early as 1790 the first census of the new
nation revealed that in Virginia, the most "English" of states, three out of ten people were
of German origin. On the American landscape numerous ethnic groups could be counted,
and a name such as O'Brien was as common in Boston as in Dublin. Words, foods and
customs from other countries all found their way into the American culture, enriching it
over the centuries. Oscar Handlin, the noted historian, began his classic study of
immigration, The Uprooted (1951), with the following observation: "Once I thought to
write a history of the immigrants in America. Then I discovered that the immigrants were
American history."
Not all immigrants came willingly, and descendants of the enslaved Africans brought to
the New World in chains have just recently begun to demand full acceptance into society.
Moreover, the old notion that immigrants and their children had to shed their "alien"
customs to become "real" Americans has recently given way to ethnic pride and the idea
that both the society and the ethnic group are enriched through pride in origin and some
retention of the "old ways."
But the process of inclusion has not always been smooth. Throughout American history
there were periods of intense nativism, in which those whose families had been in the
United States three or four generations attempted to keep out newcomers, or the majority
Protestants discriminated against Catholics and Jews, or Anglo-Saxons kept Orientals in
an inferior position. The gates of America, which had been wide open in the nineteenth
century, began to close early in the twentieth, although in the last few decades a more
liberal policy of accepting those fleeing persecution or seeking new opportunity has been
established.
Inclusion, however, applies not only to immigrants. As American society has become
more open and democratic, groups that traditionally had been assigned an inferior place
in society began demanding equal rights and full acceptance. Women, gays and lesbians,
Latinos, African Americans, Native Americans and others called for an expansion of the
democratic ideal to include them as well. "Multiculturalism" has become an important
and hotly debated concept in modern America, with its advocates demanding that all
sources of culture be given credit for their contributions, not just those that derived from
western Europe.
At times these debates have been shrill, even ugly, but they have contributed to the
democratic nature of American society. They are also uniquely American, because no
other nation on Earth has prided itself as the United States has on its ethnic and cultural
diversity.
BRADWELL V. ILLINOIS (1873)
Justice Bradley concurring in the opinion of the Court.
The civil law, as well as nature herself, has always recognized a wide difference in the
respective spheres and destinies of man and woman. Man is, or should be, woman's
protector and defender. The natural and proper timidity and delicacy which belongs to the
female sex evidently unfits it for many of the oc-cupations of civil life. The constitution
of the family organization, which is founded in the divine ordinance, as well as in the
nature of things, indicates the domestic sphere as that which properly belongs to the
domain and functions of womanhood. The harmony, not to say the identity, of interests
and views which belong, or should belong, to the family institution is repugnant to the
idea of a woman adopting a distinct and independent career from that of her husband. So
firmly fixed was this sentiment in the founders of the common law that it became a
maxim of that system of jurisprudence that a woman had no legal existence separate from
her husband, who was regarded as her head and representative in the social state; and,
notwithstanding some recent modifications of this civil status, many of the special rules
of law flowing from and dependent upon this cardinal principle still exist in full force in
most States. One of these is, that a married woman is incapable, without her husband's
consent, of making contracts which shall be binding on her or him. This very incapacity
was one circumstance which the Supreme Court of Illinois deemed important in
rendering a married woman incompetent fully to perform the duties and trusts that belong
to the office of an attorney and counsellor.
It is true that many women are unmarried and not affected by any of the duties,
complications, and incapacities arising out of the married state, but these are exceptions
to the general rule. The paramount destiny and mission of woman are to fulfil the noble
and benign offices of wife and mother. This is the law of the Creator. And the rules of
civil society must be adapted to the general constitution of things, and cannot be based
upon exceptional cases.
The humane movements of modern society, which have for their object the multiplication
of avenues for women's advancement, and of occupations adapted to her condition and
sex, have my heartiest concurrence. But I am not prepared to say that it is one of her
fundamental rights and privileges to be admitted into every office and position, including
those which require highly special qualifications and demanding special responsibilities.
In the nature of things it is not every citizen of every age, sex, and condition that is
qualified for every calling and position. It is the prerogative of the legislator to prescribe
regulations founded on nature, reason, and experience for the due admission of qualified
persons to professions and callings demanding special skill and confidence. This fairly
belongs to the police power of the State; and, in my opinion, in view of the peculiar
characteristics, destiny, and mission of woman, it is within the province of the legislature
to ordain what offices, positions, and callings shall be filled and discharged by men, and
shall receive the benefit of those energies and responsibilities, and that decision and
firmness which are presumed to predominate in the sterner sex.
For these reasons I think that the laws of Illinois now complained of are not obnoxious to
the charge of abridging any of the privileges and immunities of citizens of the United
States.
Source: 16 Wallace 130 (1873).
"THE NEW COLOSSUS" (1883)
Emma Lazarus
America had always been a magnet to Europeans, at first primarily from the British Isles,
and then from the continent. But by the middle of the nineteenth century, improvements
in travel, combined with political upheaval and economic difficulties, led to a significant
increase in the number of people crossing the Atlantic to seek opportunity in the United
States. Between 1820 and 1920, approximately 34 million persons immigrated to the
United States, three-fourths of them staying permanently.
For many of these newcomers, their first glimpse of America was the Statue of Liberty in
New York harbor. The statue, sculpted by Frédéric Auguste Bartholdi,
had been conceived of as a gift of friendship from the people of France marking the two
nations' commitment to liberty. France provided $400,000 for the 151-foot statue, and a
fundraising drive in the United States netted $270,000 for the 89-foot pedestal. Ironically,
none of the speeches at the dedication of the monument in October 1886 even mentioned
immigrants; President Grover Cleveland spoke about Franco-American friendship and
American ideals.
But the Jewish American poet Emma Lazarus saw the statue as a beacon to the world. A
poem she wrote to help raise money for the pedestal, and which is carved on that pedestal,
captured what the statue came to mean to the millions who migrated to the United States
seeking freedom, and who have continued to come unto this day.
As many modern scholars have noted, these words have an air of condescension, but the
fact is that many native-born Americans and immigrants at the time did see themselves
just as Lazarus portrayed them -- wretched, nameless, "tempest-tost." For them Europe
meant poverty and persecution, and America meant democracy and opportunity. "Other
lands," wrote the Polish emigré Henry Sienkiewicz, "grant only asylum; this land
recognizes the immigrant as a son and grants him rights." When they were "sickened at
last of poverty, bigotry and kings," wrote another immigrant, "there was always
America!"
For further reading: Oscar Handlin, The Uprooted (1951; rev. ed. 1973); John Bodnar,
The Transplanted (1985); Philip Taylor, The Distant Magnet (1971); John Higham,
Strangers in the Land (1955); Leonard Dinnerstein and David Reimers, Ethnic Americans:
A History of Immigration and Assimilation (1975).
"THE NEW COLOSSUS"
Not like the brazen giant of Greek fame, With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand A mighty woman with a torch, whose
flame Is the imprisoned lightning, and her name Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command The air-bridged harbor that twin
cities frame. "Keep, ancient lands, your storied pomp!" cries she With silent lips. "Give
me your tired, your poor, Your huddled masses yearning to breathe free, The wretched
refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp
beside the golden door!"
Source: Emma Lazarus, The Poems of Emma Lazarus, vol.1 (1889), 2
YICK WO V. HOPKINS (1886)
As early as 1820, Chinese were immigrating to California, and by 1870 over 49,000
Chinese lived in the state. That number increased to over 75,000 by 1880, amounting to
nearly 10 percent of California's population. Of this Chinese community, 40 percent, or
about 30,000 people, lived in the San Francisco Bay area. Many Caucasian and Hispanic
Californians did not like this influx of Asians, and as a result both the state as well as
many localities began passing laws that specifically discriminated against them. The first
anti-Chinese law passed was the Foreign Miner's License Tax of 1853, which placed a
special burden on Chinese miners. The pace of these discriminatory laws increased in the
1870s, leading to the banning of Chinese from certain occupations and the adoption of
anti-Chinese provisions in the new state constitution of 1877.
Because of the many restrictions on them, Chinese tended to concentrate in particular
businesses; they constituted 97 percent of all persons working in cigar-making in the San
Francisco area, 84 percent of the boot and shoemakers, 88 percent of the garment
manufacturers and 89 percent of the laundry workers. Chinese did not go into the laundry
business by choice, and once there had to deal with hostile non-Chinese customers. The
general public read many lurid stories denouncing laundries as fronts for immoral
activities such as opium smoking and prostitution, although in truth most laundries were
small family enterprises.
A San Francisco ordinance prohibited operating a laundry located in a wooden building
without the consent of the Board of Supervisors; laundries in brick or stone buildings
needed no comparable approval. By itself the law seemed a reasonable exercise of the
state's police power, since the wooden buildings were vulnerable to the many fires that
plagued San Francisco and other nineteenth-century cities. At the time, over 95 percent of
the 320 laundries in the city were located in wooden buildings, and of these, two-thirds
had Chinese owners.
The Board of Supervisors granted permission to operate laundries in wooden buildings to
all but one of the non-Chinese owners, but none to the 200 Chinese applicants. Yick Wo,
a Chinese alien who had operated a laundry in the city for many years, was refused a
permit. When he continued to run the business, he was arrested and convicted under the
ordinance.
The Supreme Court reversed the conviction, not because the ordinance specifically
discriminated against Chinese -- it did not -- but because it was administered in a
discriminatory fashion. Yick Wo v. Hopkins is the first instance of the Court inferring the
existence of discrimination from data about a law's application, a technique that would be
used again in the 1960s to strike down statutes discriminating against African Americans
For further reading: G. Barth, Bitter Strength: A History of the Chinese in the United
States, 1850-1870 (1964); A. Saxton, The Indispensable Enemy: Labor and the AntiChinese Movement in California (1971); and H.T. Shih-shan, The Chinese Experience in
America (1986).
