Background to the Constitution.
The Constitution of the United States is one of the written instruments that bears heavily upon our life and our times.
It is, as we know, the basic instrument of government in this country,
and it is one that should take a certain amount of our attention so that we know what it says and what it does not say.
There are many misconceptions about the Constitution, but before we consider the instrument itself,
perhaps a brief review of the events leading up to its formation and adoption would be
in order. Let's go back in time and recall that we were engaged in a war with Great Britain,
which war is generally admitted to have begun in 1775 with the battles of Lexington and
and Conquered. It ran through until 1782 when the last battle was fought. In that period
of the war, the first thing that happened was that during the process of the war, the
various colonies or the colonial governments that had been established by the British Crown
were converted into separate states. This occurred all the way through the war and actually
one or two had converted prior to the actual opening of hostilities. That is to say the
local colonists drove out the British governor and simply picked up the reins of government
as they had been established originally by Britain and converted the state or the colony
into a state by setting up representative houses such as the House of Burgesses in Virginia
and so on. And thus, throughout the war period, 13 separate states were ultimately organized.
At the time the war began, that was not the case, but by the time it ended, that had become the
in the case. In fact, the states had all come into existence by 1781, at which time the
Articles of Confederation were put together with the idea of binding the states into something
of a union so that they would stay together for the duration of the war. It is instructive,
I think, to note that under the Articles of Confederation, which were set up as a permanent
Union, and from which it was presumed no one could ever see seed, and this is the articles
I'm speaking of, in fact it was to have permanent existence, and the fact that it doesn't exist
now indicates how impermanent some things that are intended to be permanent are.
In this instrument there was no power to tax, no power to conscript, it had the effect of
of a Treaty binding together the 13 separate states. That was drawn up in 1781. In 1782
we had the final battle of the war, the Battle of Yorktown, and then the war ended, but it
took us a year to say so officially, because we had no central government. True, we had
the 13 separate states, and the 13 separate states tried to arrange for some kind of a
of a Treaty.
But Great Britain recognized that she had not been engaged in a war with states.
She had been engaged with the entire colonial area, and hence in order to obtain a treaty,
what finally occurred was that the French, who were the Americans' primary and really
only ally, put their bid in, and the result was that the delegates to create the treaty
had to travel to Paris, and the treaty that ensued that brought American independence
is the Treaty of Paris. Now, that finally came into existence in 1783. We still had no central
government. During the war we had come up with an instrument, the Declaration of Independence,
which had been drafted by 56 men in Philadelphia in 1776. The Declaration of Independence had no
legal standing at all. It says on the head of the instrument, that is the Declaration, it says in
Congress, and it is generally stated in the history books that this was an enactment by the
The Second Continental Congress as though there was, in fact, then in existence, a general
legal body. But this is not true. The word Congress was being used as a synonym for convention.
And what it was, was the Second Continental Convention that had met in Philadelphia on
July 1st of 1776 that provided the Declaration of Independence. But the Declaration had no
in the next two years, that is from 1783 to 1785, and nothing ensued. We operated under
Under the separate governments, the separate states, and everyone seemed to be content.
But by 1785, a movement began to get underway calling for the creation of an amendment to
the Articles of Confederation, so that it would continue with a little more force and
power than it had.
Actually, there was little power in it, and now there were those who began to champion
and the idea that the articles ought to be revised so that it would become more than
a de facto treaty binding the colonies together, or rather the states, but it would become
an instrument of government per se. There was not very much enthusiasm for this. The
prime movers for this type of thing were in Pennsylvania and New York, but many of the
of the Colonies were indifferent to this idea, and the population at large in general took
the view that they had just gotten rid of their government and they really didn't need
another one. They weren't thinking of the states as being governments so much as they
were thinking of them as being representative bodies, more or less like politically endowed
chambers of commerce that would take care of the public sector in their various areas,
would not be a restrictive or binding type of thing. However, the movement from 1785
to 1787, leading toward a central government, began to gain strength. And by 1787, the various
legislatures in the separate states decided that at least the matter could be considered.
The consequence was that delegates were appointed from each of the thirteen states who were
charged with the responsibility of going to Philadelphia for a convention, there to study
the Articles of Confederation to see whether or not the Articles could be strengthened
without interfering with the sovereignty of the separate states. And then, having worked
on that instrument as a study group, the various delegates were charged with the responsibility
of returning to the legislatures that had sent them and reporting back in. Then the
legislatures were to take whatever action they wished, whether they would accept or
reject the findings of the group in Philadelphia. It becomes a matter, I suppose, of some consternation
to Americans who have not necessarily studied their own history in depth. When I tell them
that it is a melancholy fact of history that the delegates to the Constitutional Convention
in Philadelphia in 1787 have not reported back yet. They never did return, and as a
matter of fact, they never did consider the Articles of Confederation, which was the only
thing they were authorized to consider. As a matter of fact, and a little footnote to
American history, some of the delegates when they arrived at Philadelphia were completely
Nonplus to discover that the convention was already in the hands of a group of people,
calling themselves Federalists or Constitutionalists, and these people had already decided that
the Articles of Confederation were not even going to be considered. Instead, they had
already prepared the rough draft of what was to be an entirely new government. This was
not what they had been authorized to consider, and the consequence is that a number of the
of the Delegates, finding that they could not even consider the instrument that they
had been sent to consider, simply got on their horses and rode away.
