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CONSTITUTIONAL CLAIMS

We have counted the cost of this contest and find nothing so dreadful as
voluntary slavery. Honor, justice, and humanity, forbid us tamely to surrender
that freedom which we received from our gallant ancestors, and which our
innocent posterity have a right to receive from us. Our cause is just. Our union
is perfect. With an humble confidence in the mercies of the supreme and
impartial Judge and Ruler of the Universe, we most devoutly implore his divine
goodness to protect us happily through this great conflict, to dispose our
adversaries to reconciliation on reasonable terms, and thereby to relieve the
empire from the calamities of civil war. John Dickenson and Thomas Jefferson,
Continental Congress, July 6, 1775. Declaration of Causes and Necessity for
Taking Up Arms

INTRODUCTION

The Civilization which we now know and enjoy has come down to us from four
main sources. The Greeks, the Romans, and the Christians laid the foundations,
and in the order named, and the study of the early history of our Western
Civilization is a study of the work and the blending of these three main forces. It
is upon these three foundation stones, superimposed upon one another, that our
modern European and American civilization has been developed. The Germanic
tribes, overrunning the boundaries of the Roman Empire in the fourth and fifth
centuries, added another new force of largest future significance, and one
which profoundly modified all subsequent progress and development. To these
four main sources we have made many additions in modern times, building an
entirely new superstructure on the old foundations, but the groundwork of our
civilization is composed of these four foundation elements.

The work of Greece lies at the bottom and, in a sense, was the most important
of all the earlier contributions to our education and civilization. These people,
known as Hellenes, were the pioneers of Western Civilization. To the East lay
the older political despotisms, with their caste-type and intellectually stagnant
organization of society, and to the North and West a little-known region
inhabited by barbarian tribes. It was in such a world that our Western
Civilization had its birth.

The Greeks, from their geographical position, formed the natural vanguard of
European liberty against Persian ambition; and they pre-eminently displayed the
salient points of distinctive national character, which have rendered European
civilization so far superior to Asiatic.

The result of the war with Persia was the triumph of this new western
democratic civilization, prepared and schooled for great national emergencies
by a severe but effective training, over the uneducated hordes led to battle by
the autocracy of the East. This was the first, but not the last, of the many battles
which western democracy and civilization has had to fight to avoid being
crushed by autocracy and despotism. Marathon broke the dread spell of the
Persian name and freed the more progressive Greeks to pursue their intellectual
and political development. Above all it revealed the strength and power of the
Athenians to themselves, and in the half-century following the most wonderful
political, literary, and artistic development the world had ever known ensued,
and the highest products of Greek civilization were attained.

Through the whole epoch of her prosperity, through the long Olympiads of her
decay, through centuries after her fall, Athens looked back on the day of
Marathon as the brightest of her national existence. The day of Marathon is the
critical epoch in the history of the two nations. It broke for ever the spell of
Persian invincibility, which had paralyzed men's minds. It generated among the
Greeks the spirit which beat back Xerxes, and afterwards led on Xenophon,
Agesilaus, and Alexander, in terrible retaliation, through their Asiatic
campaigns. It secured for mankind the intellectual treasures of Athens, the
growth of free institutions the liberal enlightenment of the Western world, and
the gradual ascendency for many ages of the great principles of European
civilization.

Cyrus, the great Persian general, the greatest of all Eastern conquerors,
consolidated a number of provinces and kingdoms into one grand empire,
commonly known as the Persian or Medo-Persian. It embraced one hundred
and twenty-seven states or provinces, which included all the countries from the
Indus to the Mediterranean and from the Black and Caspian Seas on the north
to the Indian Ocean on the south; an empire which included some of the most
magnificent cities of the world, cities unrivaled in wealth, in beauty, in splendor
and fortifications. The Persian Empire endured for two hundred years under the
rule of the Cyrus dynasty, while the empire of Alexander the Great, which was,
as is known, the inheritor of the Persian Empire, survived only during his
lifetime, and fell apart immediately after he died. Cyrus, notwithstanding his
seeming love for war and conquest, possessed a kindly and generous
disposition. Almost universal testimony has ascribed to him the purest and most
beneficent character of any Eastern monarch. Indeed some have exalted him to
be the prototype and fore-runner of Christ. Upon the capture of Babylon he set
free the Hebrews, whom the Babylonians had held in long captivity, and aided
them in rebuilding Jerusalem and the temple, which had been sacked and
burned by Nebuchadnezzar. Cyrus exhibited a compassionate spirit toward his
enemies and a unique tolerance toward all religions. The great conqueror who
arose in Persia over 2,500 years ago did not behave as did the kings of Assyria
and Babylonia, who exiled conquered nations and imported other nations to
replace them. He also did not yearn, as did Alexander the Great and his
descendants, to smother the conquered nations with his country's culture, nor
did he make any attempt, as did the descendants of Mohammed, to impose his
language and religion upon the defeated nations. Cyrus dealt forthrightly with
the vanquished. There was no other non-Israelite ruler who merited praise from
the greatest prophets of Israel as did Cyrus from the prophet Isaiah, whom Bible
critics call by the name of Isaiah the Second:

It is I who says of Cyrus, He is My shepherd! And he will perform all My desire:


even saying of Jerusalem, She will be built, and of the temple, Your foundation
will be laid. Isaiah 44:28

Thus says YHVH to His anointed, to Cyrus, whose right hand I have taken hold
of, to subdue nations before him and loose the armor of kings, and to open
before him the two-leaved doors, so that the gates will not be shut: I will go
before you, and make the crooked places straight: I will break in pieces the
doors of brass, and cut in sunder the bars of iron: I will give you the treasures of
darkness and hidden riches of secret places: that you may know that I am
YHVH, who call you by your name, even the God of Israel. Isaiah 45:1-3

Without a doubt, Cyrus deserved this praise, not merely because of his
proclamation and the permission which he gave the Babylonian exiles to return
to their land and to rebuild the Temple in Jerusalem. Cyrus was also one of the
greatest figures, from a general historical point of view.

Cyrus' rise from governor of a small principality by the name of Anshan in Elam,
to the founder of the largest empire to arise in the world until that time, is by
itself one of the most marvelous events in the history of nations. He was
succeeded by Darius and Xerxes. The latter led a vast army of three million
soldiers besides a great number of attendants and slaves into Attica and laid
Athens into ruins, but his fleet was cut to pieces by the Grecian ships. He made
a precipitated trip back to his capital Susa, where he dwelt in his palace, which,
including the treasures, cost the enormous sum of sixty million dollars. The
Bible story of Esther throws a vivid light upon the Persians, for undoubtedly the
Ahasuerus of the Hebrews is the Xerxes of the Persians. This monarch finally
fell a victim to palace intrigue and was slain in his own chamber and with him
fell the power and supremacy of the Persian kingdom. Alexander, the son of
Philip of Macedonia, was the destined destroyer of the Persian Empire. In the
three great battles of Granicus, Isus and Arbela, the fate of the Persians was
decided. When Alexander was pushing in close pursuit of Darius, the third and
last of the Persian Kings, he came upon the body of the murdered king, who had
been treacherously assassinated by one of his own generals. He burst into tears
and covering the remains with his own mantle, said, "With this pathetic scene
closes the story of the Persian Empire." These great monarchs of the ancients
left an impression upon the world's history and civilization that will never be
erased. No student of history can believe that these great empires that existed
so many years before Christ were without a purpose, that these great
conquerors, though possessed of ignoble motives, failed to make a contribution
to civilization. These Oriental empires seem to have served a four-fold purpose
to preserve and carry forward the achievements in the arts, sciences and
philosophies of the Oriental world and transmit them, principally through
Greece and Rome, to the Western World, to prove the insufficiency of material
power, riches, grandeur, luxury and magnificence to satisfy and save man.

It appears also to have been their purpose to furnish an agency for the Judahite
Dispersion and thereby disseminate the germs of the world religion. The
Judahites, having been conquered by these Oriental monarchs, rose in frequent
rebellion, and therefore made it necessary for the warlike monarchs to conquer
them, overrun their country and carry them into captivity. Thus at one time
more than two hundred thousand Judahites were carried into captivity and the
ten tribes were scattered over the Eastern world, never again to return to
Palestine. The Judahites exerted a great influence over the heathen world
through their dispersion. They placed their religion first and by so doing
scattered the seeds of it throughout the Orient. Another purpose of these
monarchs seems to have been to chastise the Judahites and cure them of their
idolatry. Back in the time of Solomon the descendants of Abraham began to
worship idols. Their idolatry was introduced from other nations and idols were
set up in the Holy City and throughout the Holy Land. This idolatry continued to
a greater or less extent until the Judahites were carried into captivity, at which
time they saw so much idolatry among the pagans and the evils resulting
therefrom that they were forever cured of it, and from the time of their captivity
we never again hear of them worshiping idols.

After the seeds of their religion had been sown among the Orientals, Cyrus, the
great general and king, sent back to Palestine thousands of them with presents
to erect their sacred temple and to rebuild their sacred city. This was a great
boon to humanity, the restoration of the Judahites at that time to their capital
and country, and the rebuilding of their temple and their city, thus enabling
them to contribute their part to the fulfillment of prophecy and to the
preparation for the coming of the Kingdom of Heaven, whose King would
rescue the world from decay, and with his coming bring a new spiritual life into
humanity and give it a new start toward its distant and perfect goal.

The scattering of the nations of the East resulted in such divergencies of speech
that languages and dialects were multiplied until people of the same origin no
longer understood each other. There was need, therefore, of a common medium
of communication. The Hebrew was a majestic language, yet it was not so well
adapted to become a world language as the Greek. The Indo-European/Greek
language was the most perfect of the ancient languages; it was the richest and
the most delicate; it was the best adapted to the expression of the highest
thought of the intellect and the deepest feelings of the heart; it was the best
adapted to be the tongue for Christ and the apostles to teach all nations. It was
no accident, therefore, that the evangelists and apostles wrote the epistles in the
Greek, Indo-European tongue. In order that this language might be spoken
throughout the world at the advent of Christ, it was necessary that the Greeks
be great colonizers. The small territory which they originally occupied, together
with its large coast line, helped to make the inhabitants explorers, adventurers,
travelers, traders and colonizers; therefore, at an early period of history, they
were found traversing seas and lands. Miletus became the mother of three
hundred towns. Alexander and his victorious army marched throughout the East
and planted colonies, founded seventy cities, encouraged intermarriages of
races and everywhere left Greek civilization in their wake. These Greeks, like
the modern English, carried their arts, literature, philosophy, amusements,
mythology and language with them and gave them to one half the people of the
globe. In their forward march they penetrated the far East and conquered the
Orientals, from whom they learned much about a civilization far more ancient
than the Grecian. There was a fusion of the East and the West. Two modes of
thought and two civilizations came into direct contact.

Like the Greeks, the Romans also occupied a peninsula jutting southward into
the Mediterranean, but in most respects they were far different in type. Unlike
the active, imaginative, artistic, and creative Greeks, the Romans were a
practical, concrete, unimaginative, and executive people. Energy, personality,
and executive power were in greatest demand among them. The work of Rome
was political, governmental, and legal—not artistic or intellectual. Rome was
strong where Greece was weak, and weak where Greece was strong. As a result
the two peoples supplemented one another well in laying the foundations for
our Western Civilization.

Into this Roman Empire, united and made one by Roman arms and government,
came the first of the modern forces in the ancient world--that of Christianity--
the third great foundation element in our western civilization. Embracing in its
early development many Greek philosophical ideas, building securely on the
Roman governmental organization, and with its new message for a decaying
world, Christianity forms the connecting link between the ancient and modern
civilizations. Taking the conception of one God which the Israelite tribes of the
East had developed, Christianity changed and expanded this in such a way as to
make it a dominant idea in the world. Exalting the teachings of the fatherhood
of God, the brotherhood of man, the future life, and the need for preparation for
a hereafter, Christianity introduced a new type of religion and offered a new
hope to the poor and oppressed of the ancient world. In so doing a new ethical
force of first importance was added to the effective energies of mankind, and a
basis for the education of all was laid, for the first time, in the history of the
world.

The Hebraic-Christian ethic is a major source of our values. Historically our


civilization is deeply rooted in the Hebraic-Christian tradition of the Western
World.