YICK WO V. HOPKINS
Justice Matthews delivered the opinion of the court.
In the case of the petitioner, brought here by writ of error to the Supreme Court of
California, our jurisdiction is limited to the question, whether the plaintiff in error has
been denied a right in violation of the Constitution, laws, or treaties of the United States....
We are consequently constrained, at the outset, to differ from the Supreme Court of
California upon the real meaning of the ordinances in question. That court considered
these ordinances as vesting in the board of supervisors a not unusual discretion in
granting or withholding their assent to the use of wooden building as laundries, to be
exercised in reference to the circumstances of each case, with a view to the protection of
the public against the dangers of fire. We are not able to concur in that interpretation of
the power conferred upon the supervisors. There is nothing in the ordinances which
points to such a regulation of the business of keeping and conducting laundries. They
seem intended to confer, and actually do confer, not a discretion to be exercised upon a
consideration of the circumstances of each case, but a naked and arbitrary power to give
or withhold consent, not only as to places, but as to persons. So that, if an applicant for
such consent, being in every way a competent and qualified person, and having complied
with every reasonable condition demanded by any public interest, should, failing to
obtain the requisite consent of the supervisors to the prosecution of his business, apply
for redress by the judicial process of mandamus, to require the supervisors to consider
and act upon his case, it would be a sufficient answer for them to say that the law had
conferred upon them authority to withhold their assent, without reason and without
responsibility. The power given to them is not confided to their discretion in the legal
sense of that term, but is granted to their mere will. It is purely arbitrary, and
acknowledges neither guidance nor restraint....
The ordinance drawn in question in the present case...does not prescribe a rule and
conditions for the regulation of the use of property for laundry purposes, to which all
similarly situated may conform. It allows without restriction the use for such purposes of
buildings of brick or stone; but, as to wooden buildings, constituting nearly all those in
previous use, it divides the owners or occupiers into two classes, not having respect to
their personal char-acter and qualifications for the business, nor the situation and nature
and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of
which are those who are permitted to pursue their industry by the mere will and consent
of the supervisors, and on the other those from whom that consent is withheld, at their
mere will and pleasure. And both classes are alike only in this, that they are tenants at
will, under the supervisors, of their means of living. The ordinance, therefore, also differs
from the not unusual case, where discretion is lodged by law in public officers or bodies
to grant or withhold licens-es to keep taverns, or places for the sale of spirituous liquors,
and the like, when one of the conditions is that the applicant shall be a fit person for the
exercise of the privilege, because in such cases the fact of fitness is submitted to the
judgement of the officer, and calls for the exercise of a discretion of a judicial nature.
The rights of the petitioners, as affected by the proceedings of which they complain, are
not less, because they are aliens and subjects of the Emperor of China....
The Fourteenth Amendment to the Constitution is not confined to the protection of
citizens. It says: "Nor shall any State deprive any person of life, liberty, or property
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws." These provisions are universal in their application, to all persons
within the territorial jurisdiction, without regard to any differences of race, of color, or of
nationality; and the equal protection of the laws is a pledge of the protection of equal
laws. It is accordingly enacted by §1977 of the Revised Statutes, that "all persons
within the jurisdiction of the United States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full
and equal benefit of all law and proceedings for the security of persons and property as is
enjoyed by white citizens and shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other." The questions we have to consider
and decide in these cases, therefore, are to be treated as involving the rights of every
citizen of the United States equally with those of the strangers and aliens who now
invoke the jurisdiction of the court.
It is contended on the part of the petitioners, that the ordinances for violations of which
they are severely sentenced to imprisonment, are void on their face, as being within the
prohibitions of the Fourteenth Amendment; and in the alternative, if not so, that they are
void by reason of their administration, operating unequally, so as to punish in the present
petitioners what is permit-ted to others as lawful, without any distinction of
circumstances -- an unjust and illegal discrimination, it is claimed, which, though not
made expressly by the ordinances is made possible by them....
to the actual, and pass upon the validity of the ordinances complained of, as tried merely
by the opportunities which their terms afford, of unequal and unjust discrimination in
their administration. For the cases present the ordinances in actual operation, and the
facts shown establish an administration directed so exclusively against a particular class
of persons as to warrant and require the conclusion, that, whatever may have been the
intent of the ordinances as adopted, they are applied by the public authorities charged
with their administration, and thus representing the State itself, with a mind so unequal
and oppressive as to amount to the practical denial by the State of that equal protection of
the laws which is secured to the petitioners, as to all other persons, by the broad and
benign provisions of the Fourteenth Amendment to the Constitution of the United States.
Though the law itself be fair on its face and impartial in appearance, yet, if it is applied
and adminis-tered by public authority with an evil eye and an unequal hand, so as
practicallyto make unjust and illegal discriminations between persons in similar
circumstances, material to their rights, the denial of equal justice is still within the
prohibition of the Constitution....
The present cases, as shown by the facts disclosed in the record, are within this class. It
appears that both petitioners have complied with every requisite, deemed by the law or by
the public officers charged with its administration, necessary for the protection of
neighboring property from fire, or as a precaution against injury to the public health. No
reason whatever, except the will of the supervisors, is assigned why they should not be
permitted to carry on, in the accustomed manner, their harmless and useful occupation,
on which they depend for a livelihood. And while this consent of the supervisors is
withheld from them and from two hundred others who have also petitioned, all of whom
happen to be Chinese subjects, eighty others, not Chinese subjects, are permitted to carry
on the same business under similar conditions. The fact of this discrimination is admitted.
No reason for it is shown, and the conclusion cannot be resisted, that no reason for it
exists except hostility to the race and nationality to which the petitioners belong, and
which in the eye of the law is not justified. The discrimination is, therefore, illegal, and
the public administration which enforces it is a denial of the equal protection of the laws
and a violation of the Fourteenth Amendment of the Constitution. The imprisonment of
the petitioners is, therefore, illegal, and they must be discharged.
Source: 118 U.S. 356 (1886).
KOREMATSU V. UNITED STATES (1944)
Prejudice against immigrants from Asia had been longstanding on the West Coast when
World War II broke out following the Japanese attack on Pearl Harbor. Within a few
weeks the demand spread that Japanese Americans, both naturalized citizens as well as
those born in the United States, any of whom might be "saboteurs" or "spies," be
removed from the West Coast before the Japanese invaded. The fact that no proof existed
that a single one of these people constituted a threat to the United States made no
difference. Even the respected columnist Walter Lippmann informed his readers that
"nobody's constitutional rights include the right to reside and do business on a battlefield.
There is plenty of room elsewhere for him to exercise his rights."
On February 19, 1942, President Roosevelt signed Executive Order 9066 authorizing the
Secretary of War to designate parts of the country as "military areas" from which any and
all persons might be excluded, and in which travel restrictions might be imposed. A few
weeks later General John L. DeWitt, in charge of the Western Defense Command,
designated the entire Pacific coast as a military area because of its susceptibility to attack.
Curfews were established, and Japanese Americans were at first prohibited from leaving
the area, and then from being in the area. The only way Japanese Americans could
comply with these contradictory orders was to submit to evacuation to relocation centers
in the interior.
The relocation program, in which 110,000 men, women and children were sent to what
were in essence prison camps, constituted the most serious invasion of individual rights
by the federal government in the nation's history. The entire operation proceeded on the
racist assumption that anyone of Japanese ancestry was a traitor.
In wartime, the old saying goes, law is silent, and the Supreme Court, which had only
recently begun to play a stronger role in protecting minority rights, was loath to interfere
with what the administration considered a necessary war measure. Three cases testing the
constitutionality of the evacuation orders were heard by the Court. In the first case,
Hirabayashi v. United States (1943), the Court sustained the legitimacy of the curfew, but
evaded ruling on the wider implications of relocation.
In the second case, Korematsu v. United States, the Court could no longer ignore the core
issue of whether loyal citizens could be summarily relocated to detention camps solely on
the basis of their race. Although a majority of the Court agreed with Justice Black's view
that military necessity justified the relocation, three members of the Court, Frank Murphy,
Owen J. Roberts and Robert H. Jackson, dissented. Justice Murphy's dissent, which most
bluntly dealt with what he termed a "legalization of racism," is included here.
On the same day, the Court unanimously authorized a writ of habeas corpus for Mitsuye
Endo, a citizen whose loyalty had been clearly established. The Court's rulings in
Hirabayashi and Korematsu were criticized by many civil libertarians and scholars from
the start, and there has been a general condemnation of them ever since.
After the war ended, the internment haunted the nation's conscience as well. In 1948
Congress took the first step in making amends, enacting the Japanese American
Evacuation Claims Act to provide some monetary compensation to those who had lost
homes and businesses because of the order. In 1980, Congress again opened the
internment issue, and this time a stream of witnesses testified, many of them for the first
time, of the hardships and psychological trauma they had suffered. The resulting report,
Personal Justice Denied (1983), condemned the removal as unjustified by military
necessity, and also concluded that the Supreme Court decisions had been "overruled in
the court of history."
For further reading: Peter Irons, Justice at War (1983); Morton Grodzins, Americans
Betrayed: Politics and the Japanese Evacuations (1949); Commission on Wartime
Relocation, Personal Justice Denied (1983).
KOREMATSU V. UNITED STATES
Justice Black delivered the opinion of the Court.
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of
a single racial group are immediately suspect. That is not to say that all such restrictions
are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.
Pressing public necessity may sometimes justify the existence of such restrictions; racial
antagonism never can....
Exclusion of those of Japanese origin was deemed necessary because of the presence of
an unascertained number of disloyal members of the group, most of whom we have no
doubt were loyal to this country. It was because we could not reject the finding of the
military authorities that it was impossible to bring about an immediate segregation of the
disloyal from the loyal that we sustained the validity of the curfew order as applying to
the whole group. In the instant case, temporary exclusion of the entire group was rested
by the military on the same ground. The judgement that exclusion of the whole group was
for the same reason a military imperative answers the contention that the exclusion was in
the nature of group punishment based on antagonism to those of Japanese origin. That
there were members of the group who retained loyalties in Japan has been confirmed by
investigations made subsequent to the exclusion. Approximately five thousand American
citizens of Japanese ancestry refused to swear unqualified allegiance to the United States
and to renounce allegiance to the Japanese Emperor, and several thousand evacuees
requested repatriation to Japan.