This included the entire delegation from Rhode Island, a major portion of the delegation
from New York, and here and there a few other delegates.
So those people never did participate in the Constitutional Convention.
And if you examine one of the memorial copies of the Constitution to come from the Convention,
We will note the fact that no one from Rhode Island was there, and that the delegation
from New York is particularly sparse. In any case, the Constitution itself was put together
during this convention of 1787. Now, it contains within itself a method of ratification which
which would make it unnecessary to turn the Constitution over to the people so that the
people would examine it and decide voluntarily of their own free act and deed whether or
not they wanted to be bound under the instrument.
Additionally, it avoids the necessity of going to the state legislatures, which did comprise
the then existing government, and if there had been any legality to the process, certainly
at least the elected representatives of the people should have been given the opportunity
of examining the Constitution. This too was bypassed because it was recognized by the
Federalists at the Constitutional Convention that the state representatives would never
approve of the instrument that they had drafted. And so they devised a different way of getting
over this or around this particular obstacle by writing Article 7 to the Constitution,
which specifies that the Constitution is to be ratified not by the people at large and not by
the elected representatives of the people, but by state conventions that are to be held.
And this gave the Federalists an opportunity to have a constitutional convention in the
and the Separate States under their own management. Thus it worked out, with the passing of time,
that the various states only convened a convention for purposes of considering the Constitution
when the Federalists who were in charge in the movement had been fairly certain that
they had packed it in favor of the decision that they wanted. Thus, as Forrest MacDonald,
who has written a definitive work on the subject entitled We the People expresses it, the whole
affair was a stacked deck and the Constitution was simply railroaded through without the
legislative representatives of the people or the people themselves being called upon
to examine it or even to have anything to do with it.
One of the interesting things about the Constitution, and it is important that I make this point,
is that we have been led to believe in this country that the Constitution is such a magnificent instrument of government that it is virtually on a level with holy writ.
It is, according to some people who have praised it out of hand, an instrument or the best instrument ever struck off by the hand of man at a given instant in time.
And this kind of praise has tended to wrap the Constitution in an impenetrable wall of sanctity, which more or less shunts away the inquiring mind.
Find. We simply take the Constitution as being what the publicity concerning it said
that it was and very few of us take the time to examine it and to examine it in a penetrating
way so we can find out what it says. There are in fact a number of illusions that we have
concerning the instrument. For example, I was told when I was in school that it was
is an instrument of limited powers.
Now, that's an interesting phrase, and we should examine it to see whether or not that
is true.
Also, we have been told repeatedly that it is an instrument of checks and balances, and
there is an assumption, I think, in the minds of most people that it is an instrument that
protects their rights, that sets forth the proposition that they are innocent unless
at the time. I not only read it, but I was called upon to memorize the preamble, and
I did. And the interesting thing is that from that time on, if anybody asked me, even after
I had reached adulthood, had I ever read the Constitution, I responded truthfully that
I had indeed read it. And I would submit for your consideration that a child in the fourth
grade who may very well have read the Constitution because it was demanded of him, doesn't know
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to take a good look at the instrument itself. It is not a suppressed document. You can readily
obtain a copy, and I would suggest that the instrument itself is its own best evidence.
The thing that caused me to first take a look at the Constitution with something in the nature of
an arched eyebrow was the discovery that the names that appeared on the bottom of the Constitution
were unfamiliar to me. Now, I have been something of a buff relating early American history. I'm very
fond of reading about the marvelous exploits of the American patriots who broke with England and
declared for human rights and for human liberty and ultimately won the victory. That has a kind
I discovered that the only six names appear on both the Consulate and the Federal Reserve.
I was a little bit nonplussed, so I went back over it to find out where I had made the error,
When I discovered that the only six names appear on both the Constitution and the Declaration
of Independence, and that's a very interesting thing, because you see, when I was in school,
I had been told that we had a group of men in this country who were called the Founding
Fathers, and I had usually thought of them in connection with the Declaration of Independence.
I had simply assumed that these same men would have their names attached to the Constitution,
but I didn't find them, excepting in six cases.
So then I made a comparison to find out what the facts were, and finding only six that
repeated, I had to check into it still further to what happened to the other 50 whose names
do appear on the Declaration, but do not appear on the Constitution.
Well, three of them were dead, and obviously they had no choice in the matter.
And another twelve had been banished from the country or had left it one way or another
during the revolution.
And so that accounts for fifteen, and six are accounted for by virtue of the fact that
their names do appear.