The Hebraic-Christian ethic lays the moral foundations of democracy. It


proclaims, without qualification, the supreme worth and dignity of the individual
human being. Hebraic-Christian writings are replete with castigations of human
exploitation and the defense of the rights of common people. The principle of
equality and the affirmation of the moral worth of all men are given their most
profound social application in these lines from the Magnificat (Luke 1:46-55):

He has shown strength with His arm: He has scattered the proud in the conceit
of their heart. He has put down the mighty from their thrones and exalted the
lowly. He has filled the hungry with good things: and the rich He has sent away
empty. Luke 1:51-53

After the lapse of centuries this tradition still lives. It is therefore not surprising
that men in all ages have appealed to it and gained strength from its
affirmations when they have sought to overthrow tyrants and establish justice
on the earth. English "dissent" since the fourteenth century has invoked the
ethical teachings of the Hebraic-Christian faith in the struggle for social justice.
Probably few Americans know that it was John Wycliffe who first phrased one of
the most precious doctrines in their heritage of popular liberty. In his preface to
the translation of the Bible into the vernacular, published in 1382, he wrote
these words: "This Bible is for the government of the people, by the people, and
for the people." The Levellers with their theory of inalienable individual rights
contributed much to the development of both British and American democracy.
Their audacious couplet, "When Adam delved and Eve span, who was then the
gentleman," is an expression of militant egalitarianism.

Men like Wycliffe and Martin Luther may not have been social revolutionaries in
their time, but their very actions encouraged the peasantry to begin to agitate
for their personal freedoms, for their zeal to deliver a Bible to the masses that
could be readily understood sparked a revolution in its own right: the revolution
towards free thought and inquiry, the requisite foundation of modern
democracy. Lincoln's use of Wycliffe's phrase gave special emphasis to the
origin of our liberty in that he understood that it was Wycliffe's translation of
the Bible into English that directly resulted in the birth of self-government.
Wycliffe's translation initiated a demand for education among the English
people that resulted in them becoming the most literate people in the world.
The education of the English people gave them the intellectual independence
that empowered them to redefine the relationship between the government and
the governed and to develop the principles that are the basis for our Declaration
of Independence and our Constitution. The translation of the Bible into English
led directly to constitutional government in England and to a litany of individual
rights, particularly the freedom of thought and speech that were to shape
American political thought and politics. These convictions among the English
people eventually led to the Puritans setting out for America and resulted in the
writing of the Mayflower Compact, the first true example of self-government.

It was the English translation, specifically the KJV (King James Version) or AV
(Authorized Version), which was instrumental in the formation of today’s
modern democracy. The King James Bible had a spiritual effect on those who
attended church and heard it and on those whose prize possession it was in
their home, where for centuries it was read aloud. It has informed the English
language more powerfully even than Shakespare. It enabled the political
debates in the sevententh-century civil wars in Britain and its stories and
sentences were used from then on in the debates about rights and justice and
democracy, especially in the United States of America. It has for centuries been
both a sacred text and a fund of tales, parables, wonders and wise sayings, and
it is still today accepted by many as the very Word of God. It was a factor in
enforcing the primacy of English as the language of the new continent-nation. It
was a factor in giving its citizens a deep loyalty to the Word of God which
persists to this day. The grip that Protestanism has on the United States is
strong, and fundamentally influential in its political practices. The majesty of the
language, so transparently established in America’s great public spoken
moments, such as Lincoln’s Gettysburg Address, informs and is embraced by
the leading democratic nation on the planet. Through this bible the Protestant
voice in English became the ruling tongue of two successive world empires. It
also said to the world that Christianity was the leading faith, the Christian God
the one true God and Christ the true and only Redeemer. The bible has had
more impact on the ideology of the last four centuries than any other creed,
manifesto or dogma. The publication of the Bible in English and its reach,
through the churches, to so many people whose ancestors had been hitherto
ignorant of its content enabled there to be common debate and discussion. This
undoubtedly lay the ground for democracy.

Without the vernacular Bible—and the English Bible in particular—there could


not have been democracy as we know it, or even what we call today the ‘Free
World’. With each successive translation of the Bible, the fathers of the English
Bible began to sever their link with the papacy, the traditional head of the
Church, and were forced to find new leadership—and so began to extol the
divine right of kings and the scriptural basis for supporting them. Of course,
once England had effectively cut itself off from Rome’s authority, these same
reformers would begin to chip away at the King’s traditional power and
privileges. The result was an England with the most constitutional monarchy in
Europe for centuries, and the foundation of American democracy. The growth of
independent thought in the interpretation of the Bible was symptomatic of a
larger spirit of questioning and inquiry which marked the age.

The Hebraic-Christian ethic lays the moral foundations of peace and good will
among the nations. It proclaims the sublime principle of the brotherhood, of the
equality and essential unity of the races of mankind. "God hath made of one
blood," the prophet declares, "all nations of men." No people is morally superior
or inferior to another by reason of its physical might or its present place in
history.

The Hebraic-Christian ethic lays the moral foundations of a humane society. It


conceives man as a moral creature living in a moral order. According to this
conception, the world is marked by good and evil and man is potentially capable
of distinguishing the one from the other. The good life is a life disciplined by
good purposes and devoted to good deeds. When Lincoln in his second
inaugural, as the bitter civil struggle was drawing to its close, uttered the words,
"with malice toward none, with charity for all," he was speaking in the tradition
of the Hebraic-Christian ethic.

America has a unique and glorious heritage. Although every country or people
has its own past in which it naturally feels pride, we know that our history has
followed a most unusual course. This land that became America was settled
more swiftly than any other; and the great migrations hither were unlike the
migrations of other times. They were marked by the deliberate choice of
individuals and families to move to a happier sphere where life would be freer
and richer. Moreover, as the decades passed into generations, America came to
represent something distinctive in the long human struggle. She came to
symbolize certain ideas, certain values, and a certain way of life which had more
than national significance. We can say this without depreciating the heritages of
other peoples or voicing the bigotry of narrow nationalism, for America was
built by the labors of the sons and daughters of many races and nations. "Every
people of Europe," wrote Francis J. Grund in 1837 with pardonable
exaggeration, "is represented in the United States; every tongue is spoken in
the vast domain of freedom; the history of every nation terminates in that of
America." Ever since we embarked on our revolutionary experiment in popular
rule we have been the source of hope to the oppressed classes of the earth.
Washington in his first inaugural put this hope into words which were heard
beyond the Atlantic. "The preservation of the sacred fire of liberty and the
destiny of the republican model of government," he said, "are justly considered
as deeply, perhaps as finally staked, on the experiment intrusted to the hands of
the American people." A generation later Daniel Webster in his Bunker Hill
Oration reaffirmed the faith of the Father of the Republic: "If, in our case, the
representative system ultimately fail, popular governments must be pronounced
impossible. No combination of circumstances more favorable to the experiment
can ever be expected to occur. The last hopes of mankind, therefore, rest with
us; and if it should be proclaimed that our example had become an argument
against the experiment, the knell of popular liberty would be sounded
throughout the earth." In rallying his people for the supreme effort in the
darkest days of civil struggle Lincoln, the Great Emancipator, spoke of the
American Union as "the last best hope of earth." A few years later, while the
memories of fratricidal strife were still fresh, Longfellow gave immortal
expression to this sentiment in his The Building of the Ship: "Humanity with all
its fears, with all the hopes of future years, is hanging breathless on thy fate!"
And even Karl Marx, joint author of the Communist Manifesto, unsentimental
and tough-minded apostle of world revolution, suggested in 1872 that in
England, Holland, and the United States "the workers may hope to secure their
ends by peaceful means." Whatever our present merits, whatever our future
may hold, we possess a glorious heritage. Although the great peoples of Europe
and Asia have far longer records of achievement, the story of the rise of the
American democracy within a few generations from the status of a European
colony to a position of unsurpassed power in the world is one of the truly great
epics of history. We of course have known the agony of internal conflict, and we
have often been false to our finest traditions. We have sometimes stoned our
prophets, nourished barbarous prejudices, winked at injustice, practiced
shameless bigotry, condoned corruption in high places, neglected the general
welfare, worshiped the "bitch goddess of material success," waged wars of
aggression, and tolerated the most callous exploitation of man by man. Yet as a
people we do not celebrate these things. On the contrary, we deplore them and
would expunge them from the record. We cherish as the true expression of our
genius our incomparable declarations of human rights, our achievements in the
realm of popular rule, our conquests of natural forces, and our many struggles
at home and abroad for liberty and justice. Ours has been a peculiarly happy
and favored land, a land of opportunity and hope, a land of vast horizons and
unlimited promise. Ours has also been a sheltered land. Never have we felt the
iron heel of the conqueror; nor have we ever seen our republic swept from
border to border by the fire and sword of foreign armies.

The spirit of the new age found an easier birth in North America. This new land
was discovered and settled as the social system and the intellectual outlook of
the Middle Ages were disintegrating. It was settled, moreover, largely by people
who in their national, religious, and class origins were most closely identified
with the new forces. It was settled chiefly in the early days by Englishmen, and
by poor, young, adventurous, dissenting, and even outcast Englishmen a people
who was already engaged in a sustained struggle for individual and political
liberty a people who at the time was in the vanguard of the march toward
popular government. From the beginning America was also a haven of refuge
for men and women of many nations fleeing the oppressions and tyrannies of
feudal institutions. The whole continent was a virgin seed-bed for the
"dangerous thoughts" then agitating the Old World. In remarkable measure,
those who came to America were able to cast off the fetters of the past and
make a fresh start in building a freer and better way of life. Although attempts
were made to establish feudal ideas and institutions in America, these attempts
were never really successful. "America was opened after the feudal mischief
was spent," wrote Ralph Waldo Emerson in 1878, "and so the people made a
good start. We began well. No inquisition here, no kings, no nobles, no
dominant church. Here heresy has lost its terrors."

CLAIMS

Claim # 1. We claim that the American people are a peculiar people. They are
peculiar in their origin, peculiar in their make-up, and due to their sufferings,
their persecutions and their enduring perseverance, they are still a peculiar
people. From the first white man to steer his little wooden ship westward across
the great Atlantic ocean—to the latest arrival among the most recent
immigrants—the people coming to America have been different from those
people remaining in their European homes.

Claim # 2. "Americanism" relates to democracy, into which enter all the


elements, all the impulses and emotions of men, women and children.
"Americanism" teaches not only the relation of the states to the national
government, and the relation of citizens to both the state and the national
government, but it also teaches the relation of men, women and children toward
each other.

This is a Government by the people, and therefore we must understand the


people in order that we, the people, may govern. To arouse patriotism and
loyalty we must do more than develop the powers of the mind, do more than
expand the field of knowledge. We must inspire in the heart, faith, confidence
and love. Men must not only learn how to govern, but they must learn how to be
governed. We must not only learn to command, but also to obey. Our spirits
must be so molded that we can submit to duly constituted authority, submission
to which is the most lofty expression of American patriotism. Submission to
authority in America is submission to law, for no man in this country has any
authority to command or direct a fellow man, except as the law made by the
people vests him with such authority. To inspire devotion to our country, we
must arouse in the hearts of our people a sense of gratitude for the blessings
which come to us because we live in free America, gratitude for the rights and
liberties which we possess, which are protected by the guarantees of a written
constitution adopted by the people themselves. There is only one way in which
the average person may be brought to see what America has done for him, and
that is by contrasting the rights, privileges and opportunities which he has with
those possessed by others in the same walk of life before the constitution
became the bulwark of the people against injustice and wrong.

In America the rights of the people are supreme. The state exists for man, not
man for state. The rights of the people, are of first importance in a nation where
men, women, and children are free. The state and the Nation have no rights
except those given them by the people. Strictly speaking the Nation and the
state have no "rights" but only the duty to exercise certain powers in the
protection of the liberties of the people.

The faith of our fathers can only be firmly established by lighting the fires of
patriotism and loyalty in the hearts of our children. Through them the great
truths of our national life can be brought into the homes of the land. And the
nation will never be safe until the Constitution is carried into the homes, until at
every fireside young and old, shall feel a new sense of security in the guarantees
which are found in this great charter of human liberty, and a new feeling of
gratitude for the blessings which it assures to this, and to all future generations.
Everyone who understands human nature will admit that to mold the spirit, to
inspire faith, and to excite gratitude training must begin in childhood. The child
must learn: (a) What authority means. (b) The source of authority. (c) In whom
authority rests; in the parent, in the teacher, and in public officers selected by
the people to enforce the authority of the community, of the state, and of the
nation. (d) How the authority of the people, the community, the state and the
nation is expressed through laws which are nothing but rules of human
conduct. (e) How we should respect authority and submit to authority. (f) How
and by whom those who will not yield obedience to authority out of respect, will
be compelled to obey by punishment.