We uphold the exclusion order as of the time it was made and when the petitioner
violated it.... In doing so, we are not unmindful of the hardships imposed by it upon a
large group of American citizens.... But hardships are part of war, and war is an
aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of
war in greater or lesser measure. Citizenship has its responsibilities as well as its
privileges, and in time of war the burden is always heavier. Compulsory exclusion of
large groups of citizens from their homes, except under circumstances of direct
emergency and peril, is inconsistent with our basic governmental institutions. But when
under conditions of modern warfare our shores are threatened by hostile forces, the power
to protect must be commensurate with the threatened danger....
It is said that we are dealing here with the case of imprisonment of a citizen in a
concentration camp solely because his ancestry, without evidence or inquiry concerning
his loyalty and good disposition towards the United States. Our task would be simple, our
duty clear, were this a case involving the imprisonment of a loyal citizen in a
concentration camp because of racial prejudice. Regardless of the true nature of the
assembly and relocation centers -- and we deem it unjustifiable to call them concentration
camps with all the ugly connotations that term implies -- we are dealing specifically with
nothing but an exclusion order. To cast this case into outlines of racial prejudice, without
reference to the real military dangers which were presented, merely confuses the issue.
Korematsu was not excluded from the Military Area because of hostility to him or his
race. He was excluded because we are at war with the Japanese Empire, because the
properly constituted military authorities feared an invasion of our West Coast and felt
constrained to take proper security measures, because they decided that the military
urgency of the situation demanded that all citizens of Japanese ancestry be segregated
from the West Coast temporarily, and finally, because Congress, reposing its confidence
in this time of war in our military leaders -- as inevitably it must -- determined that they
should have the power to do just this. There was evidence of disloyalty on the part of
some, the military authorities considered that the need for action was great, and time was
short. We cannot -- by availing ourselves of the calm perspective of hindsight -- now say
that at that time these actions were unjustified.
Justice Murphy, dissenting.
This exclusion of "all persons of Japanese ancestry, both alien and non-alien," from the
Pacific Coast area on a plea of military necessity in the absence of martial law ought not
to be approved. Such exclusion goes over "the very brink of constitutional power" and
falls into the ugly abyss of racism.
In dealing with matters relating to the prosecution and progress of a war, we must accord
great respect and consideration to the judgments of the military authorities who are on the
scene and who have full knowledge of the military facts. The scope of their discretion
must, as a matter of necessity and common sense, be wide. And their judgments ought
not to be overruled lightly by those whose training and duties ill-equip them to deal
intelligently with matters so vital to the physical security of the nation.
At the same time, however, it is essential that there be definite limits to military
discretion, especially where marital law has not been declared. Individuals must not be
left impoverished of their constitutional rights on plea of military necessity that has
neither substance nor support....
That this forced exclusion was the result in good measure of this erroneous assumption of
racial guilt rather than bona fide military necessity is evidenced by the Commanding
General's Final Report on the evacuation from the Pacific Coast area. In it he refers to all
individuals of Japanese descents as "subversive," as belonging to "an enemy race" whose
"racial strains are undiluted," and as constituting "over 112,000 potential enemies ...at
large today" along the Pacific Coast. In support of this blanket condemnation of all
persons of Japanese descent, however, no reliable evidence is cited to show that such
individuals were generally disloyal, or had generally so conducted themselves in this area
as to constitute a special menace to defense installations or war industries, or had
otherwise by their behavior furnished reasonable ground for their exclusion as a group.
Justification for the exclusion is sought, instead, mainly upon questionable racial and
sociological grounds not ordinarily within the realm of expert military judgment,
supplemented by certain semi-military conclusions drawn from an unwarranted use of
circumstantial evidence....
No one denies, of course, that there were some disloyal persons of Japanese descent on
the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal
activities have been engaged in by many persons of German, Italian and even more
pioneer stock in our country. But to infer that examples of individual disloyalty prove
group disloyalty and justify discriminatory action against the entire group is to deny that
under our system of law individual guilt is the sole basis for deprivation of rights.... To
give constitutional sanction to that inference in this case, however well-intentioned may
have been the military command on the Pacific Coast, is to adopt one of the cruelest of
the rationales used by our enemies to destroy the dignity of the individual and to
encourage and open the door to discriminatory actions against other minority groups in
the passions of tomorrow....
I dissent, therefore, from this legalization of racism. Racial discrimination in any form
and in any degree has no justifiable part whatever in our democratic way of life. It is
unattractive in any setting but it is utterly revolting among a free people who have
embraced the principles set forth in the Constitution of the United States. All residents of
this nation are kin in some way by blood or culture to a foreign land. Yet they are
primarily and necessarily a part of the new and distinct civilization of the United States.
They must accordingly be treated at all times as the heirs of the American experiment and
as entitled to all the rights and freedoms guaranteed by the Constitution.
Source: 323 U.S. 214 (1944).
ADDRESS TO SOUTHERN BAPTIST LEADERS
(1960)
John F. Kennedy
The Protestant immigrants to the New World brought many things in their baggage,
including a deep-seated distrust of Roman Catholicism. Although Catholics had been
among the early settlers of the New World, they had been a minority in the thirteen
colonies that eventually became the United States. Not until significant numbers of
Catholics began migrating to the United States in the mid-nineteenth century did antiCatholicism emerge as a potent, and ugly, political and social phenomenon.
Although Irish Catholics began to play a major role in local and state politics in the latter
nineteenth century, the first Catholic to seek a national office was the popular governor of
New York, Alfred Emanuel Smith, who was the Democratic nominee for president in
1928. Anti-Catholic prejudice, the fear that a Catholic president would "take orders" from
the Pope, insured Smith's defeat. Methodist Bishop Adna Leonard declared: "No
Governor can kiss the papal ring and get within gunshot of the White House." Even
liberal Protestants were concerned. The Christian Century declared it could not "look
with unconcern upon the seating of a representative of an alien culture, of a medieval,
Latin mentality, of an undemocratic hierarchy and of a foreign potentate in the great
office of the President of the United States."
Smith's defeat at the polls seemed to foreclose a Catholic from seeking the White House,
until John F. Kennedy captured the Democratic nomination in 1960. Much to his dismay,
he discovered that many southern Protestant groups still believed in old canards about
every Catholic having to obey the Pope's commands unquestioningly. He finally decided
to try to defeat the issue by meeting it head-on, and on September 12, 1960, he delivered
the following statement before the Greater Houston Ministerial Association.
There, according to one of his biographers, "he knocked religion out of the campaign as
an intellectually respectable issue." Anti-Catholicism, of course, could not be eradicated
that easily, but Kennedy's meeting the issue forthrightly limited the damage to those
whose prejudices would never respond to reason. And with his election that November,
barriers to Catholics in American politics melted away.
For further reading: T. H. White, The Making of the President 1960 (1961).
ADDRESS TO SOUTHERN BAPTIST LEADERS
I am grateful for your generous invitation to state my views.
While the so-called religious issue is necessarily and properly the chief topic here tonight,
I want to emphasize from the outset that I believe that we have far more critical issues in
the 1960 election: the spread of Communist influence, until it now festers only ninety
miles off the coast of Florida -- the humiliating treatment of our President and Vice
President by those who no longer respect our power -- the hungry children I saw in West
Virginia, the old people who cannot pay their doctor's bills, the families forced to give up
their farms -- an America with too many slums, with too few schools, and too late to the
moon and outer space.
These are the real issues which should decide this campaign. And they are not religious
issues -- for war and hunger and ignorance and despair know no religious barrier.
But because I am a Catholic and no Catholic has ever been elected President, the real
issues in this campaign have been obscured -- perhaps deliberately, in some quarters less
responsible than this. So it is apparently necessary for me to state once again -- not what
kind of church I believe in for that should be important only to me, but what kind of
America I believe in.
I believe in an America where the separation of church and state is absolute -- where no
Catholic prelate would tell the President (should he be a Catholic) how to act and no
Protestant minister would tell his parishioners for whom to vote -- where no church or
church school is granted any public funds or political preference -- and where no man is
denied public office merely because his religion differs from the President who might
appoint him or the people who might elect him.
I believe in an America that is officially neither Catholic, Protestant nor Jewish -- where
no public official either requests or accepts instructions on public policy from the Pope,
the National Council of Churches or any other ecclesiastical source -- where no religious
body seeks to impose its will directly or indirectly upon the general populace or the
public acts of its officials -- and where religious liberty is so indivisible that an act against
one church is treated as an act against all.
For, while this year it may be a Catholic against whom the finger of suspicion is pointed,
in other years it has been, and may someday be again, a Jew -- or a Quaker -- or a
Unitarian -- or a Baptist. It was Virginia's harassment of Baptist preachers, for example,
that led to Jefferson's statute of religious freedom. Today, I may be the victim -- but
tomorrow it may be you -- until the whole fabric of our harmonious society is ripped
apart at a time of great national peril.
Finally, I believe in an America where religious intolerance will someday end -- where
all men and all churches are treated as equal -- where every man has the same right to
attend or not to attend the church of his choice -- where there is no Catholic vote, no antiCatholic vote, no bloc voting of any kind -- and where Catholics, Protestants and Jews,
both the lay and the pastoral level, will refrain from those attitudes of disdain and
division which have so often marred their works in the past, and promote instead the
American ideal of brotherhood.