That leaves thirty-five of the original signers of the Declaration who could have participated
in the Constitution, but who did not. And I was reluctantly led to the conclusion that
in this country we had a case of double paternity. We had two sets of founding fathers, one group
that brought about the separation from England, and who indeed were the people who came up
with the concept of rights, and then almost entirely another group of men who gave us
This is the Constitution, with, as I've pointed out, six exceptions. Well, I went over the
names of the people that were the most meaningful to me as Founding Fathers. Who were they?
Well, the people like John Hancock, Samuel Adams, Thomas Jefferson, George Mason, Patrick
Henry, people like that. Those names have, I suppose, a familiar ring to you and to me.
What were those men doing? Those names, none of those, appear on the Constitution. What
were they doing when the Constitutional Convention was going on? Well, they weren't delegates
to it. Well, what were they doing at the time the Constitution was to be ratified in the
separate state conventions? Well, they were doing all they could to keep it from being
ratified. In other words, the very people who had given us the Declaration of Independence
were almost up in arms in opposition to the Constitution. And this is a point that is usually
overlooked in your histories when you read about it, you get the impression that there is just
one group of people and they put through the Declaration and they put through the Constitution,
and here we have just this same wonderful thing going right straight through, and indeed we do
not. One group gave us the Declaration and almost an entirely different body gave us the
the Constitution.
Well, I began to cast about to find out what the opinions of these people were that caused
them to be either inactive insofar as the Constitution was concerned or actually opposed.
And I began to run across statements made by a number of people who had examined the
Constitution and had not praised it out of hand.
I'm thinking, for instance, of Lord Macaulay, one of Britain's great historians, who, in
the midst of the 19th century, was sent a copy of the Constitution, and it was expected
by the party who sent it to him that he would respond in a real flowery bit of praise of
this magnificent piece of legal ledger domain.
And instead McCauley responded, I confess, sir, to be unimpressed with your Constitution.
It is all sale and no anchor.
Now that is something of a forbidding conclusion.
So I did a little examination of Alexis de Tocqueville's great work, Democracy in America,
a two-volume study, which I believe has no parallel. It's one of the great studies in
political science extant today and still hailed by many people as one of the finest works
written in this field.
de Tocqueville came to America in the 1840s very, very much enthused about the general
idea of democracy. He had been very much opposed to the unbridled license and power of king
James.
And it seemed to him that the idea that men should elect their own governors and that the
government should be representative of their wishes was a magnificent breakthrough that
was going to lead into all kinds of good things for people.
And after arriving on these shores, de Tocqueville did express himself very favorably in respect
to the people that he saw and what they were doing.
He found it much superior to what he was familiar with in France and in the rest of Europe.
But then someone handed him a copy of the Constitution.
And after looking at it he said, I will give the people under this instrument two hundred
years from the date of its ratification until they descend under a complete despotism.
Now there is a very foreboding prophecy, and made by a man who was not really a mental
midget, a man who is obviously well-informed and who said what he did with real thought
behind it. Then he went on, in his work Democracy in America, to describe what he now detected
as the great weaknesses of democracy which he thought would lead into a kind of tyranny
that was new, but nonetheless a kind of tyranny.
So that was the reaction of de Tocqueville.
I was particularly interested in the comments of Benjamin Franklin.
Franklin is one of the names that appears on both instruments.
He signed the Declaration of Independence and he also was counted as being present at the
Constitutional Convention.
Curiously what had happened was this, it's a real cute little thing, Jefferson's opposition
to the Constitution or to the whole idea of any Constitution was so well known and so
deep that the Federalists, despaired of even having a Constitutional Convention as long
and so they contrived to get him sent to France, as our ambassador to France, before they would schedule the meeting in Philadelphia, and this they did, but in so doing they didn't relieve Franklin, who was at that time our ambassador to France, and so Thomas Jefferson walked into his ambassadorial offices, anticipating that Franklin would have long since left, and Franklin wasn't even aware
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And this gave him the opportunity.
So nothing was said, and he simply packed up and returned to America.
When he got to Philadelphia, the convention was already in progress.
So he went down to see what was going on.
The meeting was being chaired by George Washington.
But the moment Franklin came through the door into the assembly, the meeting stopped.
Everyone stood up and gave him a standing ovation because, as you well know, Franklin
Washington offered Franklin the opportunity of chairing the meeting, and Franklin accepted
it as an honor, and then asked for a copy of the Constitution, which he read.
Having read the Constitution, he then interrupted the proceedings and announced to the delegates
that he would recommend three changes.
He said that there was three places in the Constitution where unbridled power had been
granted, and these places were one in the executive branch, two in the legislative branch,
and three in the judicial branch. But he lost on all counts. Every suggestion that he made
was simply swept aside, and they went ahead and approved the Constitution as it had existed.
His own foreboding at the end of the meeting was prophetic. He said at the end,
Well, gentlemen, you have a constitution. It is not as good as we could have hoped,
but it is good as we are going to get, and it will serve us all right for a while. But
it will end in tyranny, because there is nothing within it to prevent it.