One of the chief objects of furnishing free education to children, rich and poor,
is to make of them good law abiding citizens; citizens who know what authority
is; citizens who will obey the voice of authority; citizens who realize that
authority in this country rests in the people themselves; citizens, men and
women, who realize that they owe a duty to their country and their fellow men,
to do all they can to keep America the most free and the most just country in the
world. No American child should leave school without a full knowledge of the
government of our country; nor until he has in his heart, loyal devotion to
America, and to the stars and stripes, the emblem of the free.

We have great faith in the power and beneficence of education. From early
times we have identified education with the advance of civilization. During
colonial days, even as we struggled to survive in a strange land, we nurtured
this faith. The founders of the Republic, under the influence of the revolutionary
thought of the age in both Europe and America, believed that the strength of the
new nation would depend on the spread of learning and enlightenment. "If the
condition of man is to be progressively ameliorated, as we fondly hope and
believe," wrote Thomas Jefferson, father of American democracy, in 1818,
"education is to be the chief instrument in effecting it." The great champions of
popular liberty throughout our national history have generally insisted that the
survival of free institutions requires an educated people. Horace Mann, father of
the common school, expressed the sentiments of generations of Americans
when he said: "The Common School is the greatest discovery ever made by
man." When confronted with difficult personal or social problems in the present
critical epoch, we are inclined to turn to education as an unfailing solution. And
today American educators would carry this faith round the globe through
UNESCO. If illuminated with understanding and applied with wisdom, it should
constitute a powerful resource in the current struggle for a free and peaceful
world.

Students of our civilization, both native and foreign, have remarked this faith.
William Graham Sumner once referred to it as a "superstition of the age." Clark
Wissler included "mass education" among the three "dominant characteristics
of our culture." The great Frenchman, Alexis de Tocqueville, perhaps the most
brilliant and penetrating student of our institutions from beyond the Atlantic,
observed in 1831 that "the universal and sincere faith that they profess here in
the efficaciousness of education seems to me one of the most remarkable
features of America." Although he did not share fully this faith himself, he did
list the "diffusion of useful education" among ten factors contributing to the
success of democracy in America over one and a half centuries ago. Our historic
faith in education has been translated into vigorous and sustained action. In
1837 Francis J. Grund, a Bohemian-born and Austrian-educated American
writer, observed that "with the exception of Protestant Germany, there is no
country in which so much has been done for the education of children, as in the
United States of America." During the succeeding century we developed a
comprehensive system of public schools which has challenged and influenced
the educational thought and practice of the Old World. In our justly celebrated
"educational ladder" we repudiated the European aristocratic idea of separate
schools for the "classes" and the "masses" and established the principle of a
single educational system for all the people. Reaching from the kindergarten to
the graduate and professional faculties of the university and designed to shatter
the time-honored social barriers to advanced training, it is one of the finest and
most distinctive expressions of our democracy.

In his Farewell Address to the American people, written in 1796, Washington


said: "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." Jefferson spent the years 1784 to 1789 in Paris, and became a
great propagandist in America for French political ideas. Writing to James
Madison from France, as early as 1787, he said: "Above all things, I hope the
education of the common people will be attended to; convinced that on this
good sense we may rely with the most security for the preservation of a due
sense of liberty." In 1779, then, as a member of the Virginia legislature,
Jefferson tried unsuccessfully to secure the passage of a comprehensive bill,
after the plan of the French Revolutionary proposals, for the organization of a
complete system of public education for Virginia. The essential features of the
proposed bill were that every county should be laid off into school districts, five
to six miles square, to be known as "hundreds," and in each of these an
elementary school was to be established to which any citizen could send his
children free of charge for three years, and as much longer as he was willing to
pay tuition; that the leading pupil in each school was to be selected annually
and sent to one of twenty grammar (secondary) schools to be established and
maintained at various points in the State; after two years the leaders in each of
these schools were to be selected and further educated free for six years, the
less promising being sent home; and at the completion of the grammar- school
course, the upper half of the pupils were to be given three years more of free
education at the State College of William and Mary, and the other half were to
be employed as teachers for the schools of the State. Though the scheme failed
of approval, Jefferson never lost interest in the education of the people for
intelligent participation in the functions of government. Writing from Monticello
to Colonel Yancey, in 1816, after his retirement from the presidency, he wrote:
"If a nation expects to be ignorant and free in a state of civilization it expects
what never was and never will be...There is no safe deposit (for the functions of
government) but with the people themselves; nor can they be safe with them
without information."

In 1819 the founding of the University of Virginia crowned Jefferson's efforts for
education by the State. This institution, the Declaration of Independence, and
the statute for religious freedom in Virginia stand today as the three enduring
monuments to his memory. Other of the early American statesmen expressed
similar views as to the importance of general education by the State. John Jay,
first Chief Justice of the United States, in a letter to his friend, Dr. Benjamin
Rush, wrote: "I consider knowledge to be the soul of a Republic, and as the
weak and the wicked are generally in alliance, as much care should be taken to
diminish the number of the former as of the latter. Education is the way to do
this, and nothing should be left undone to afford all ranks of people the means
of obtaining a proper degree of it at a cheap and easy rate." James Madison,
fourth President of the United States, wrote: "A satisfactory plan for primary
education is certainly a vital desideratum in our republics. A popular
government without popular information or the means of acquiring it is but a
prologue to a farce or a tragedy, or, perhaps, both. Knowledge will forever
govern ignorance; and a people who mean to be their own governors must arm
themselves with the power which knowledge gives." John Adams, with true New
England thoroughness, expressed the new motive for education still more
forcibly when he wrote: "The instruction of the people in every kind of
knowledge that can be of use to them in the practice of their moral duties as
men, citizens, and Christians, and of their political and civil duties as members
of society and freemen, ought to be the care of the public, and of all who have
any share in the conduct of its affairs, in a manner that never yet has been
practiced in any age or nation. The education here intended is not merely that
of the children of the rich and noble, but of every rank and class of people,
down to the lowest and poorest. It is not too much to say that schools for the
education of all should be placed at convenient distances and maintained at the
public expense. The revenues of the State would be applied infinitely better,
more charitably, wisely, usefully, and therefore politically in this way than even
in maintaining the poor. This would be the best way of preventing the existence
of the poor...Laws for the liberal education of youth, especially of the lower
classes of people, are so extremely wise and useful that, to a humane and
generous mind, no expense for this purpose would be thought extravagant."

Having founded, as Lincoln so well said later at Gettysburg, "on this continent a
new nation, conceived in liberty, and dedicated to the proposition that all men
are created equal," and having built a constitutional form of government based
on that equality, it in time became evident to those who thought at all on the
question that that liberty and political equality could not be preserved without
the general education of all.
It must be emphasized that organized and deliberate education does not reflect
a civilization. Nor is it derived automatically through a process of assembling
and analyzing data. Always at the point where an educational program comes
into being definite choices are made among many possibilities. The formulation
of an educational program is a creative act, or rather a long series of complex
creative acts. It is a threefold process embracing analysis, selection, and
synthesis. It always involves choice among possibilities, and even decision as to
what is possible. It likewise involves the affirmation of values and the framing of
both individual and social purposes. Inevitably education conveys to the young
responses to the most profound questions of life questions of truth and
falsehood, of beauty and ugliness, of good and evil. A great education always
expresses a great conception of civilization. An education can rise no higher
than the conception of civilization that pervades it, gives it substance, and
determines its purpose and direction. If America has presented any thing new to
the world, it is a new form of society; if she has any thing worthy to preserve, it
is the principles upon which that society is instituted: hence it is not a Grecian
or a Roman education we need - it is not one conceived in China, Persia, or
France. On the contrary, it must have all the characteristics of the American
mind, fresh, original, vigorous, enterprising; embarrassed by no artificial
barriers, and looking to a final conquest over the last obstacles to the progress
of human improvement. The time has arrived to relate our thought about
education to the whole sweep and substance of our American civilization: its
history, its finest traditions, its present condition, and its promise. We must
proceed without delay to develop a great conception of our civilization. The age
now unfolding is the most critical age of our history. We face deep troubles at
home, powerful revolutions and counterrevolutions abroad, unprecedented
responsibilities in the world, a future of almost limitless possibilities for good
and evil. In the decades ahead our democracy may be transformed into some
form of totalitarian despotism or it may march from triumph to triumph and
fulfill gloriously and nobly the historic promise of America.

Every people is influenced profoundly by its heritage. What a people can or


cannot do, even what it may dream, is always conditioned and limited by its
traditions. Although vast changes are coming in all contemporary societies,
those changes will inevitably be affected deeply by the past of each. This truth
has been demonstrated on a gigantic scale in our time. The Bolshevik
Revolution, probably the most radical and deliberately conceived effort of all
ages to break the continuum of history, became more Russian with every
passing year. Launched in the name of a body of social doctrine developed in
western Europe and led chiefly by men and women who had lived for many
years in foreign lands, it moved swiftly under the direction of powerful and
deep-running currents of Russian history and civilization. Carrying the banners
of freedom and democracy, it sought to fasten on the world the absolutism of
ancient Muscovy. In contrast, the British people in the recent war maintained
their political liberties during the darkest hours of the conflict when even their
friends throughout the world scarcely dared hope they would survive. Fortunate
is a people during these troubled times whose history records centuries of
struggle for individual liberty, whose political heritage includes the Great
Charter, the English Bill of Rights, the Declaration of Independence, the Federal
Constitution, and the Gettysburg Address. Fortunate indeed is a people whose
dearest traditions proclaim that "to no one will we sell, to no one will we refuse
or delay, right or justice," that "all men are created equal," that "government of
the people, by the people, for the people, shall not perish from the earth." While
a tradition may bind and restrain, it may also free and inspire. Even though a
great tradition of human liberation may be violated in practice, it places a
powerful weapon in the hands of those who in any generation would battle for
"right or justice."

Claim # 3. IGNORANCE OF THE LAW EXCUSES NO MAN. The principle of


ignorantia legis non excusat—ignorance of the law does not excuse—is perhaps
the most well-rooted maxim in the Anglo-American criminal law. Ignorantia
legis non excusat—ignorance of the law does not excuse—is a centuries-old
criminal law maxim familiar to lawyer and layperson alike. Under the doctrine,
an accused finds little protection in the claim "But, I did not know the law," for
all are presumed either to be familiar with the law’s commands or to proceed in
ignorance at their own peril. The ignorant must be punished along with the
knowing, the maxim teaches, to achieve a better educated and more law-
abiding populace and to avoid the easy-to-assert and difficult-to-dispute claim of
ignorance that would otherwise flow from the lips of any person facing criminal
punishment. The principle’s terminology has varied slightly over the centuries,
but its core idea has not. See Edwin R. Keedy, Ignorance and Mistake in the
Criminal Law, 22 Harv. L. Rev. 75, 76 n.1 (1908) (noting that the maxim has
been variously stated as “ignorantia legis neminem excusat,” “ignorantia
eorum, quae quis scire tenetur, non excusat,” “ignorantia juris, quod quisque
tenetur scire, neminem excusat,” and “ignorantia juris haud excusat”). It has
been recognized by courts and legal thinkers for centuries, it has been enacted
into law, and it is familiar to jurist and layperson alike. Almost the only
knowledge of law possessed by many people is that ignorance of it is no excuse.
See, e.g., Ariz. Rev. Stat. Ann. § 13-204 (West 1989) (declaring that “ignorance
of the law does not relieve a person of criminal responsibility”); Ga. Code Ann. §
1-3-6 (1990) (stating that “ignorance of the law excuses no one”); Okla. Stat.
Ann. tit. 21, § 152 (West 1983) (declaring that “ignorance of the law does not
excuse from punishment for its violation”); S.D. Codified Laws § 22-3-1 (Michie
1998) (stating that “ignorance of the law does not excuse a person from
punishment for its violation”). Under the maxim, individuals can be criminally
punished when they engage in prohibited conduct even when they are not
familiar with, or do not fully understand, the law’s commands. Citizens are
compelled either to know the law or to proceed in ignorance at their own peril.
While sometimes harsh, the gains secured by the maxim—a better educated
and more law-abiding citizenry, and the avoidance of pervasive mistake of law
claims—are thought to outweigh any individual injustice resulting from its
application. Despite this country’s long-standing allegiance to the hoary maxim,
over the last century, and in particular over the last decade, the courts have
seriously eroded the ignorantia legis principle by frequently construing the
mens rea term “willfully” to require proof of an accused’s knowledge of the law.