That is the kind of America in which I believe. And it represents the kind of Presidency
in which I believe -- a great office that must be neither humbled by making it the
instrument of any religious group, nor tarnished by arbitrarily withholding it, its
occupancy from the members of any religious group. I believe in a President whose
views on religion are his own private affair, neither imposed upon him by the nation or
imposed by the nation upon him as a condition to holding that office.
I would not look with favor upon a President working to subvert the First Amendment's
guarantees of religious liberty (nor would our system of checks and balances permit him
to do so). And neither do I look with favor upon those who would work to subvert Article
VI of the Constitution by requiring a religious test -- even by indirection -- for if they
disagree with that safeguard, they should be openly working to repeal it.
I want a chief executive whose public acts are responsible to all and obligated to none -who can attend any ceremony, service or dinner his office may appropriately require him
to fulfill -- and whose fulfillment of his Presidential office is not limited or conditioned
by any religious oath, ritual or obligation.
This is the kind of America I believe in -- and this is the kind of America I fought for in
the South Pacific and the kind my brother died for in Europe. No one suggested then that
we might have a "divided loyalty," that we did "not believe in liberty or that we belonged
to a disloyal group that threatened "the freedoms for which our forefathers died."
And in fact this is the kind of America for which our forefathers did die when they fled
here to escape religious test oaths, that denied office to members of less favored churches,
when they fought for the Constitution, the Bill of Rights, the Virginia Statute of Religious
Freedom -- and when they fought at the shrine I visited today -- the Alamo. For side by
side with Bowie and Crockett died Fuentes and McCafferty and Bailey and Bedillio and
Carey -- but no one knows whether they were Catholics or not. For there was no religious
test there.
I ask you tonight to follow in that tradition, to judge me on the basis of fourteen years in
the Congress -- on my declared stands against an ambassador to the Vatican, against
unconstitutional aid to parochial schools, and against any boycott of the public schools
(which I attended myself) -- and instead of doing this do not judge me on the basis of
these pamphlets and publications we have all seen that carefully select quotations out of
context from the statements of Catholic Church leaders, usually in other countries,
frequently in other centuries, and rarely relevant to any situation here -- and always
omitting of course, that statement of the American bishops in 1948 which strongly
endorsed church-state separation.
I do not consider these other quotations binding upon my public acts -- why should you?
But let me say, with respect to other countries, that I am wholly opposed to the state
being used by any religious group, Catholic or Protestant, to compel, prohibit or
prosecute the free exercise of any other religion. And that goes for any persecution at any
time, by anyone, in any country.
And I hope that you and I condemn with equal fervor those nations which deny it to
Catholics. And rather than cite the misdeeds of those who differ, I would also cite the
record of the Catholic Church in such nations as France and Ireland -- and the
independence of such statesmen as de Gaulle and Adenauer.
But let me stress again that these are my views -- for, contrary to common newspaper
usage, I am not the Catholic candidate for President [but the candidate] who happens also
to be a Catholic.
I do not speak for my church on public matters -- and the church does not speak for me.
Whatever issue may come before me as President, if I should be elected -- on birth
control, divorce, censorship, gambling, or any other subject -- I will make my decision in
accordance with these views, in accordance with what my conscience tells me to be in the
national interest, and without regard to outside religious pressure or dictate. And no
power or threat of punishment could cause me to decide otherwise.
But if the time should ever come -- and I do not concede any conflict to be remotely
possible -- when my office would require me to either violate my conscience, or violate
the national interest, then I would resign the office, and I hope any other conscientious
public servant would do likewise.
But I do not intend to apologize for these views to my critics of either Catholic or
Protestant faith, nor do I intend to disavow either my views or my church in order to win
this election. If I should lose on the real issues, I shall return to my seat in the Senate
satisfied that I tried my best and was fairly judged.
But if this election is decided on the basis that 40,000,000 Americans lost their chance of
being President on the day they were baptized, then it is the whole nation that will be the
loser in the eyes of Catholics and non-Catholics around the world, in the eyes of history,
and in the eyes of our own people.
But if, on the other hand, I should win this election, I shall devote every effort of mind
and spirit to fulfilling the oath of the Presidency -- practically identical, I might add with
the oath I have taken for fourteen years in the Congress. For, without reservation, I can,
and I quote "solemnly swear that I will faithfully execute the office of President of the
United States and will preserve, protect, and defend the Constitution so help me God."
Source: New York Times, September 13, 1960.
GIDEON V. WAINWRIGHT (1963)
Winston Churchill once said that the true measure of a civilized society is how it treats
people accused of crimes. Although the Bill of Rights included a number of protections
for people accused of crime, many of these guarantees went unenforced in state courts,
which were held to be outside the reach of the federal Bill of Rights. This policy began to
change in the 1930s, and during the 1960s was transformed with almost breathtaking
speed by the Supreme Court headed by Earl Warren.
The American right to have assistance of counsel in all criminal cases marked a
significant departure from the earlier English practice, which allowed lawyers only in
some misdemeanor cases. In ordinary felony cases Great Britain did not permit counsel at
all until 1836, although judges evidently often bent this rule. Twelve of the original
thirteen states rejected the English doctrine, and extended the right to have counsel to all
criminal cases. Although the Sixth Amendment, which guarantees the right to counsel,
makes no reference to providing lawyers for poor people, the federal government began
the practice of appointing lawyers in serious cases in the nineteenth century, and a
number of states also provided counsel for indigents in felony trials in the twentieth
century.
In 1932, in a famous case entitled Powell v. Alabama, the Court had held that the right to
a lawyer was an essential safeguard of liberty, but it left it to the states to determine just
how far this right extended. In Betts v. Brady (1942), the justices ruled that whether a
lawyer was required would depend upon the circumstances in each case. In some
circumstances, the Court held a lawyer was essential to a fair trial; in others a lawyer
might not be needed.
For the next twenty years the Court heard many cases, and in nearly all of them ruled that
a lawyer was in fact necessary. By the early 1960s a majority of the Court felt the time
had come to jettison the Betts rule and extend the Sixth Amendment right to counsel to
all persons accused of crime. That ruling came in Gideon v. Wainwright.
The whole rationale behind this and other Court rulings in the 1960s was the belief that
the exercise of constitutional rights ought not to depend on a person's wealth or education.
In terms of this section, the Court opened up the criminal justice system, made it more
democratic, and permitted even people accused of crimes, perhaps the most despised
group in a society, to share fully in what the Constitution promised to all Americans,
basic liberties to ensure that they received a fair trial.
For further reading: Anthony Lewis, Gideon's Trumpet (1964); A.E. Dick Howard, ed.,
Criminal Justice in Our Time (1965); Fred Graham, The Due Process Revolution (1970).
GIDEON V. WAINWRIGHT
Justice Black delivered the opinion of the Court.
Petitioner was charged in a Florida state court with having broken and entered a
poolroom with intent to commit a misdemeanor. This offense is a felony under Florida
law. Appearing in court without funds and without a lawyer, petitioner asked the court to
appoint counsel for him, whereupon the following colloquy took place:
The Court: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this
case. Under the laws of the State of Florida, the only time the Court can appoint Counsel
to represent a Defendant is when that person is charged with a capital offense. I am sorry,
but I will have to deny your request to appoint Counsel to defend you in this case.
The Defendant: The United States Supreme Court says I am entitled to be represented by
Counsel.
Put to trial before a jury, Gideon conducted his defense about as well as could be
expected from a layman. He made an opening statement to the jury, cross-examined the
State's witnesses, presented witnesses in his own defense, declined to testify himself, and
made a short argument "emphasizing his innocence to the charge contained in the
information filed in this case." The jury returned a verdict of guilty, and petitioner was
sentenced to serve five years in the state prison. Later, petitioner filed in the Florida
Supreme Court this habeas corpus petition attacking his conviction and sentence on the
ground that the trail court's refusal to appoint counsel for him denied him rights
"guaranteed by the Constitution and the Bill of Rights by the United States Government."
Treating the petition for habeas corpus as properly before it, the State Supreme Court,
"upon consideration thereof" but without an opinion, denied all relief. Since 1942, when
Betts v. Brady was decided by a divided Court, the problem of a defendant's federal
constitutional right to counsel in a state court has been a continuing source of controversy
and litigation in both state and federal courts. To give this problem another review here,
we granted certiorari....
The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the
right...to have the Assistance of Counsel for his defense." We have construed this to
mean that in federal courts counsel must be provided for defendants unable to employ
counsel unless the right is competently and intelligently waived. Betts argued that this
right is extended to indigent defendants in state courts by the Fourteenth Amendment. In
response the Court stated that, while the Sixth Amendment laid down "no rule for the
conduct of the States, the question recurs whether the constraint laid by the Amendment
upon the national courts expresses a rule so fundamental and essential to a fair trial, and
so, to due process of law, that it is made obligatory upon the States by the Fourteenth
Amendment." In order to decide whether the Sixth Amendment's guarantee of counsel is
of this fundamental nature, the Court in Betts set out and considered "relevant data on the
subject...afforded by constitutional and statutory provisions subsisting in the colonies and
the States prior to the inclusion of the Bill of Rights in the national Constitution, and in
the constitutional, legislative, and judicial history of the States to the present date." On
the basis of this historical data the Court concluded that "appointment of the counsel is
not a fundamental right, essential to a fair trial." It was for this reason the Betts Court
refused to accept the contention that the Sixth Amendment's guarantee of counsel for
indigent federal defendants was extended to or, in the words of that Court, "made
obligatory upon the States by the Fourteenth Amendment." Plainly, had the Court
concluded that appointment of counsel for an indigent criminal defendant was "a
fundamental right, essential to a fair trial," it would have held that the Fourteenth
Amendment requires appointment of counsel in a state court, just as the Sixth
Amendment requires in a federal court....
We accept Betts v. Brady's assumption, based as it was on our prior cases, that a
provision of the Bill of Rights which is "fundamental and essential to a fair trial" is made
obligatory upon the States by the Fourteenth Amendment. We think the Court in Betts
was wrong, however, in concluding that the Sixth Amendment's guarantee of counsel is
not one of these fundamental rights. Ten years before Betts v. Brady, this Court, after full
consideration of all the historical data examined in Betts, had unequivocally declared that
"the right to aid of counsel is of this fundamental character." Powell v. Alabama (1932).
While the Court at the close of its Powell opinion did by its language, as this Court
frequently does, limit its holding to the particular facts and circumstances of that case, its
conclusions about the fundamental nature of the right to counsel are unmistakable....
counsel is not a fundamental right, essential to a fair trial" -- the Court in Betts v. Brady
made an abrupt break with its own well-constituted precedents. In returning to these old
precedents, sounder we believe than the new, we but restore constitutional principles
established to achieve a fair system of justice. Not only these precedents but also reason
and reflection require us to recognize that in our adversary system of criminal justice, any
person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial
unless counsel is provided for him. This seems to us to be an obvious truth. Governments,
both state and federal, quite properly spend vast sums of money to establish machinery to
try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential
to protect the public's interest in an orderly society. Similarly, there are a few defendants
charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare
and present their defenses. That government hires lawyers to prosecute and defendants
who have the money hire lawyers to defend are the strongest indications of the
widespread belief that lawyers in criminal courts are necessities, not luxuries. The right
of one charged with crime to counsel may not be deemed fundamental and essential to
fair trials in some countries, but it is in ours. From the very beginning, our state and
national constitutions and laws have laid great emphasis on procedural and substantive
safeguards designed to assure fair trials before impartial tribunals in which every
defendant stands equal before the law. This noble ideal cannot be realized if the poor man
charged with crime has to face his accusers without a lawyer to assist him....
The Court in Betts v. Brady departed from the sound wisdom upon which the Court's
holding in Powell v. Alabama rested. Florida, supported by two other States, has asked
that Betts v. Brady be left intact. Twenty-two States, as friends of the Court, argue that
Betts was "an anachronism when handed down" and that it should now be overruled. We
agree.
The judgment is reversed and the case is remanded to the Supreme Court of Florida for
further action not inconsistent with this opinion.
Source: 372 U.S. 335 (1963).
REYNOLDS V. SIMS (1964)
The Constitution provides for a census of the population every ten years, and
representation in the House of Representatives is reapportioned on the basis of that count.
Most states have similar constitutional provisions, but by the 1950s it had become clear
that in some states no reapportionment had taken place for many years. As the United
States had become more and more urban in character, one-time rural majorities -- now
become minorities -- had managed to hold on to political power at the state level by
refusing to reapportion the state legislatures. Tennessee and Alabama had not redrawn
their legislative lines since 1901, and Delaware since 1897.
Amazing discrepancies existed in some states. In Vermont, for example, the most
populous assembly district had 33,000 persons, the least populous 238, yet each had one
delegate. The distortions ran even higher in senatorial districts where many states, like
the federal model, followed geographical lines. In California the Los Angeles senate
district included more than six million people; in a more sparsely populated part of the
state, one senate district had only 14,000 persons. Naturally, the entrenched interests in
the legislatures were not about to pass any reform measures that would take away their
power, and so urban voters, claiming they were denied equal protection of the laws,
turned to the courts.
Originally the Supreme Court declared the issue "non-justiciable," that is, the question of
reapportionment was one to be solved by the political branches and not by the courts. But
in 1960, the Court struck down an apportionment scheme in Alabama designed to prevent
African American voters from casting an effective ballot. The Court based its decision on
the Fifteenth Amendment, which barred denial of the vote on the basis of race. Urban
white voters now argued that if such a remedy existed for black voters, then surely a
remedy existed for them as well. In March 1962, the Court agreed, and declared in a case
called Baker v. Carr that the issue of reapportionment was justiciable. A year later the
Court came up with what would eventually prove to be the formula to resolve the issue,
"one person, one vote," which it applied in the landmark case of Reynolds v. Sims.
With the exception of its decision in Brown v. Board of Education, no decision of the
Supreme Court in recent years has had such an impact on the social and political fabric of
the country. State legislatures that had long been under the control of minority rural
populations would now be elected by a true majority of the people. Legislatures more
representative of the people would radically change funding formulas for schools, roads
and social services. In terms of inclusion, a large number of people, urban and suburban
residents in once-rural states, could now exercise their vote on an equal basis.
For further reading: Richard C. Cortner, The Apportionment Cases (1970); Robert G.
Dixon, Jr., Democratic Representation: Reapportionment in Law and Politics (1968);
Nelson W. Polsby, ed., Reapportionment in the 1970s (1971).
REYNOLDS V. SIMS
Chief Justice Warren delivered the opinion of the Court.
Wesberry clearly established that the fundamental principle of representative government
in this country is one of equal numbers of people, without regard to race, sex, economic
status, or place of residence within a State. Our problem, then, is to ascertain, in the
instant cases, whether there are any constitutionally cognizable principles which would
justify departures from the basic standard of equality among voters in the apportionment
of seats in state legislatures. A predominant consideration in determining whether a
State's legislative apportionment scheme constitutes an invidious discrimination violative
of rights asserted under the Equal Protection Clause is that the rights allegedly impaired
are individual and personal in nature. Undoubtedly, the right of suffrage is a fundamental
matter in a free and democratic society. Especially since the right to exercise the
franchise in a free and unimpaired manner is preservative of other basic civil and political
rights, any alleged infringement of the right of citizens to vote must be carefully and
meticulously scrutinized....
Legislators represent people, not trees or acres. Legislators are elected by voters, not
farms or cities or economic interests. As long as ours is a representative form of
government, the right to elect legislators in a free and unimpaired fashion is a bedrock of
our political system. It could hardly be gainsaid that a constitutional claim had been
asserted by an allegation that certain otherwise qualified voters had been entirely
prohibited from voting for members of their state legislature. And, if a State should
provide that the votes of citizens in one part of the State should be given two times, or
five times, or ten times the weight of votes of citizens in another part of the State, it could
hardly be contended that the right to vote of those residing in the disfavored areas had not
been effectively diluted. Of course, the effect of state legislative districting schemes
which give the same number of representatives to unequal numbers of constituents is
identical. Weighting the votes of citizens differently, by any method or means, merely
because of where they happen to reside, hardly seems justifiable....
Logically, in a society ostensibly grounded on representative government, it would seem
reasonable that a majority of the people of a State could elect a majority of that State's
legislators. To sanction minority control of state legislative bodies would appear to deny
majority rights in a way that far surpasses any possible denial or minority rights that
might otherwise be thought to result. And the concept of equal protection has been
traditionally viewed as requiring the uniform treatment of persons standing in the same
relation to the governmental action questioned or challenged. With respect to the
allocation of legislative representation, all voters, as citizens of a State, stand in the same
relation regardless of where they live. Any suggested criteria for the differentiation of
citizens are insufficient to justify any discrimination, as to the weight of their votes,
unless relevant to the permissible purposes of legislative apportionment. Since the
achieving of fair and effective representation for all citizens is concededly the basic aim
of legislative apportionment, we conclude that the Equal Protection Clause guarantees the
opportunity for equal participation by all voters in the election of state legislators.
Diluting the weight of votes because of place of residence impairs basic constitutional
rights under the Fourteenth Amendment just as much as invidious discriminations based
upon factors such as race or economic status.... Our constitutional system amply provides
for the protection of minorities by means other than giving them majority control of state
legislatures.
We are told that the matter of apportioning representation in a state legislature is a
complex and many-faceted one. We are advised that States can rationally consider factors
other than populations. We are admonished not to restrict the power of the States to
impose differing views as to political philosophy on their citizens. We are cautioned
about the dangers of entering into political thickets and mathematical quagmires. Our
answer is this: a denial of constitutionally protected rights demands judicial protection;
our oath and our office require no less of us. To the extent that a citizen's right to vote is
debased, he is that much less a citizen. The weight of a citizen's vote cannot be made to
depend on where he lives. Population is, of necessity, the starting point for consideration
and the controlling criterion for judgement in legislative apportionment controversies. A
citizen, a qualified voter, is no more nor no less so because he lives in the city or on the
farm. This is the clear and strong command of our Constitution's Equal Protection Clause.
This is at the heart of Lincoln's vision of "government of the people, by the people,...for
the people." We hold that, as a basic constitutional standard, the Equal Protection Clause
requires that the seats in both houses of a bicameral state legislature must be apportioned
on a population basis. Simply stated, an in-dividual's right to vote for state legislators is
unconstitutionally impaired when its weight is in a substantial fashion diluted when
compared with votes of citizens living in other parts of the state.
Source: 377 U.S. 533 (1964).
NOW STATEMENT OF PURPOSE (1966)
American women in the 1960s were hardly a minority, and in fact constituted 51 percent
of the population. But they began to identify with members of smaller, oppressed groups
and to demand liberation and equality. Sexual discrimination was so subtle and so
embedded in the fabric of American society that when the new feminists began to argue
for greater equality, they triggered a great deal of hostility and anger. Yet within a fairly
short time, the new women's movement had made significant strides, winning legislation
that guaranteed equal pay for equal work, forbidding employment discrimination on the
basis of gender and securing court victories that struck down generations-old forms of
discrimination.
Undoubtedly a key element in this awakening was the entry or return to the job market of
millions of women. There they not only secured a measure of economic independence,
but came face to face with deeply ingrained patterns of sexual discrimination. Women
were barred -- informally but nonetheless effectively -- from certain types of jobs, often
ones that paid better or had greater promotional opportunities. They discovered that even
when they were working, society expected them also to meet certain stereotypical
obligations in the home, while excusing men from sharing in childcare and household
work.
A key event was the 1963 publication of Betty Friedan's The Feminine Mystique, in
which she detailed the ways society kept women in an inferior status. The book did not so
much cause feminism as give voice to a movement already under way. By that time John
Kennedy had already established the President's Commission on the Status of Women,
and later in the year secured passage of the Equal Pay Act. In 1964, Title VII of the Civil
Rights Act extended to women significant protections against discrimination.