The ignorantia legis maxim is of ancient vintage, dating back at least as far as
the days of the Roman Empire. See 4 William Blackstone, Commentaries On The
Laws Of England 25 (Charles M. Haar ed., Beacon Press 1962). Other writers
claim that the doctrine descends from Norman or possibly pre-Norman absolute
liability rules. Legal scholars have described the Roman maxim primarily as a
concept of civil law, which was founded on the straightforward (if fictitious)
rationale that the law was certain and capable of being ascertained. Thus, in
litigation, positive proof of a citizen’s knowledge of the law’s requirements or
proscriptions was not required. Rather, citizens were presumed to be familiar
with the law, for it was not the function of the Roman law “to aid the fools.”
Vera Bolgar, The Present Function of the Maxim Ignorantia Juris Neminem
Excusat—A Comparative Study, 52 Iowa L. Rev. 626, 631 (1967). Even from
these early beginnings, however, application of the maxim was subject to
important, if limited, exceptions when the law was not, in fact, definite and
knowable. Despite widespread acceptance of the maxim, Roman law permitted
certain groups of persons to claim ignorance of the law as a defense. The very
young, for example, were considered to be incapable of comprehending
important aspects of the law and thus were permitted to excuse their deviant
behavior by claiming ignorance of the law’s requirements or restraints. So too
might disenfranchised women, soldiers away from home, and peasants and
other persons of small intelligence escape penalty by claiming unfamiliarity with
certain of the law’s commands. The common link between these disparate
groups appears to be that they were all thought to lack some essential quality
that would enable them to appraise or know the law, such as aptitude (women
and members of the underclass), maturity (children) or notice of the law’s
enactment (absent soldiers). Latitude for error was accorded these people so as
not to penalize them for failing to meet legal obligations that were, to them,
either unknown or unknowable. The Roman reprieve extended only so far,
however. Although these disparate groups of Roman citizens were considered
to be incapable of knowing the jus civile (the body of civil law that governed
Roman relations), they were expected to know and comply with the jus gentium
(the system of laws that “natural reason” had settled among all persons
everywhere). As generously put much later by legal commentator John Austin,
because these persons did not fall within the state of “general imbecility,” they
could be expected to know the jus gentium, which was based on principles of
natural reason presumptively understood by all. 1 John Austin, Lectures On
Jurisprudence 500 (Robert Campbell ed., 4th ed. 1873) (1861). The Roman
distinction between the jus gentium and the jus civile parallels contemporary
arguments made in the criminal context that mistakes of law should excuse
mala prohibita but not mala in se offenses.
In England, the maxim took on a less forgiving cast. Although it appears that the
maxim originated in civil actions under Roman law, the English courts
permitted it to control the outcome of criminal actions as well. In addition, the
English common law courts defined the distinction between claims of ignorance
or mistakes of law and mistakes of fact. Mistakes of pertinent fact were
generally considered to provide a defense, while mistakes of law generally were
not. Early commentators on the English maxim defended it on the same
rationale that the Romans had employed: the law was “definite and knowable”
so it was fair to demand the compliance of anyone who possessed sufficient
capacity to know it. While the very young and the mentally incompetent were
afforded some latitude for error under this rationale, all other subjects of the
realm were obligated to know the law, and presumed to do so. Later, however,
British legal theorists began to offer utilitarian rationales for the principle—the
fear that without the maxim the defense of ignorance of the law would be
abused (all would claim ignorance to avoid punishment) and the concern that
feigned claims would be impossible to refute. Despite the English devotion to
the ignorantia legis maxim, important (though limited) exceptions to the maxim
existed under English law, just as they had under Roman law. In both systems
considerations of equity induced the courts to deviate from the rule if arising
cases did not expressly warrant its application. As with the Roman and British
versions, the American version of the principle was frequently articulated in
lofty terms: every man “of reasonable understanding is presumed to know the
law, and to act upon the rights which it confers or supports,” and “it is culpable
negligence in him to do an act . . . and then to set up his ignorance of law as a
defence.” 1 Joseph Story, Commentaries On Equity Jurisprudence, § 209, at
212; see also Letter from Thomas Jefferson to Andre Limozin (Dec. 22, 1787), in
12 The Papers Of Thomas Jefferson 451 (Julian P. Boyd ed., 1955) (“Ignorance
of the law is no excuse in any country. If it were, the laws would lose their
effect, because it can always be pretended.”). Despite its familiarity and wide
usage, the ignorantia legis principle has been seriously eroded over the last
century, and in recent years, this erosion has threatened to become a landslide.
At one time the list of exceptions to the maxim was quite short, but the courts of
the twentieth century have quietly expanded it. The number of federal criminal
statutes under which courts have abandoned the maxim is now particularly
large, and challenges based on ignorance or mistake of law grounds in the
federal courts are both common and frequently successful. Although often used
interchangeably, “ignorance” of the law and “mistake” of law denote two
different concepts. A person who acts in ignorance of the law acts in a state of
unawareness as to the law’s existence. A person who acts under a mistake of
law is aware of the existence of a law controlling her behavior but
misunderstands what the law prohibits or commands. Despite the conceptual
differences between the terms, courts and commentators frequently use the
terms interchangeably and consider both states of mind subject to the
ignorantia legis maxim. Duke Law Journal Volume 48 December 1998 Number
3
"Ignorance of the law excuses no man; not that all men know the law, but
because ‘tis an excuse every man will plead, and no man can tell how to refute
him." John Selden, Law, in Table-Talk (1689), quoted in The Quotable Lawyer
133 (David S. Shrager & Elizabeth Frost eds., 1986)

"The thorough education of all classes of the people is the most efficacious
means, in my opinion, of promoting the prosperity of the South. The material
interests of its citizens, as well as their moral and intellectual culture, depend
upon its accomplishment." Robert E. Lee, letter to John B. Gordon, written
December, 1867

"In a Republic education is indispensable. A Republic without education is like


the creature of imagination, a human being without a soul, living and moving
blindly, with no just sense of the present or the future." Charles Sumner, Cong.
Globe, 40th Cong., 1st Sess. 166-67 (1867)

All those who attempt to teach Americanism to foreigners, and to Americans,


must be prepared to answer this question: "WHAT HAS AMERICA DONE FOR
ME AND FOR MY CHILDREN?" It can only be answered, by teaching the
individual guarantees of the Constitution of the United States, and of the States,
which protect life and liberty and property. It can only be answered by
convincing the people that this is a land of justice and of opportunity for all; that
if there be abuses, they are due not to our form of government, but that the
people are themselves to blame, because of their ignorance of their rights, their
failure to realize their power, and their neglect of those duties which citizenship
imposes.

We live today in deeply troubled times. For a generation now we in America


have felt ourselves living in a world increasingly strange and even terrifying. We
have known an endless succession of crises at home and abroad. We have
watched tragedy compounding tragedy in ever-mounting fury. We have seen
our seemingly well-founded hopes ground under the heel of events. The solid
verities and certainties of the nineteenth century seem to have vanished.
Nothing appears to be secure and enduring. Social institutions, human
relations, value systems, and conceptions of life and destiny are in flux.
Thoughtful men and women everywhere are anxious and fearful about the
future. After a retreat of centuries despotism is on the march again. We have
experienced a great economic disaster at home. We have participated in two
great wars beyond our borders in a single generation. Today we fear the coming
of a third war that might well destroy democratic civilization everywhere and
push mankind as a whole back toward barbarism. We have witnessed
revolutions and counterrevolutions in both hemispheres. Out of the revolutions
and counterrevolutions of the period emerged the totalitarian state with its party
dictatorship, its regimentation of the mind, its forced labor camps, and its
ruthless suppression of all democratic liberties. We have seen millions of
oppressed people turn with apparent enthusiasm to despotism as a way out of
difficulty and insecurity. We have witnessed a degeneration of morals and a
calculated revival of barbarism. In the totalitarian states, whether Fascist or
Communist, brute power has been used without mercy arid without restraint to
break the will of peoples and to convert the individual into an automaton. The
glorification of the lie, the refinement of human torture, and the practice of
political murder on a vast scale have been developed into powerful instruments
of rule. The sadistic impulses of the degenerate have been harnessed to the
aims of dictatorship.

We have come to the end of an era. All peoples are living in a period of most
profound social and cultural transition. We in America have come to the end of
an age that began with the first settlements along the Atlantic seaboard in the
early decades of the seventeenth century. Even the great events that attended
first the founding and later the preservation of the Republic were less disturbing
and explosive than those that beat upon us today. Both in our domestic affairs
and in our relations with the rest of the world we are confronted with new
conditions, new dangers, and new possibilities. With great reluctance and many
misgivings we seem to be abandoning our traditional policy of national
isolation. Although we were never isolated in any complete sense from the Old
World, the great oceans east and west served for almost three centuries as
powerful barriers against successful aggression from Europe and Asia. In his
Farewell Address in 1796 Washington warned against forming "permanent
alliances with any portion of the foreign world" and entangling "our peace and
prosperity in the toils of European ambition, rivalship, interest, humor, or
caprice." A little more than a generation later Alexis de Tocqueville placed
second among the ten "causes" of the success of our democracy "geographical
position" "no neighbors." For a century thereafter we nurtured and cherished
the faith that, if we but cultivated our own garden, we could live in safety behind
the ramparts provided by nature. As George F. Kennan has said in his
thoughtful survey of our foreign policy since 1900, "a half-century ago people in
this country had a sense of security vis-a-vis their world environment such as I
suppose no people had ever had since the days of the Roman Empire." But the
conquests of space, accompanied by an ever-growing physical integration of the
world, have gradually undermined the historical foundations of the policy of
isolation. At the end of the nineteenth century, as a phase of the struggle with
Spain, we seized by force of arms island territories on the far side of the globe.
In 1917 and again in 1941 we were drawn into world conflicts against our hopes
and expectations. Our decision in 1945 to join a world organization of nations
appears to have put the final seal on the epoch that opened in the early years of
the seventeenth century. Today we are exposed to every storm that sweeps the
earth.

We have become the first power on the planet. We began our national career
over two hundred years ago as a feeble outpost of European civilization. The
great military states of the Old World were little concerned over our policies and
actions. Our weight in the affairs of nations, except as they might involve the
fate of North America, was not seriously regarded. Today we stand before the
world as the mightiest state of all history. Our power is so great that what we do
or fail to do will affect profoundly the course of history during the critical years
ahead. Without our agriculture millions will die who otherwise would live.
Without our trade based on full production the economy of the world will be
depressed. Without our technical assistance industrially backward countries will
be retarded in their efforts to raise standards of living. Without our vigorous,
sustained, and informed support the world organization now in its infancy is
certain to perish. Whether we like it or not, we are being cast by history in the
role of the foremost guardian of the heritage of human freedom in the present
epoch. Unfortunately, our understanding and sense of responsibility still lag
behind our strength.

We are entering a new age in our history and in the history of mankind. The old
order is passing away. Powerful revolutionary and counterrevolutionary
movements have been engaged in a ruthless struggle for mastery. The recent
war itself was a phase of this struggle. But our troubles continue even though
the Axis powers were vanquished over sixty years ago. In fact the whole free
world today confronts an adversary far surpassing in potential might the
combined strength of Germany, Italy, and Japan, equally aggressive and
probably more patient and determined. Also it faces anew the conditions out of
which dictatorship came, and will come if those conditions are allowed to
persist. In their relations with the East the free peoples of the West are today
reaping the bitter harvest of the exploitation of the weak by the strong, for the
weak are becoming strong. Unless those who love freedom also love justice and
are prepared to move swiftly and surely to correct the mistakes of the past, they
may find themselves outmaneuvered by Communism, a resurgent Fascism, or
some form of totalitarianism yet to appear.

We are challenged today by the rise of "popular despotisms." Our priceless


heritage of individual liberty and our tradition of popular rule through
democratic processes are in grave peril. The threat comes from deep-seated
troubles throughout the world and from competing conceptions of life and
society thrown up by revolutionary and counter-revolutionary movements of the
age. Our social and political system, to be sure, aroused from the day of its birth
the hostility of the autocracies and despotisms of the Old World. But we
generally regarded these adversaries as survivals from the past and destined to
be swept aside by the spread of enlightenment and the irresistible struggle for
the emancipation of the human race. America was the "haven of refuge" for the
oppressed and the "land of the free" for all who could reach her shores. We
were certain that history itself was working on our side and that our political
ideas in their essence would triumph everywhere. For generations this view was
widely shared by exploited classes and idealistic elements of the countries of
Europe. With the opening of the twentieth century those hopes appeared to be
on the way to fulfillment. Autocratic and despotic governments were
increasingly on the defensive. In the Orient, as well as in the Americas and
Europe, monarchs were being overthrown or shorn of their powers, republican
institutions were being established, and popular rights and liberties were being
guaranteed by the laws. Human freedom seemed clearly to be on the road to
universal victory. Consequently, at least to most Americans, the crumbling of
the Romanov, Hapsburg, and Hohenzollern dynasties toward the end of the First
World War demonstrated that the conflict had been in reality a "war to make the
world safe for democracy." Few indeed foresaw that amid the ruins of these
ancient autocracies would arise new despotisms which would far surpass in
tyranny the regimes they displaced.

We face great tasks in the coming years and decades. We can see clearly now
that the winning of the recent war merely gave men another opportunity for
removing the conditions out of which war and tyranny came. A new world is
being born; a new civilization is being built. This we know. But that the new
world and the new civilization will be better than the old is far from certain. All
we can be sure of is that we shall have another opportunity to make them so. If
we fail, as we did during the period between the wars, a generation hence men
of humane and liberal outlook, if such survive, may look back wistfully to the
nineteenth as the most glorious and civilized of all the centuries. The
performance of several great labors is clearly imperative. We must achieve a
just and durable peace. The world has become so small and the nations so
closely bound together that no single country, however powerful, can stand
apart from a general conflict. The fate of each has become linked with the fate
of all. War and peace alike have become indivisible. The material and moral
costs of war have become unbearable. We must fashion at home a stable
economy capable of bringing opportunity, security, and well-being to all. That
the tyrannies of Europe and the great war itself came in part out of the
economic miseries of the people can scarcely be questioned. If we should fail to
solve our own economic problems, if we should experience another great
depression, comparable in scope and depth to that of the nineteen-thirties, we
would encourage the advance of Communism in the world, and we might even
witness the raising of the banners of the crooked cross here in America.
Whenever millions of ordinary people lose faith in their institutions, experience
a deep sense of insecurity and frustration, feel uncertain, anxious, and fearful
about the future, the way is open for the rise to power of the contemporary
totalitarian dictator. That even our democracy, strong and deeply rooted in our
history as it is, would weather another all-embracing economic storm certainly
should not be taken for granted.

We must preserve and strengthen the great tradition of political liberty. The
importance and urgency of this question can hardly be overemphasized.
"Although political freedom is not the only type of freedom in culture," writes
the celebrated anthropologist, Bronislaw Malinowski, "yet its absence destroys
all other liberties." Fundamental to the achievement of our goal is of course the
establishment of a stable economy and the maintenance of full employment and
full production. But far more is demanded. We know that full employment and
full production of a kind may be accompanied or even achieved by political
tyranny. The experience of our times shows that if men are forced to choose
between jobs and political liberty, many will choose jobs, or even the promise of
jobs. The historic task of our people in the present age is to demonstrate that
economic stability can be achieved under a regime of political liberty. Nothing
less than the fate of our democracy hangs in the balance. We must therefore be
always on our guard against every proposal either to achieve economic stability
or to protect political liberty by resort to totalitarian methods. We must extend
the benefits of our democracy to all of our people. In our origins we are a
country of many races, nations, and religions. To our shores have come
immigrants from all the continents and from many of the islands of the sea. We
must strive to improve the quality of living in America. Peace and work, liberty
and equality are vastly important today, as always. But they fail to comprehend
the full task before us. Our economic conquests should provide the material
foundation for the flowering of the human spirit in the simple relationships of
life, in the conduct of our common affairs, in the architecture of community and
nation, in the realm of science and thought, and in all the great arts of
expression and communication. Only with such a generous and humanistic
conception will our democracy fulfill itself.

We must develop an education equal to these great tasks. That such tasks
cannot be accomplished by education alone is of course readily granted. Yet it is
equally evident that they will never be accomplished without the assistance
which organized education can provide. The time calls for greatness in every
department of life. It calls for the highest qualities of character in our leadership
and in ourselves as a people. It calls for understanding, for courage, for wisdom,
for tolerance and charity on the part of all groups and classes. It calls upon us to
display in the waging of peace the resourcefulness, the energy, the
steadfastness, the devotion to the common good that enabled us with our valiant
associates among the United Nations to wage and win the most terrible and
destructive of wars. It calls for a militant faith in democracy and human freedom
that surpasses in its power the faith of any totalitarian system. It calls upon us to
eschew alike the moods of panic and complacency and to live on a higher plane
of understanding and conscience than ever before in our history. All of this
means that the present age calls for a great education, for an education liberally
and nobly conceived, for an education directed toward the accomplishment of
the heavy tasks before us, for an education that expresses boldly and
imaginatively the full promise and the full strength of America in her historical
and world setting.

Holding fast to that which is good in our heritage, we must re-examine our
values, our opinions, our points of view, our actions. The new American way of
life must rest upon a new synthesis of the values that are inherent in the
Hebraic-Christian ethic, the humanistic spirit, the scientific method, the rule of
law, and the democratic faith. These are unsettling, swirling times. The air is
filled with strange cries, and stranger doctrines confront us, preached by men
with unfamiliar names, preached with a passion that is startling, preached with
a tenacity that is menacing. It is a dislocating, profoundly disturbing time in our
national life. We are reeling out of it, trying to regain our poise, trying to
recover those temperate and moderate processes which spell security and
happiness. It is not a time for repining, but it is a time for very sober
reexamination of our processes, of our resources, moral as well as physical, and
a very careful examination and consideration of what our true objectives are. It
is very hard to block out a course unless you have some conception of what
your destination is, and it is very difficult for us to exercise good judgment as to
men and measures unless we have some normal standard of what we consider
good. What is our objective? What are we trying to do in all this turmoil and all
this pressure of conflicting forces? Why, we are trying to get back to the
Constitution, to our institutions that have spelled security to the decades and
have been the source from which we have derived our happiness and well
being. THE CONSTITUTION IS OUR CHART; let us love and venerate the
Constitution by a renewed vision of study and examination of its blessed
provisions.

Tyranny is a perennial danger for mankind, recurring again and again


throughout history, and it has been a subject of discourse for many great
thinkers from the ancient Greeks to the present. The traditional conception of
tyranny is twofold; it is either 1) the usurpation of rightful power (typically the
usurpation of a republic), or 2) government against the “laws” (defined
variously as customary law, divine law, or natural law), or both.

Claim # 4. America is a democracy, but it is also a republic. It is a democracy in


its spirit and the power of its people, but in the mode of exercise of the power of
the people, it is a republic. It has been well said that republicanism in
government "refers rather to the form of government", and that democracy
refers to the "spirit of government." In government as with the people, the spirit
is the real important thing. In a democracy the people govern. "A government of
the people, by the people, and for the people" as Lincoln expressed it, is a
democracy. In a democracy, no man is the master of another man without his
consent. In a democracy there are no slaves. In a democracy each and all have
equal rights. Every one in a democracy has an equal opportunity with every
other person.

So far as life and liberty are concerned, in our rights under the law, in our
protection under the law, we are all equal. In a democracy the people make the
laws, and the people enforce the laws.

We often hear America referred to as a "representative democracy". If America


were merely a democracy there would be no fixed method for expressing the
wishes or the power of the people. In a pure democracy, people having full
power would naturally assemble from time to time to decide by the vote of all
those present, what would be done for the public good.

"No matter how widely democracy may be extended, if it is not accompanied by


a certain equality of opportunity among the members of the political society, it
is not democracy." Cyclopaedia of American Government, I, 561

"Democracy is that form of government in which the people rule. The basis of
democracy is equality, as that of the aristocracy is privilege." Bouvier's Law
Dictionary, I, 540.

"The beginnings of democracy were best observed in the townships of New


England, where the Puritans from England settled and organized towns which
were centers of democracy." Peter Roberts, Civics for Coming Americans.
Association Press, 1917

"The basis of our political system is the right of the people to make or alter their
constitution of government." George Washington

"I believe that the American people accept, as one just definition of democracy,
Napoleon's phrase, "Every career is open to talent." Charles William Eliot,
Educational Reform: Essays and Addresses. Century Co., 1898

"A Republic may be denned as a state in which the sovereign power rests in the
people as a whole but is exercised by representatives chosen by a popular vote."
Cyclopaedia of American Government, III. p. 188

"A Republic, in the modern sense of the term, is a government which derives all
its powers directly, or indirectly, from the great body of the people, i. e. the
majority—and is administered by persons holding their offices for a limited
period." Ibid

Claim # 5. The source of all sovereignty in a Constitutional Republic like the 50


States, united by and under the Constitution for the United States of America, is
the People themselves.

The States, and the Federal Government acting inside those States, are both
bound by the terms of a contract known as the U.S. Constitution. That
Constitution is a contract of delegated powers which ultimately originate in the
sovereignty of the Creator, who endowed creation with sovereignty in that
Creator's image and likeness. Nothing stands between us and the Creator.

Claim # 6. The ultimate authority resides in the people alone. Federalist 46

Claim # 7. The Federal and State Governments are in fact but different agents
and trustees of the people. Federalist 46
Claim # 8. There are real limits to federal power.

Claim # 9. The powers delegated by the Constitution to the federal government


are few and defined. Federalist 45

Claim # 10. The jurisdiction of the federal government is limited to certain


enumerated objects which concern all the members of the republic. Federalist
14

Claim # 11. In the United States, sovereignty resides in the people who act
through the organs established by the Constitution. CHISHOLM v. STATE OF
GA., 2 U.S. (2 Dall.) 419 (1793); PERRY v. UNITED STATES, 294 U.S. 330
(1935)

Claim # 12. At the revolution, the sovereignty devolved on the people; and they
are truly the sovereigns of the country, but they are sovereigns without subjects
and have none to govern but themselves; the citizens of America are equal as
fellow citizens, and as joint tenants in the sovereignty. From the differences
existing between feudal sovereignties and governments founded on compacts, it
necessarily follows that their respective prerogatives must differ. Sovereignty is
the right to govern; a nation or state-sovereign is the person or persons in
whom that resides. In Europe the sovereignty is generally ascribed to the
prince; here it rests with the people; there, the sovereign actually administers
the government; here, never in a single instance; our governors are the agents
of the people, and at most stand in the same relation to their sovereigns, in
which regents in Europe stand to their sovereigns. CHISHOLM v. STATE OF
GA., 2 U.S. (2 Dall.) 419 (1793)

Claim # 13. The Government of the Union 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. MCCULLOCH V. MARYLAND, 17 U. S. 316 (1819)

Claim # 14. Political power is of two kinds, one principal and superior, the other
derived and inferior. The principal supreme power is possessed by the people at
large, the derived and inferior power by the servants which they employ.
Instructions to the Delegates from Mecklenburg, North Carolina, to the
Provincial Congress at Halifax. 1 Nov. 1776, Colonial Records 10:870a—b. The
Colonial Records of North Carolina. Edited by William L. Saunders. 10 vols.
Raleigh: Josephus Daniels, 1886--90

Claim # 15. In common usage, the term 'person' does not include the sovereign,
and statutes employing the word are ordinarily construed to exclude it. UNITED
STATES V. COOPER CORP., 312 U. S. 600 (1941); UNITED STATES V. UNITED
MINE WORKERS, 330 U. S. 258 (1947); WILSON V. OMAHA INDIAN TRIBE,
442 U. S. 653 (1979); WILL V. MICHIGAN DEPT. OF STATE POLICE, 491 U. S.
58 (1989); PRIMATE PROTECTION LEAGUE V. TULANE EDUC. FUND, 500 U.
S. 72 (1991)

Claim # 16. The Federal Constitution provides that 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 IV § 4

Claim # 17. A Republic, a system of government in which the people hold


sovereign power and elect representatives who exercise that power, contrasts
on the one hand with a pure democracy, in which the people or community as
an organized whole wield the sovereign power of government, and on the other
with the rule of one person (such as a king, emperor, czar, or sultan). Black's
Law Dictionary, Seventh Edition, 1999

Claim # 18. By a republican form of government is understood a government by


representatives chosen by the people; and it contrasts on the one side with a
democracy, in which the people or community as an organized whole wield the
sovereign powers of government, and, on the other side, with the rule of one
man as King, Emperor, Czar, or Sultan, or with that of one class of men, as an
aristocracy. In strictness, a republican government is by no means inconsistent
with monarchical forms, for a King may be merely an hereditary or elective
executive while the powers of legislation are left exclusively to a representative
body freely chosen by the people. It is to be observed, however, that it is a
republican form of government that is to be guaranteed; and in the light of the
undoubted fact that by the Revolution it was expected and intended to throw off
monarchical and aristocratic forms, there can be no question but that by a
republican form of government was intended a government in which not only
would the people's representatives make the laws, and their agents administer
them, but the people would also, directly or indirectly, choose the executive.
But it would by no means follow that the whole body of people, or even the
whole body of adult and competent persons, would be admitted to political
privileges; and in any republican State the law must determine the qualifications
for admission to the elective franchise. Judge Cooley, Principles of
Constitutional Law

Claim # 19. All men are by nature equally free and independent, and have
certain inherent rights, of which, when they enter into a state of society, they
cannot, by any compact, deprive or divest their posterity; namely, the enjoyment
of life and liberty, with the means of acquiring and possessing property, and
pursuing and obtaining happiness and safety. THE VIRGINIA DECLARATION
OF RIGHTS, June 12, 1776. From Philip B. Kurland and Ralph Lerner, ed., The
Founders’ Constitution (Chicago: University of Chicago Press, 1987), 1:6-7
Claim # 20. All power is vested in, and consequently derived from, the People;
that magistrates are their trustees and servants, and at all times amenable to
them. THE VIRGINIA DECLARATION OF RIGHTS, June 12, 1776

Claim # 21. Government is, or ought to be, instituted for the common benefit,
protection, and security of the people, nation, or community;—of all the various
modes and forms of Government that is best, which is capable of producing the
greatest degree of happiness and safety, and is most effectually secured against
the danger of mal-administration;—and that, whenever any Government shall be
found inadequate or contrary to these purposes, a majority of the community
hath an indubitable, unalienable, and indefeasible right, to reform, alter, or
abolish it, in such manner as shall be judged most conducive to the publick
weal. THE VIRGINIA DECLARATION OF RIGHTS, June 12, 1776

Claim # 22. The fundamental premise upon which this nation declared its
independence in 1776 was the immutable, self-evident truth that “all men are
created equal.”