Against this backdrop Friedan and other feminists -- including some men -- joined
together in 1966 to create NOW, the National Organization for Women. In the beginning,
NOW directed most of its resources toward the needs of working women. It denounced
the exclusion of women from professions, politics and other areas of society because of
antiquated male views about women. It exposed and attacked legal and economic
discrimination, such as bank practices that denied married women credit in their own
names. By the end of the decade, NOW claimed more than 15,000 members.
The NOW Statement of Purpose defined the mainstream of the modern feminist
movement, and even while many women -- and men -- decried the label, they noted that
they agreed with NOW's basic demand, that women in the workforce be treated equally
with men, receiving equal pay for equal work and enjoying access to jobs and promotions
to which their talents entitled them.
For further reading: Betty Friedan, The Feminine Mystique (1963); Susan M. Hartman,
From Margin to Mainstream: Women and American Politics Since 1960 (1989);
Winifred Wandersee, On the Move: American Women in the 1970s (1988); Nancy Cott,
The Grounding of Modern Feminism (1987).
NOW STATEMENT OF PURPOSE
We, men and women who hereby constitute ourselves as the National Organization for
Women, believe that the time has come for a new movement toward true equality for all
women in America, and toward a fully equal partnership of the sexes, as part of the
world-wide revolution of human rights now taking place within and beyond our national
borders.
The purpose of NOW is to take action to bring women into full participation in the
mainstream of American society now, exercising all the privileges and responsibilities
thereof in truly equal partnership with men.
We believe the time has come to move beyond the abstract argument, discussion and
symposia over the status and special nature of women which has raged in America in
recent years; the time has come to confront, with concrete action, the conditions that now
prevent women from enjoying the equality of opportunity and freedom of choice which is
their right as individual Americans, and as human beings.
NOW is dedicated to the proposition that women first and foremost are human beings,
who, like all other people in our society, must have the chance to develop their fullest
human potential. We believe that women can achieve such equality only by accepting to
the full the challenges and responsibilities they share with all other people in our society,
as part of the decision-making mainstream of American political, economic and social
life.
We organize to initiate or support action, nationally or in any part of this nation, by
individuals or organizations, to break through the silken curtain of prejudice and
discrimination against women in government, industry, the professions, the churches, the
political parties, the judiciary, the labor unions, in education, science, medicine, law,
religion and every other field of importance in American society....
There is no civil rights movement to speak for women, as there has been for Negroes and
other victims of discrimination. The National Organization for Women must therefore
begin to speak.
We believe that the power of American law, and the protection guaranteed by the U.S.
Constitution to the civil rights of all individuals, must be effectively applied and enforced
to isolate and remove patterns of sex discrimination, to ensure equality of opportunity in
employment and education, and equality of civil and political rights and responsibilities
on behalf of women, as well as for Negroes and other deprived groups.
We realize that women's problems are linked to many broader questions of social justice;
their solution will require concerted action by many groups. Therefore, convinced that
human rights for all are indivisible, we expect to give active support to the common cause
of equal rights for all those who suffer discrimination and deprivation, and we call upon
other organizations committed to such goals to support our efforts toward equality for
women.
We do not accept the token appointment of a few women to high-level positions in
government and industry as a substitute for a serious continuing effort to recruit and
advance women according to their individual abilities. To this end, we urge American
government and industry to mobilize the same resources of ingenuity and command with
which they have solved problems of far greater difficulty than those now impeding the
progress of women.
We believe that this nation has a capacity at least as great as other nations, to innovate
new social institutions which will enable women to enjoy true equality of opportunity and
responsibility in society, without conflict with their responsibilities as mothers and
homemakers. In such innovations, America does not lead the Western world, but lags by
decades behind many European countries. We do not accept the traditional assumption
that a woman has to choose between marriage and motherhood, on the one hand, and
serious participation in industry or the professions on the other. We question the present
expectation that all normal women will retire from job or profession for ten or fifteen
years, to devote their full time to raising children, only to reenter the job market at a
relatively minor level. This in itself is a deterrent to the aspirations of women, to their
acceptance into management or professional training courses, and to the very possibility
of equality of opportunity or real choice, for all but a few women. Above all, we reject
the assumption that these problems are the unique responsibility of each individual
woman, rather than a basic social dilemma which society must solve. True equality of
opportunity and freedom of choice for women requires such practical and possible
innovations as a nationwide network of child-care centers, which will make it
unnecessary for women to retire completely from society until their children are grown,
and national programs to provide retraining for women who have chosen to care for their
own children full time.
We believe that it is as essential for every girl to be educated to her full potential of
human ability as it is for every boy -- with the knowledge that such education is the key
to effective participation in today's economy and that, for a girl as for a boy, education
can only be serious where there is expectation that it will be used in society. We believe
that American educators are capable of devising means of imparting such expectations to
girl students. Moreover, we consider the decline in the proportion of women receiving
higher and professional education to be evidence of discrimination. This discrimination
may take the form of quotas against the admission of women to colleges and professional
schools; lack of encouragement by parents, counselors and educators; denial of loans or
fellowships; or the traditional or arbitrary procedures in graduate and professional
training geared in terms of men, which inadvertently discriminate against women. We
believe that the same serious attention must be given to high school dropouts who are
girls as to boys.
We reject the current assumptions that a man must carry the sole burden of supporting
himself, his wife, and family, and that a woman is automatically entitled to lifelong
support by a man upon her marriage, or that marriage, home and family are primarily
woman's world and responsibility -- hers, to dominate, his to support. We believe that a
true partnership between the sexes demands a different concept of marriage, an equitable
sharing of the responsibilities of home and children and of the economic burdens of their
support. We believe that proper recognition should be given to the economic and social
value of homemaking and child care. To these ends, we will seek to open a reexamination
of laws and mores governing marriage and divorce, for we believe that the current state
of "half-equality" between the sexes discriminates against both men and women, and is
the cause of much unnecessary hostility between the sexes.
We believe that women must now exercise their political rights and responsibilities as
American citizens. They must refuse to be segregated on the basis of sex into separateand-not-equal ladies' auxiliaries in the political parties, and they must demand
representation according to their numbers in the regularly constituted party committees -at local, state, and national levels -- and in the informal power structure, participating
fully in the selection of candidates and political decision-making, and running for office
themselves.
In the interests of the human dignity of women, we will protest and endeavor to change
the false image of women now prevalent in the mass media, and in the texts, ceremonies,
laws, and practices of our major social institutions. Such images perpetuate contempt for
women by society and by women for themselves. We are similarly opposed to all policies
and practices -- in church, state, college, factory, or office -- which, in the guise of
protectiveness, not only deny opportunities but also foster in women self-denigration,
dependence, and evasion of responsibility, undermine their confidence in their own
abilities and foster contempt for women.
NOW will hold itself independent of any political party in order to mobilize the political
power of all women and men intent on our goals. We will strive to ensure that no party,
candidate, President, senator, governor, congressman, or any public official who betrays
or ignores the principle of full equality between the sexes is elected or appointed to office.
If it is necessary to mobilize the votes of men and women who believe in our cause, in
order to win for women the final right to be fully free and equal human beings, we so
commit ourselves.
We believe that women will do most to create a new image of women by acting now, and
by speaking out in behalf of their own equality, freedom, and human dignity -- not in
pleas for special privilege, nor in enmity toward men, who are also victims of the current
half-equality between the sexes -- but in an active, self-respecting partnership with men.
By so doing, women will develop confidence in their own ability to determine actively, in
partnership with men, the conditions of their life, their choices, their future and their
society.
Source: Mary Beth Norton, ed., Major Problems in American Women's History (1989),
397-400.
"WE ARE NOT FREE" (1967)
Clyde Warrior
Native Americans were for a long time excluded from mainstream American society.
From the seventeenth to the late nineteenth century they were hounded off their
homelands and pushed first westward, and then onto reservations where, nominally under
the protection and tutelage of the federal government, their tribal societies deteriorated
despite an intense struggle to maintain them in the face of insurmountable odds. Although
a few tribes like the Hopi and Navaho did succeed in preserving much of their heritage,
in many instances Indian children were taken from their parents and sent to white schools
in an effort to "civilize" them. The results were disastrous, producing people who could
never be white and yet had lost touch with their tribal roots.
In 1961 more than 400 members of 67 tribes met in Chicago to discuss ways to bring all
Indians together in an effort to redress their grievances. The manifesto they issued
reflected many of the themes and ideas of the Declaration of Independence, and stressed
"the right to choose [their] own way of life" and the "responsibility of preserving [their]
ancient heritage."
The Chicago conference was but one example of a growing self-consciousness among
American Indians, who would soon choose to be called by the title of Native Americans.
Native authors such as Vine DeLoria, Jr., and Dee Brown began writing books drawing
renewed attention to the wrongs that whites had inflicted on the tribes over the centuries.
By 1968, the militant American Indian Movement (AIM) was formed.
The new activism brought some government attention, and some efforts to change the old
policies, but as with many excluded groups, the level of discrimination was so high that
token efforts led to greater levels of frustration and demands for even more redress.
While there were some violent episodes, such as AIM members seizing Wounded Knee,
South Dakota (the site of the 1890 massacre of Sioux by federal troops), the tribes soon
learned to use sophisticated techniques of legislative lobbying and litigation to win rights
and resources owed to them under federal treaties that had been ignored for decades.
Native Americans did not so much demand inclusion in the sense of being absorbed into
the greater society as they did the right to be different without being penalized for it. The
National Indian Youth Council, for example, created in the aftermath of the 1961
Chicago conference, became an important agency working for Indian nationalism and
intertribal unity. Younger leaders, such as Clyde Warrior, the president of the Council,
were also impatient with the older generation's efforts to win benefits by appearing
reasonable.
On February 2, 1967, the same day that older Indians were tentatively telling President
Johnson that his proposed bill to reform federal oversight of Indian affairs was
inadequate, Warrior, a Ponca Indian from eastern Oklahoma, testified at a hearing of the
President's National Advisory Commission on Rural Poverty. His statement is an
eloquent plea for Indian freedom, and at its heart is the linking of the problems of Indian
poverty with the white man's refusal to allow Indians to run their own affairs. What the
Indians wanted was the right, given to all other groups in America, to determine their
own destiny.
For further reading: Dee Brown, Bury My Heart at Wounded Knee (1971); Vine DeLoria,
Jr., Custer Died for Your Sins (1969); Petra S. Shattuck and Jill Norgren, Partial Justice:
Federal Indian Law in a Liberal Constitutional System (1990); Sharon O'Brien, American
Indian Tribal Governments (1989).
"WE ARE NOT FREE"
(Text omitted because of copyright restrictions)
"ON THE PULSE OF THE MORNING" (1993)
Maya Angelou
On only two occasions have incoming presidents asked poets to grace their inaugurals:
John F. Kennedy asked Robert Frost to compose a poem for his inaugural, and thirty-two
years later, Bill Clinton, a great admirer of Kennedy, invited Maya Angelou to read a
poem at his swearing-in ceremony. Angelou, a black woman poet, symbolized one of the
themes of Clinton's inaugural, the notion of an inclusive America in which all people,
regardless of their race, color, creed or ethnic origin, would be valued members of the
society.
The notion is not new, and one can find the theme in the works of colonial writers such as
Hector de St. Jean Crevecoeur. But where he and others spoke primarily of white
migrants from western Europe, today democracy talks about internal as well as external
groups, people who have been here but have long been excluded from full and equal
participation in society, such as women, Native Americans, African Americans and other
minority groups.
Angelou's poem is not only a work of art, but also a political document, one that perfectly
captured a particular moment in American society when a new effort was being launched
to fulfill an old dream of a society of men and women, of all colors and beliefs, treating
each other with dignity and equality.
"ON THE PULSE OF THE MORNING"
(Poem omitted due to copyright restrictions)
PART XI: CONTINUING VITALITY
In April 1975, the anniversary of the Revolutionary battles of Concord and Lexington,
the United States began celebrating its bicentennial, a series of events that stretched out
to cover the 200th anniversaries of the Declaration of Independence, the Constitution, the
Judiciary Act and the Bill of Rights, as well as several other intermediary happenings.
While many aspects of this prolonged national birthday party were, expectedly,
celebratory in nature, there was also a significant amount of introspection. What was
unique about the American system? Why had it worked so well? What were its most
significant successes, and its most abject failures? Would an eighteenth-century
document be able to guide the United States into the twenty-first century?
Scholars and laypersons alike disagreed on the answers to many of these questions, but in
general they did conclude that the American experiment of an open, pluralist and
democratic society had shown a resilience that allowed it to overcome crises few of the
Founding Fathers could have anticipated. They did not claim that the system was perfect,
but rather, that as certain problems have been overcome and more groups admitted into
society as equal partners, the democratic system has shown an amazingly strong sense of
continuing vitality. If it can continue to meet challenges in the future as it has in the past,
then one can hope that American democracy, with all its flaws, will continue to provide,
as Thomas Jefferson believed it would, man's best hope for governing himself.
The two pieces that follow are quite different in nature, but both point to differing aspects
of that vitality.
UNITED STATES V. NIXON (1974)
In November 1972, Richard Nixon won a second term as president, decisively defeating
the Democratic candidate, George McGovern. But toward the end of the campaign a
group of burglars broke into the Democratic Party campaign headquarters in
Washington's Watergate complex. Thanks in large part to the determined investigative
reporting of the Washington Post, what had been a small news story soon expanded, as
reporters uncovered tracks leading to high government officials. The Nixon
administration denied any wrongdoing, but it soon became clear that it had tried to cover
up the burglary and connections to it, connections that might even include the president.
Under congressional and public pressure, Nixon appointed a special prosecutor. When it
was learned that the president had secretly taped conversations in the Oval Office, the
prosecutor filed a subpoena to secure tapes he believed relevant to the criminal
investigation. In March 1974, a federal grand jury indicted seven associates of President
Nixon for conspiracy to obstruct justice and other offenses relating to the Watergate
burglary. The president himself was named as an unindicted co-conspirator. The District
Court, upon the motion of the special prosecutor, issued a subpoena to the president
requiring him to produce certain tapes and documents relating to precisely identified
meetings between the president and others. Although President Nixon released edited
transcripts of some of the subpoenaed conversations, his counsel filed a "special
appearance" and moved to quash the subpoena on the grounds of executive privilege.
When the District Court denied the motion, the president appealed and the case was
quickly brought to the Supreme Court. In the following portion of the Court's unanimous
opinion, the Supreme Court dealt with two key issues, the power of the judiciary as the
ultimate arbiter of the Constitution, and the claim of the president that, in the name of
executive privilege, he could choose to withhold materials germane to a criminal
investigation. Chief Justice Burger reaffirmed the rulings of Marbury v. Madison and
Cooper v. Aaron that under the Constitution the courts have the final voice in
determining constitutional questions, and that no person, not even the president of the
United States, is above the law. Although there had been some speculation as to whether
Nixon would obey the Court, within eight hours after the decision had been handed down
the White House announced it would comply. On August 5, 1974, transcripts of sixtyfour tape recordings were released, including one that was particularly damaging in
regard to White House involvement in the Watergate cover-up. Three days later, his
support in Congress almost completely gone, Nixon announced that he would resign.
For further reading: Robert Woodward and Carl Bernstein, All the President's Men
(1974); Theodore H. White, Breach of Faith (1975); Stanley I. Kutler, The Wars of
Watergate (1990).
UNITED STATES V. NIXON
Mr. Chief Justice Burger delivered the opinion of the Court. This litigation presents for
review the denial of a motion, filed [on] behalf of the [President] in the case of United
States v. Mitchell et al., to quash a third-party subpoena duces tecum...direct[ing] the
President to produce certain tape recordings and documents relating to his conversations
with aides and advisers. The court rejected the President's claims of absolute executive
privilege, [and] of lack of jurisdiction.... A. ...we turn to the claim that the subpoena
should be quashed because it demands "confidential conversations between a President
and his close advisors that it would be inconsistent with the public interest to produce."
The first contention is a broad claim that the separation of powers doctrine precludes
judicial review of a President's claim of privilege. The second contention is that if he
does not prevail on the claim of absolute privilege, the court should hold as a matter of
constitutional law that the privilege prevails over the subpoena duces tecum.
In the performance of assigned constitutional duties each branch of the Government must
initially interpret the Constitution, and the interpretation of its powers by any branch is
due great respect from the other. The President's counsel [reads] the Constitution as
providing an absolute privilege of confidentiality for all Presidential communications.
Many decisions of this Court, however, have unequivocally reaffirmed the holding of
[Marbury v. Madison] that "it is emphatically the province and duty of the judicial
department to say what the law is."
No holding of the Court has defined the scope of judicial power specifically related to the
enforcement of a subpoena for confidential Presidential communications for use in a
criminal prosecution, but other exercises of powers by the Executive Branch and the
Legislative Branch have been found invalid as in conflict with the Constitution. In a
series of cases, the Court interpreted the explicit immunity conferred by express
provisions of the Constitution on Members of the House and Senate by the Speech or
Debate Clause. Since this Court has consistently exercised the power to construe and
delineate claims arising under express powers, it must follow that the Court has authority
to interpret claims with respect to powers alleged to derive from enumerated interpret
claims with respect to powers.
...Notwithstanding the deference each branch must accord the others, the "judicial Power
of the United States" vested in the federal courts by [the Constitution] can no more be
shared with the Executive Branch than the Chief Executive for example, can share with
the Judiciary the veto power, or the Congress share with the Judiciary the power to
override a Presidential veto. Any other conclusion would be contrary to the basic concept
of separation of powers and the checks and balances that flow from the scheme of a
tripartite government. We therefore reaffirm that it is the province and the duty of this
Court "to say what the law is" with respect to the claim of privilege presented in this case.
B. In support of his claim of absolute privilege, the President's counsel urges two grounds.
The first is the valid need for protection of communications between high Government
officials and those who advise and assist them in the performance of their manifold duties;
the importance of this confidentiality is too plain to require further discussion. Human
experience teaches that those who expect public dissemination of their remarks may well
temper candor with a concern for appearances and for their own interests to the detriment
of the decision-making process. Whatever the nature of the privilege of confidentiality of
Presidential communications in the exercise of Art. II powers, the privilege can be said to
derive from the supremacy of each branch within its own assigned areas of constitutional
duties. Certain powers and privileges flow from the nature of enumerated powers; the
protection of the confidentiality of Presidential communications has similar constitutional
underpinnings.
The second ground asserted to support the claim of absolute privilege rests on the
doctrine of separation of powers. Here it is argued that the independence of the Executive
Branch within its own sphere insulates a President from a judicial subpoena in an
ongoing criminal prosecution, and thereby protects confidential Presidential
communications.
However, neither the doctrine of separation of powers, nor the need for confidentiality of
high level communications, without more, can sustain an absolute, unqualified
Presidential privilege of immunity from judicial process under all circumstances. The
President's need for complete candor and objectivity from advisers calls for great
deference from the court. However, when the privilege depends solely on the broad,
undifferentiated claim of public interest in the confidentiality of such conversations, a
confrontation with other values arises. Absent a claim of need to protect military,
diplomatic, or sensitive national security secrets, we find it difficult to accept the
argument that even the very important interest in confidentiality of Presidential
communications is significantly diminished by production of such material for in camera
inspection with all the protection that a district court will be obliged to provide.