Claim # 23. All men are created equal, that they are endowed by their Creator
with certain unalienable Rights, that among these are Life, Liberty, and the
pursuit of Happiness. THE DECLARATION OF INDEPENDENCE para. 2 (U.S.
1776)

Claim # 24. The Declaration of Independence was not a mere temporary


expedient, but is an enunciation of fundamental truths intended for all time.

Claim # 25. Historically and textually, the Declaration and the Constitution are
tied together. They are derived from the same theory of government which is
based upon the laws of nature and of nature's God. Without obedience to the
principles espoused in the Declaration of independence, there can be no
systematic adherence to either the execution of the office of President or the
preservation of the Constitution.

Sir William Blackstone, the famous English jurist, following in the steps of Sir
Edward Coke, declared with precision what the law of nature entailed. He
wrote: Man, considered as a creature, must necessarily be subject to the laws of
his creator, . . . This will of his maker is called the law of nature. For as God, . . .
When he created man, and endued him with freewill to conduct himself in all
parts of life, he laid down certain immutable laws of human nature, whereby
that freewill is in some degree regulated and restrained, and gave him also the
faculty of reason to discover the purport of those laws. 1 W. Blackstone,
Commentaries 39-40. Blackstone recognized that the law of nature is the will of
God. Men may ascertain the law by their reason, though not as clearly as
discovering it by revelation. Blackstone concluded with this proposition: Upon
these two foundations, the law of nature and the law of revelation, depend all
human laws; that is to say, no human laws should be suffered to contradict
these. Id. at 42. Blackstone acknowledged that the law of nature is directly
related to the operation of civil governments. Adherence to the laws of nature
and of nature's God is, in essence, government under the rule of law. It is
opposed to the rule of lawless men, be they religious or non-religious. In the
American experience, reliance upon the laws of nature and of nature's God was
unequivocably asserted on July 4, 1776, in "A Declaration by the
Representatives of the United States of America," or more simply, the
Declaration of Independence.

Claim # 26. The Declaration of Independence and the Constitution of the United
States are parts of one consistent whole, founded upon one and the same theory
of government, — that the people are the only legitimate source of power, and
that all just powers of government are derived from the consent of the
governed. J.Q. Adams, The Jubilee of the Constitution, A Discourse Delivered at
the Request of the New York Historical Society, on Tuesday, the 30th of April,
1839

In 1839, former President John Quincy Adams discussed with precision the tie
between the Declaration and the Constitution. He noted that, by the Declaration,
the colonists were proclaimed to be one people, renouncing all allegiance to the
British crown; all copatriotism with the British nation; all claims to chartered
rights as Englishmen. Thenceforth their charter was the Declaration of
Independence. Their rights, the natural rights of mankind; their government,
such as should be instituted by themselves, under the solemn mutual pledge of
perpetual union, founded on the self-evident truths proclaimed in the
Declaration. J.Q. Adams, The Jubilee of the Constitution, A Discourse Delivered
at the Request of the New York Historical Society, on Tuesday, the 30th of April,
1839, reprinted in 6 Journal of Christian Jurisprudence 4 (1986). He concluded
that "the Declaration of Independence and the Constitution of the United States,
are parts of one consistent whole, founded upon one and the same theory of
government." Id. at 19

Claim # 27. The Declaration recognizes that the laws of nature and of nature's
God provided the necessary legal basis for the people to establish a "separate
and equal station" and dissolve the political bands with England. The
Declaration also asserts that "all men are created equal...." The principle of
equality was thus applied to men as well as nations. The law of equality is
rooted in the fact that man is created in God's image and is also reflected in
different clauses of the Constitution.

The principle of equality is perhaps most importantly articulated in article l,


section 2 which provides for popular election of representatives to the House of
Representatives. The fourteenth amendment subsequently expanded that
provision to require that representatives "be apportioned among the several
States according to their respective numbers...." This change, accompanied by
the fifteenth, seventeenth, nineteenth and twenty-sixth amendments, provides
all adult citizens with the equal opportunity to participate in selecting
Representatives and Senators. The fourteenth amendment also provides that no
"State shall ... Deny to any person within its jurisdiction the equal protection of
the laws." With respect to equality between the states in the Senate, article V
asserts that "no State, without its Consent, shall be deprived of its equal
Suffrage in the Senate."

The Declaration also notes that "Governments are instituted among Men,
deriving their just Powers from the Consent of the Governed." President George
Washington declared: "The basis of our political systems is the right of the
people to make and to alter their constitutions of government." G. Washington,
Farewell Address (Sept. 17, 1796). Abraham Lincoln called this "the leading
principle-the sheet anchor of American republicanism." 2 The Collected Works
of Abraham Lincoln 266 (R. Basler ed. 1953). This principle requires that civil
government exercise only those powers which are specifically granted. Such is
the case with the national government. If a power is not granted, the national
government does not possess it and therefore may not act as though it does
possess it. The Founders were cognizant of different types of political power
and the Declaration of independence reflects this understanding. The
Declaration refers to God in a judicial capacity when it appeals to the "Supreme
Judge of the world." It also makes legislative references to God as the lawgiver
by the phrase "the laws of nature and of nature's God." And lastly, it appeals to
Him in an executive capacity by declaring "firm reliance on the protection of
Divine Providence." Isaiah 33:22 also reflects this division. The government
which was eventually created by the Constitution reflected these divisions.
Article I focuses on legislative power, article II on executive, and article III on
judicial. The laws of nature and of nature's God enabled the Framers to
establish a government, defining and separating these types of legitimate
constitutional powers.

The experience of the Framers with the King and the Parliament of Great
Britain, and their familiarity with the writings of Montesquieu, confirmed that
the separation of powers was essential to the security of individual rights and
liberties. Alexander Hamilton reflected the particulars of this theme in
Federalist 78. He declared: The executive not only dispenses the honors, but
holds the sword of the community. The legislature not only commands the
purse but prescribes the rules by which the duties and rights of every citizen are
to be regulated. The judiciary, on the contrary, has no influence over either the
sword or the purse; no direction either of the strength or of the wealth of the
society, and can take no active resolution whatever. It may truly be said to have
neither FORCE nor WILL, but merely judgment; and must ultimately depend
upon the aid of the executive arm even for the efficacy of its judgments. The
Federalist No. 78, at 465 (A. Hamilton). Both the national and state governments
are republican in nature. Republican means that the people's representatives
govern according to a written delegation of authority. This is in contrast to a
democratic system in which the representatives govern according to the popular
consent of the majority, whether that consent is written or unwritten. If the
people desire any branch of the national government, including the President,
to engage in an activity which would require the exercise of a power not
enumerated or extended (or with respect to Congress necessary and proper to
carry such a power into execution), then the people need to amend the
Constitution. This will ensure that there is no mistake as to the nature, extent
and type of power given, or the proper scope of its exercise, including the
branch to which it has been entrusted.

Lastly, the Declaration of independence asserts that all men are "endowed by
their Creator with certain unalienable Rights, that among these are Life, Liberty
and the Pursuit of Happiness...." Unalienable means undeniable or inherent.
According to the laws of nature and of nature's God, governments are
legitimately instituted in order to secure the unalienable rights of the people.
This is not a difficult proposition to master. God endows men with unalienable
rights, irrespective of a man's religious belief or lack thereof. All men, male and
female, have certain unalienable rights simply because they are human beings
created in God's image. The Constitution does not expressly refer to unalienable
rights. This is so because the Constitution does not primarily enumerate rights.
Its principal purpose was to create a national government, granting it only
limited and enumerated power. Men such as George Mason and Thomas
Jefferson, however, argued extensively for a Bill of Rights to unquestionably
prohibit the national government from interfering with certain rights of
Americans. Some of these declared rights are unalienable, while others are
merely civil, or alienable. For those rights not listed, the ninth amendment
makes clear that "The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people." The
Declaration acknowledges that the Creator is the source of the unalienable
rights which the people necessarily retain. Civil government, including the
President, must refrain from any interference with the exercise of those God-
given rights. The national government, however, may regulate those rights
which it creates, or which are not God-given as long as the latter are
acknowledged in the Constitution. Journal of Christian Jurisprudence, Vol. 7
(1987)

Claim # 28. The Declaration of Independence, stating that "[w]e 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," is the finest example of natural rights
theory applied to public policy. Every individual has "unalienable Rights" that
exist not because of government but spring wholly from the human condition
itself. It is our humanity that is the fountainhead of these natural rights. The
Declaration identifies three such rights—Life, Liberty, and the pursuit of
Happiness. The Declaration suggests only that those three rights are "among"
the "unalienable Rights" we all share, not that they are exclusive. As the
founders of this country moved from the Declaration of Independence to other
formal organizing documents, numerous natural rights were carried forward
and enshrined in the Bill of Rights.

At a speech given on June 8, 1789, James Madison proposed certain


amendments to the Constitution that would later become the Bill of Rights.
House of Representatives, Debates, June 8, 1789, reprinted in David E. Young,
The Origin of the Second Amendment: a Documentary History of the Bill of
Rights 1787-1792 at 651-663, 654 (2nd Ed. 2001). His speech and notes from
that speech reflect that the proposed amendments preserved and protected
certain natural rights and retained the same for individuals. Among those
natural rights was a right to keep and bear arms that is substantively similar to
the present Second Amendment.

Claim # 29. The law is perfectly well settled that the first ten amendments to the
Constitution, commonly known as the "Bill of Rights," were not intended to lay
down any novel principles of government, but simply to embody certain
guaranties and immunities which we had inherited from our English ancestors,
and which had, from time immemorial, been subject to certain well recognized
exceptions arising from the necessities of the case. In incorporating these
principles into the fundamental law, there was no intention of disregarding the
exceptions, which continued to be recognized as if they had been formally
expressed. Thus, the freedom of speech and of the press (Art. I) does not permit
the publication of libels, blasphemous or indecent articles, or other publications
injurious to public morals or private reputation; the right of the people to keep
and bear arms (Art. II) is not infringed by laws prohibiting the carrying of
concealed weapons; the provision that no person shall be twice put in jeopardy
(Art. V) does not prevent a second trial if upon the first trial the jury failed to
agree or if the verdict was set aside upon the defendant's motion. ROBERTSON
V. BALDWIN, 165 U. S. 275 (1897); DENNIS V. UNITED STATES, 341 U. S. 494
(1951)

The Court pointed out that the Second Amendment is among those individual
rights that Americans "inherited from our English ancestors" and that the Bill of
Rights is not a collection of "novel principles of government" but something
personal and individual. In United States v. Verdugo-Urquidez, 494 U.S. 259
(1990) (considering the Fourth Amendment), the Court addressed the use of the
term “people” in the Constitution and Bill of Rights: “[T]he people” seems to
have been a term of art employed in select parts of the Constitution. The
Preamble declares that the Constitution is ordained and established by “the
People of the United States.” The Second Amendment protects “the right of the
people to keep and bear Arms,” and the Ninth and Tenth Amendments provide
that certain rights and powers are retained by and reserved to “the people.” See
also U.S. CONST., amdt. 1; Art. I, § 2, cl. 1. While this textual exegesis is by no
means conclusive, it suggests that “the people” protected by the Fourth
Amendment, and by the First and Second Amendments, and to whom rights and
powers are reserved in the Ninth and Tenth Amendments, refers to a class of
persons who are part of a national community or who have otherwise developed
sufficient connection with this country to be considered part of that community.
494 U.S. 259, 265. “The people” has the same consistent meaning through the
Constitution and the Bill of Rights and the Second Amendment is no exception.
Id. A textual analysis of the Bill of Rights as a whole compels only one
conclusion: “the people” in the Second Amendment refers to individual
Americans and not state governments or some other collective body. The
Second Amendment does not lay down the right of the people to keep and bear
arms as a matter of positive law but reflects that the right is more fundamental.
The Second Amendment functions as a means to preserve the fundamental right
to keep and bear arms.

Claim # 30. The Second Amendment must be interpreted in conjunction with


the historical use of arms by individuals for self-defense, hunting, and other
practical purposes.

Claim # 31. The right of self-defense and self-preservation includes the right to
defend oneself against attacks by lawless individuals, or, if absolutely necessary,
to resist and throw off a tyrannical government. Parker v. District of Columbia,
478 F.3d 370 (D.C. Cir. 2007)

In the time of the Founding Fathers, arms were used for self-defense and
hunting. United States v. Emerson, 270 F. 3d 203, 251-55 (5th Cir. 2001). As the
court of appeals below pointed out, the right of self-defense and self-
preservation includes "the right to defend oneself against attacks by lawless
individuals, or, if absolutely necessary, to resist and throw off a tyrannical
government." Parker v. District of Columbia, 478 F.3d 370, 383 (D.C. Cir. 2007).
It would be incongruous for the Founding Fathers to have lived in a time when
individuals regularly used arms for those purposes but not to have envisioned
an individual, private right to keep and bear arms. It is the individual right to
keep and bear arms that allows individuals to use arms for lawful practical
purposes and to protect themselves. That right, understood from the beginning
of this Republic to be an individual right, must be respected and given the full
protection it deserves.

Claim # 32. The right of self defence is the first law of nature: in most
governments it has been the study of rulers to confine this right within the
narrowest limits possible. Wherever standing armies are kept up, and the right
of the people to keep and bear arms is, under any colour or pretext whatsoever,
prohibited, liberty, if not already annihilated, is on the brink of destruction.
Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the
Constitution and Laws of the Federal Government of the United States and of
the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South
Hackensack, N.J.: Rothman Reprints, 1969
This right of self-defence is founded upon the law of nature. Parrish v.
Commonwealth, 81 Va. 1 (1884)

Claim # 33. The Declaration of Independence is the grandest, the bravest, and
the profoundest political document that was ever signed by the representatives
of a people. It is the embodiment of physical and moral courage, and of political
wisdom. It was a declaration of war against the most powerful nation then on
the globe; a declaration of war by thirteen weak, unorganized colonies, a
declaration of war by a few people, without military stores, without wealth,
without strength, against the most powerful kingdom on the earth; a declaration
of war made when the British navy—at that day the mistress of every sea—was
hovering along the coast of America, looking after defenseless towns and
villages to ravish and destroy. It was made when thousands of English soldiers
were upon our soil, and when the principle cities of America were in the
substantial possession of the enemy. And so, all things considered, it was the
bravest political document ever signed by man. And if it was physically brave,
the moral courage of the document is almost infinitely beyond the physical.
They had the courage not only, but they had the almost infinite wisdom to
declare that all men are created equal. With one blow, with one stroke of the
pen, they struck down all the cruel, heartless barriers that aristocracy, that
priestcraft, that kingcraft had raised between man and man. They struck down
with one immortal blow that infamous spirit of caste that makes a God almost a
beast, and a beast almost a god. With one word, with one blow they wiped away
and utterly destroyed all that had been done by centuries of war—centuries of
hypocrisy—centuries of injustice. What more did they do? They then declared
that each man has a right to live. And what does that mean? It means that he
has the right to make his living. It means that he has the right to breathe the air,
to work the land, that he stands the equal of every other human being beneath
the shining stars, entitled to the product of his labor—the labor of his hand and
of his brain. What more? That every man has right to pursue his own happiness
in his own way. Grander words than these have never been spoken by man. And
what more did these men say? They laid down the doctrine that governments
were instituted among men for the purpose of preserving the rights of the
people. The old idea was that people existed solely for the benefit of the state—
that is to say, for kings and nobles. The old idea was that the people were the
wards of the kind and priest—that their bodies belong to one and their souls to
the other. And what more? That the people are the source of political power.
That was not only a revelation, but it was a revolution. It changed the ideas of
people with regard to the source of political power. For the first time it made
human beings men. What was the old idea? The old idea was that no political
power came from, nor in any manner belonged to the people. The old idea was
that the political power came from the clouds; that the political power came in
some miraculous way from heaven; that it came down to kings, and queens and
robbers. That was the old idea. The nobles lived upon the labor of the people;
the people had no rights; the nobles stole what they had and divided with the
kings, and the kings pretended to divide what they stole with God Almighty. The
source, then, of political power was from above. The people were responsible to
the nobles, the nobles to the king, and the people had no political right
whatever, no more than the wild beasts of the forest. The kings were
responsible to God; not the people. They were responsible to the clouds, not to
the toiling millions they robbed and plundered. And our forefathers, in this
declaration of independence, reversed this thing, and said; No, the people, they
are the source of political power, and their rulers—these presidents, these
kings—are but the agents and servants of the great, sublime people. For the
first time, really, in the history of the world, the kind was made to get off the
throne, and the people were royally seated thereon. The people became the
sovereigns, and the old sovereigns became the servants and the agents of the
people. Robert G. Ingersoll, Centennial Oration (July 4, 1876)

Claim # 34. The Declaration of Independence sets forth liberty as the clear and
legitimate goal of the voyage of America’s ship of state. The Declaration is a
statement on the first principles of liberty and the rights of man. It first declared
the Colonies the “United States,” “one people” dependent upon their appeal to
the “Law of Nature and Nature’s God” for jurisdictional authority
(“Declaration”). The Declaration passed a judgment on the nature of
governments strictly from the perspective of liberty and established revolution
as the duty of “free and equal men” when any government refuses to recognize
the unalienable rights with which men are endowed by God; this gave to the
Colonists the justification for revolution (“Declaration”).

Claim # 35. In declaring the duty of revolution for the cause of liberty, the
Declaration simultaneously maintained order, checking passions and parrying
the tendencies of revolutions to produce chaos. While revolutions
characteristically throw off the boundaries of law and morality, the American
revolutionaries were restrained by rule of law because of their respect for
individuals, which grew out of their commitment to the Christian faith. The
Founders frequently recurred to general Christian principles.

Historian Friedrich Gentz analyzed the crucial difference between the anatomies
of the American Revolution and the French Revolution by looking at their goals:
while the French Revolution sought to institute “theoretic dogma” to create a
utopian society, the American Revolution was a legitimate “defensive
revolution,” fought with a “sound understanding of the natural rights”.

Claim # 36. The goal of the revolution was to institute a new government while
maintaining the established civil social order, permanent in character, with an
enduring constitution. The restraint of general principles led to the
acknowledgement in the Declaration that governments should not be altered or
abolished for light or transient causes. After establishing their unity and
appealing to the Supreme Ruler of the Universe, the Founding Fathers
submitted facts to a candid world, explaining why their government had to be
altered. The Declaration brought suit against the British Crown and its exercise
of illegitimate power over the Colonies, a power that was destructive to life,
liberty, and happiness. The success of the War for Independence was more than
a demonstration in superiority of arms manned by courageous men: it was a
victory of the truths about unalienable rights.

Learning from the weaknesses of the Articles of Confederation, a document not


consistent with the principles of unity articulated in the Declaration, Hamilton in
Federalist No. 9 argued that the Constitution, the great American ship, would
form a strong union: “A firm Union will be of the utmost moment to the peace
and liberty of the States as a barrier against domestic faction and insurrection.
It is impossible to read the history of the petty republics of Greece and Italy
without feeling sensations of horror and disgust at the distractions with which
they were continually agitated, and at the rapid succession of revolutions by
which they were kept in a state of perpetual vibration between the extremes of
tyranny and anarchy.” The Founding Fathers recognized the need for the order
traditionally provided by the powers vested in a monarch. The laws of nations
historically have vested power in only one of two entities: the government or the
people. The power of government lies in its ability to provide order: to protect
society against internal subversions rooted in licentiousness (i.e., liberty
unrestrained by law and morality) and external threats toward national
sovereignty. The power of the people is liberty: the ability to govern themselves
consistent with their convictions of conscience unless those convictions infringe
on another’s legitimate rights.

Claim # 37. The British constitution was founded in no higher original than that
which gives force and obligation to the ordinary laws and statutes of the realm.
From the perspective of the American founders, no such thing as a
constitution, properly so called, is known in Great Britain. It was a “creature” of
the government. It did not recognize “the supreme power of the people.” James
Wilson, The Works of James Wilson, ed. James De Witt Andrews, vol. 2
(Chicago: Callaghan, 1896), pp. 38 3–386

Claim # 38. The idea of a constitution, limiting and superintending the


operations of legislative authority, seems not to have been accurately
understood in Britain. There are, at least, no traces of practice conformable to
such a principle. The British Constitution is just what the British Parliament
pleases. To control the power and conduct of the legislature, by an overruling
constitution, was an improvement in the science and practice of government
reserved to the American States. James Wilson (In the Pa. Ratifying Convention,
1788)

Claim # 39. The order of things in Britain is exactly the reverse of the order of
things in the United States. Here, the people are masters of the government;
there, the government is master of the people. James Wilson, The Works of
James Wilson, Belknap Press of Harvard University Press, 1967
Claim # 40. In England, the system of public jurisprudence is made up of acts of
parliament, of decisions of courts of law, and of immemorial usages;
consequently, these are the principles of which the English constitution itself
consists, the sources from which all our knowledge of its nature and limitations
is to be deduced, and the authorities to which all appeal ought to be made, and
by which every constitutional doubt and question can alone be decided. An act
of parliament in England can never be unconstitutional, in the strict and proper
acceptation of the term. William Paley, The Principles of Moral and Political
Philosophy [1785]

Claim # 41. In England, Parliament is supreme; its authority runs without limits,
and rises above control. But in America the case is very different.

'The power and jurisdiction of Parliament, says Sir Edward Coke, is so


transcendant and absolute, that it cannot be confined, either for causes or
persons, within any bounds. And of this high court, he adds, it may be truly
said, Si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima;
si jurisdictionem, est capacissima. It has sovereign and uncontroulable authority
in the making, confirming, enlarging, restraining, abrogating, repealing,
reviving, and expounding of laws, concerning matters of all possible
denominations, ecclesiastical or temporal, civil, military, maritime, or criminal:
This being the place where that absolute despotic power, which must in all
governments reside somewhere, is entrusted by the constitution of these
kingdoms. All mischiefs and grievances, operations and remedies, that
transcend the ordinary course of the laws, are within the reach of this
extraordinary tribunal. It can regulate or new model the succession to the
crown; as was done in the reign of Henry VIII. and William III. It can alter the
established religion of the land; as was done in a variety of instances, in the
reigns of king Henry VIII. and his three children. It can change and create
afresh even the constitution of the kingdom and of Parliaments themselves; as
was done by the act of union, and the several statutes for triennial and
septennial elections. It can, in short, do every thing that is not naturally
impossible; and therefore some have not scrupled to call its power, by a figure
rather too bold, the omnipotence of Parliament. True it is, that what the
Parliament doth, no authority upon earth can undo.' (1 Bl. Com. 160.)

Claim # 42. With Parliament the sovereign power is despotic; it runs without
limit and rises above all control.