The impediment that an absolute, unqualified privilege would place in the way of primary
constitutional duty of the Judicial Branch to do justice in criminal prosecutions would
plainly conflict with the function of the courts under Art. III. In designing the structure of
our Government and dividing and allocating the sovereign power among three co-equal
branches, the [Framers] sought to provide a comprehensive system, but the separate
powers were not intended to operate with absolute independence. To read the Art. II
powers of the President as providing an absolute privilege as against a subpoena essential
to enforcement of criminal statutes on no more than a generalized claim of the public
interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the
constitutional balance of "a workable government" and gravely impair the role of the
courts under Art. III.
C. Since we conclude that the legitimate needs of the judicial process may outweigh
Presidential privilege, it is necessary to resolve those competing interests in a manner that
preserves the essential functions of each branch. The right and indeed the duty to resolve
that question does not free the Judiciary from according high respect to the
representations made on behalf of the President.
The expectation of a President to the confidentiality of his conversations and
correspondence, like the claim of confidentiality of judicial deliberations, for example,
has all the values to which we accord deference for the privacy of all citizens and added
to those values the necessity for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making. A President and those who
assist him must be free to explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be unwilling to express except
privately. These are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution.
...But this presumptive privilege must be considered in light of our historic commitment
to the rule of law. This is nowhere more profoundly manifest than in our view that "the
twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer."...The
need to develop all relevant facts in the adversary system is both fundamental and
comprehensive. The ends of criminal justice would be defeated if judgments were to be
founded on a partial or speculative presentation of the facts.... To ensure that justice is
done, it is imperative to the function of courts that compulsory process be available for
the production of evidence needed either by the prosecution or by the defense. ...The
[evidentiary] privileges are designed to protect weighty and legitimate competing
interests... [and] are not lightly created nor expansively construed for they are in
derogation of the search for truth.
In this case the President challenges a subpoena served on him as a third party requiring
the production of materials for use in a criminal prosecution; he does so on the claim that
he has a privilege against disclosure of confidential communications. He does not place
his claim of privilege on the ground they are military or diplomatic secrets. As to these
areas of Art. II duties the courts have traditionally shown the utmost deference to
Presidential responsibilities.... No case of the Court, however, has extended this high
degree of deference to a President's generalized interest in confidentiality. Nowhere in the
Constitution is there any explicit reference to a privilege of confidentiality, yet to the
extent this interest relates to the effective discharge of a President's powers, it is
constitutionally based.
The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions.... It is the manifest duty of the courts to vindicate [the Sixth and Fifth
Amendment] guarantees and to accomplish that it is essential that all relevant and
admissible evidence be produced.
In this case we must weigh the importance of the general privilege of confidentiality of
Presidential communications in performance of his responsibilities against inroads of
such privilege on the fair administration of criminal justice. The interest in preserving
confidentiality is weighty indeed and entitled to great respect. However, we cannot
conclude that advisers will be moved to temper the candor of their remarks by the
infrequent occasions of disclosure because of the possibility that such conversations will
be called for in the context of a criminal prosecution.
On the other hand, the allowance of the privilege to withhold evidence that is
demonstrably relevant in a criminal trial would cut deeply into the guarantee of due
process of law and gravely impair the basic function of the courts. A President's
acknowledged need for confidentiality in the communications of his office is general in
nature, whereas the constitutional need for production of relevant evidence in a criminal
proceeding is specific and central to the fair adjudication of a particular criminal case.
Without access to specific facts a criminal prosecution may be totally frustrated. The
President's broad interest in confidentiality of communications will not be vitiated by
disclosure of a limited number of conversations preliminarily shown to have some
bearing on the pending trials. We conclude that when the ground for asserting privilege
as to subpoenaed materials sought for use in a criminal trial is based only on the
generalized interests in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice. The generalized assertion
of privilege must yield to the demonstrated, specific need for evidence in a pending
criminal trial.
D. ...If a President concludes that a compliance with a subpoena would be injurious to the
public interest he may properly, as was done here, invoke a claim of privilege on the
return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it
became the further duty of the District Court to treat the subpoenaed material as
presumptively privileged and to require the Special Prosecutor to demonstrate that the
Presidential material was "essential to the justice of the case." ...We affirm the order of
the District Court that subpoenaed materials be transmitted to that court. We now turn to
the important question of the District Court's responsibilities in conducting the in camera
examination of Presidential materials or communications delivered under the compulsion
of the subpoena duces tecum.
E. ...Statements that meet the test of admissibility and relevance must be isolated; all
other material must be excised. ...The District Court has a very heavy responsibility to see
to it that Presidential conversation, which are either not relevant or not admissible, are
accorded that high degree of respect due the President. Mr. Chief Justice Marshall sitting
as a trial judge...was extraordinarily careful to point out that: "In no case of this kind
would a Court be required to proceed against the president as against an ordinary
individual." Marshall's statement cannot be read to mean in any sense that a President is
above the law, but relates to the singularly unique role under Art. II of a President's
communications and activities, related to the performance of duties under that Article.
Moreover, a President's communications and activities encompass a vastly wider range of
sensitive material than would be true of any "ordinary individual." It is therefore
necessary in the public interest to afford Presidential confidentiality the greatest
protection consistent with the fair administration of justice. The need for confidentiality
even as to idle conversation with associates in which casual reference might be made
concerning political leaders within the country or foreign statesmen is too obvious to call
for further treatment. We have no doubt that the District Judge will at all times accord to
Presidential records that high degree of deference suggested....
Affirmed.
Source: 418 U.S. 683 (1974).
EXCERPTS FROM PRESIDENTIAL DEBATES (1992)
One of the earliest manifestations of American democracy was the New England town
meeting, in which all the village inhabitants would gather to discuss issues of importance.
In many of the smaller cities and towns of America, town meetings still are held so that
citizens can voice their opinions on government. Modern electronic communications
have transformed the town meeting and the presidential debates. In 1992, all the
candidates utilized some form of electronic town meeting, in which people from all over
the country could call in their questions.
Another long-time feature of the political process has been the candidates" debating one
another in front of the voters. On election day in colonial Virginia, the candidates for the
House of Burgesses would all step up to ask their fellow citizens for support and to
explain why they should be elected. Debates were, however, limited to state and local
elections until 1960, when television made possible the first presidential debate between
John Kennedy and Richard Nixon. Since then, prior to each election, presidential
aspirants have debated at least twice on national television, the only opportunity the
electorate gets to see the candidates head-to-head.
Critics of the debates charge that all one gets is canned answers, that the candidates do
not respond to real questions, and that they are concerned more with appearance than
substance. There is certainly some truth to these charges, but the large audiences that tune
in for the debates indicate that the electorate wants the opportunity to see the candidates
together, to measure one person against another, and to see how well they handle
themselves in such situations. Moreover, the debates can make a difference, especially in
a close election. John Kennedy eliminated all the negative charges of youth and
inexperience when he held his own against Richard Nixon in the 1960 debates, and they
played a critical role in his narrow victory.
In 1992, the debates allowed the public to see not two, but three presidential candidates.
In addition to President George Bush, the Republican nominee, and his Democratic
challenger, Governor Bill Clinton of Arkansas, the United States had a major independent
candidate, Texas businessman H. Ross Perot. The candidates debated three times, but the
most interesting meeting came in Richmond, Virginia, on October 15, 1992, when the
debates took the form of a town meeting, with questions coming from the audience.
EXCERPTS FROM PRESIDENTIAL DEBATES
Q. I'd like to direct my question to Mr. Perot. What will you do as president to open
foreign markets to fair competition from American business, and to stop unfair
competition here at home from foreign countries so that we can bring jobs back to the
United States?
PEROT That's right at the top of my agenda. We've shipped millions of jobs overseas
and we have a strange situation because we have a process in Washington where after
you've become a foreign lobbyist, make $30,000 a month; then take a leave, work on
presidential campaigns, make sure you got good contacts, and then go back out. Now if
you just want to get down to brass tacks, the first thing you ought to do is get all these
folks who've got these one-way trade agreements that we've negotiated over the years and
say, "Fellows, we'll take the same deal we gave you." And they'll gridlock right at that
point because we've got international competitors who simply could not unload their cars
off the ships if they had to comply.... We have got to stop sending jobs overseas.
To those of you in the audience who are business people, pretty simple: If you're paying
$12, $13, $14 an hour for factory workers and you can move your factory south of the
border, pay a dollar an hour labor, hire young -- let's assume you've been in business for a
long time and you've got a mature work force -- pay a dollar an hour for your labor, have
no health care, have no environmental controls, no pollution controls and no retirement,
and you don't care about anything but making money, there will be a giant sucking sound
going south....
Q. Thank you Mr. Perot. I see that the president has stood up so he must have something
to say about this.
BUSH Well, Carole, the thing that saved us in this global economic slowdown is our
exports. And what I'm trying to do is increase our exports. And if, indeed, all the jobs
were going to move south because of lower wages, there are lower wages now and they
haven't done that. And so I have just negotiated with the President of Mexico the North
American Free Trade Agreement, and [with] the Prime Minister of Canada.... I want to
have more of these free trade agreements. Because export jobs are increasing far faster
than any jobs that may have moved overseas; that's a scare tactic because it's not that
many. But anyone that's here, we want to have more jobs here and the way to do that is to
increase our exports.
Some believe in protection. I don't. I believe in free fair trade and that's the thing that
saved us, and so I will keep on as president trying to get a successful conclusion to the
GATT round, the big Uruguay round of trade which will really open up markets for our
agriculture particularly. I want to continue work after we get this NAFTA agreement
ratified this coming year; I want to get one with Eastern Europe. I want to get one with
Chile and free and fair trade is the answer, not protection. And, as I say, we've had tough
economic times and it's exports that have saved us.
Q. Governor Clinton.
CLINTON I'd like to answer the question because I've actually been a governor for 12
years, so I've known a lot of people who've lost their jobs moving overseas and I know a
lot of people whose plants have been strengthened by increasing exports. The trick is to
expand our expo