Claim # 43. It is difficult to say what the constitution of England is; because, not
being reduced to written certainty and precision, it lies entirely at the mercy of
the Parliament: It bends to every governmental exigency; it varies and is blown
about by every breeze of legislative humour or political caprice. Some of the
judges in England have had the boldness to assert, that an act of Parliament,
made against natural equity, is void; but this opinion contravenes the general
position, that the validity of an act of Parliament cannot be drawn into question
by the judicial department: It cannot be disputed, and must be obeyed. The
power of Parliament is absolute and transcendant; it is omnipotent in the scale
of political existence. Besides, in England there is no written constitution, no
fundamental law, nothing visible, nothing real, nothing certain, by which a
statute can be tested. In America the case is widely different: Every State in the
Union has its constitution reduced to written exactitude and precision. What is a
Constitution? It is the form of government, delineated by the mighty hand of the
people, in which certain first principles of fundamental laws are established.
The Constitution is certain and fixed; it contains the permanent will of the
people, and is the supreme law of the land; it is paramount to the power of the
Legislature, and can be revoked or altered only by the authority that made it.
VANHORNE'S LESSEE v. DORRANCE, 2 U.S. 304 (1795)

From the very beginning, American judges have been prepared to enforce
constitutional rights that cannot fairly be said to derive from any enumerated
textual guarantee. For very early examples, see Fletcher v. Peck, 10 U.S. (6
Cranch) 87, 139 (1810) (opinion of Marshall, C.J.) (establishing that there are
limits to state powers that do not specifically appear in the Constitution); the
famous natural-law passages of Justice Chase’s opinion in Calder v. Bull, 3 U.S.
(3 Dall.) 386, 387–88 (1798) (opinion of Chase, J.) (holding a Connecticut law
not invalid under the ex post facto language of the Constitution); and
Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 311–12 (C.C.D. Pa. 1795)
(opinion of Patterson, J.) (finding the Pennsylvania Confirming Act
unconstitutional as it was beyond the power of the legislature). See also 2
Ronald D. Rotunda & John E. Novak, Treatise On Constitutional Law: Substance
And Procedure § 15.7, at 626 (3d ed. 1999) (“Despite claims to the contrary,
there has never been a period of time wherein the Court did not actively enforce
values which a majority of the Justices felt were essential in our society even
though they had no specific textual basis in the Constitution.”).

The Framers themselves, we are told, understood constitutional rights in


unwritten, natural-law terms, drawing on the English lex non scripta and
“ancient constitution” traditions passed down to them by Blackstone and others.
See, e.g., Thomas Grey, Origins of the Unwritten Constitution: Fundamental
Law in American Revolutionary Thought, 30 STAN. L. R EV. 843, 893 (1978)
(analyzing the development of unwritten fundamental law in revolutionary
America); Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. CHI. L.
REV. 1127, 1164–65 (1987) (“All of these men clearly thought that certain rights
existed whether or not they were declared.”). On the English tradition of
unwritten law, which married the idea of an “ancient” constitution with that of
immemorial, customary common law, both understood as lex non scripta
(unwritten law), see J.G.A. Pocock, The Ancient Constitution And The Feudal
Law: A Study Of English Historical Thought In The Seventeenth Century 302
(1957). These ideas were in play not only in England, but throughout sixteenth-
and seventeenth-century European legal thought, often deployed to justify the
concept of fundamental rights unalterable even by the king himself. See, e.g.,
Michael W. McConnell, Tradition and Constitutionalism Before the Constitution,
1998 U. ILL. L. REV. 173, 185 (explaining how European scholars argued that
custom was the most fundamental of laws). Blackstone referred to the common
law as lex non scripta. 1 William Blackstone, Commentaries 17, 63; see also
Matthew Hale, The History Of The Common Law Of England 22–23 (3d ed.
1739). Blackstone also identified the common law with natural-law principles,
and made explicit reference to the supreme authority of natural law. 1
Blackstone, supra, at 39–44. But Blackstone was notoriously equivocal on the
latter point (he also asserted the doctrine of parliamentary sovereignty, e.g., id.
at 91), and it is possible of course to believe in a natural law of supreme moral
authority while also being a positivist with respect to legal authority. See
Thomas B. McAffee, Prolegomena to a Meaningful Debate of the “Unwritten
Constitution” Thesis, 61 U. CIN. L. REV. 107, 116–18 (1992) (examining the
significant tensions that exist within the works of scholarly proponents of the
unwritten constitution thesis).

Further, since at least 1890, when Christopher Tiedeman published his


influential book on the subject, Americans have formulated their own distinctive
idea of an “unwritten Constitution,” neither natural nor immemorial, in which
unenumerated constitutional rights are supposed to express the fundamental
values or ethos of the living citizenry. See Christopher G. Tiedeman, The
Unwritten Constitution Of The United States: A Philosophical Inquiry Into The
Fundamentals Of American Constitutional Law 150–51, 154 (1890) (noting that
“since under a popular government governmental authority rests upon the voice
of the people,” the “judge . . . who would interpret the law rightly . . . need not
concern himself so much with the intentions of the framers of the Constitution,”
but must “follow, and give effect to, the present intentions and meaning of the
people”). For modern accounts, see Robert Post, Constitutional Domains:
Democracy, Community, Management 35–44 (1995) (linking “‘extra-
documentary’” constitutional law and Roe v. Wade with the idea of a judicial
effort to speak for a contemporary “national ethos”); Paul Brest, The
Misconceived Quest for Original Understanding, 60 B.U. L. REV. 204, 228–29
(1980) (discussing the importance of being able to modify precedent in Anglo-
American common law).

On the other hand, there is an equally strong countervailing tradition opposing


the idea of unwritten law. Long before legal positivism, Bracton wrote that “law
derives from nothing unwritten,” and it always has been possible to view
America’s written Constitution as a renunciation of the lex non scripta tradition.
2 Bracton De Legibus Et Consuetudinibus Angliae [Bracton On The Laws And
Customs Of England ] 19 (George E. Woodbine ed. & Samuel E. Thorne trans.,
1968). Early American judges proudly distinguished our system from England’s
on just this ground. See, e.g., Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.)
304, 308 (C.C.D. Pa. 1795) (“[I]n England there is no written constitution, no
fundamental law, nothing visible, nothing real, nothing certain, by which a
statute can be tested. In America the case is widely different . . . .”).
Occasionally, they expressly denied the legal validity of natural rights. The
famous example is of course also from Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).
See id. at 399 (Iredell, J., concurring) (“If . . . the Legislature . . . shall pass a
law, within the general scope of their constitutional power, the Court cannot
pronounce it to be void, merely because it is, in their judgment, contrary to the
principles of natural justice.”).

Claim # 44. Temporary delusions, prejudices, excitements, and objects have


irresistible influence in mere questions of policy. And the policy of one age may
ill suit the wishes, or the policy of another. The constitution is not to be subject
to such fluctuations. It is to have a fixed, uniform, permanent construction. It
should be, so far at least as human infirmity will allow, not dependent upon the
passions or parties of particular times, but the same yesterday, to-day, and for
ever. Joseph Story, Commentaries on the Constitution of the United States
(Boston: Hillard, Gray, and Co., 1833), § 193

The British Constitution is an unwritten concept derived from a long tradition of


established practices and forms. The difficulty with an unwritten constitution, of
course, is that it is difficult to prevent the government from violating its dictates
or expanding into new areas which were previously cut off from the authority of
government. If the constitution is merely the product of a tradition of
government practices, when the government changes or updates its practices
they become, by definition, constitutional. The definition of what is
constitutional changes as the government takes on new tasks and assumes
greater control over liberty. In The Federalist Papers, James Madison
specifically described “The important distinction so well understood in America
between a constitution established by the people, and unalterable by the
government; and a law established by the government, and alterable by the
government.” This distinction, he argued, “seems to have been little understood
and less observed in any other country.” In Great Britain, particularly, the
Constitution was alterable by the government, which placed the people in
servitude to the government. In contrast to the common law or the British
constitutional system, the written nature of the Constitution should not be
subject to change over time except through explicit and deliberate amendment.
Fixing constitutional principles in a written text against the transient shifts in
the public mood or social condition becomes tantamount to an originalist
jurisprudence. As storms of popular passion sweep across the political
landscape, it is to be expected that rapid and extreme shifts in public attitudes
will guide political action. Such shifts may lead government officials some
distance from the founding principles that would otherwise be revered and
followed. In order to prevent government actions, which may have significant
and lasting consequences, from being taken in pursuit of momentary interests, a
written constitution, properly construed, serves as a reminder and a barrier,
constraining politics within a relatively narrow range of deliberately chosen
rights, powers, and institutions. The demanding and solemn process of
amending the written Constitution—its requirement that government officials
seeking to alter constitutional understandings win supermajority support not
only from national legislators, but also from the states—seeks to temper and
moderate our politics. The American colonists had experience with
constitutional interpretation that was grounded on the presumption of
constitutional change. The American constitutional tradition was a self-
conscious rejection of that practice. The unwritten constitution, exemplified by
the British, necessarily called forth an interpretive strategy combining moral
reasoning, historical analogy, the accumulation of precedent, and appeals to
contemporary practice and judgment, intertwining momentary “policy” with
constitutional principle. The written constitution calls on the faithful interpreter
to identify the principle fixed in that text at a specific moment of constitutional
founding. A jurisprudence of originalism is congruent with and makes sense of
this basic feature of American constitutionalism. Keith E. Whittington, How to
Read the Constitution: Self-Government and the Jurisprudence of Originalism,
First Principle Series, No. 5, The Heritage Foundation, Washington, D.C. (May
1, 2006)

Claim # 45. Without an express Constitution the powers of the Legislature


would undoubtedly have been absolute (as the Parliament in Great Britain is
held to be), and any act passed, not inconsistent with natural justice (for the
curb is avowed by the judges even in England), would have been binding on the
people. James Iredell, Life and Correspondence of James Iredell, ed. Griffith J.
McRee, vol. 2 (New York: D. Appleton and Company, 1858)

Claim # 46. In America, the Constitution is a fundamental law and a law in


writing, and as a consequence, the judicial power, in the exercise of their
authority, must take notice of it. James Iredell, Life and Correspondence of
James Iredell

Claim # 47. In America, the Constitution is not a mere imaginary thing, about
which ten thousand different opinions may be formed, but a written document
to which, therefore, the judges cannot willfully blind themselves. James Iredell,
Life and Correspondence of James Iredell

A decade later, with an express Constitution in effect and Iredell a justice of the
United States Supreme Court, he engaged with his fellow justice, Samuel Chase,
in a celebrated exchange in Calder v. Bull (3 U.S. 386 [1798]) concerning a
jurisprudence of "natural justice." Chase flatly declared that "an ACT of the
Legislature (for I cannot call it a law) contrary to the great first principles of the
social compact, cannot be considered a rightful exercise of legislative
authority." Iredell in reply denied that judges could be guided by so uncertain a
rule. Despite the views of “some speculative jurists,” Iredell argued, the Court
could not pronounce state or federal legislation void “merely because it is, in
their judgment, contrary to the principles of natural justice.” For one thing,
"the ideas of natural justice are regulated by no fixed standard" and would be a
license for judges to set aside any law with which they disagreed. Moreover,
English judges could not disregard legislation on the basis of natural justice,
and Americans had dealt with the problem of oppressive laws by adopting
constitutions “to define with precision the objects of the legislative power, and
to restrain its exercise within marked and settled boundaries.” The power of
appointed judges to annul legislation on grounds of policy was thus not only
undemocratic and contrary to the English legal tradition we had inherited; it
was fundamentally inconsistent with the concept of a written constitution.

Claim # 48. In England, the judiciary, having no written constitution to refer to,
were obliged to receive whatever exposition of it the legislature might think
proper to make. But, with us, the Written Constitution is not an "ideal thing, but
a real existence: it can be produced in a visible form:" its principles can be
ascertained from the living letter, not from obscure reasoning or deductions
only. The government, therefore, and all its branches must be governed by the
constitution. Hence it becomes the first law of the land, and as such must be
resorted to on every occasion, where it becomes necessary to expound what the
law is. In order to activate the courts, constitutional principles must be
produced in visible form so that they can be ascertained from the living letter,
not from obscure reasoning or deduction only. Kamper v. Hawkins, 1 Va. Cases
38, 78 (1793)

Alexander Hamilton in The Federalist Papers relied on similar reasoning in


contending that where meaning is uncertain and subject to continued dispute,
the judiciary cannot reasonably act, for a court’s only claim to authority is the
force of its reason and the clear accuracy of its decision. If the court were “to
have neither FORCE NOR WILL but merely judgment,” the judges must appear
to have no will of their own but must merely make explicit what is already
known. Alexander Hamilton, Federalist No. 78, in The Federalist Papers, ed.
Clinton Rossiter (New York: Mentor, 1961), p. 465. Without the fixed standard
of the text, constitutional law would appear as the assertion of “will” and would
therefore have to be left as a matter for legislatures and elections. Chief Justice
John Marshall emphasized that it was the fixed constitutional text that created
the possibility of judicial review. In sharp contrast to the British case, in which a
statute stands clear against a fuzzy constitutional background, in America all
can easily lay their eyes on the written Constitution, and thus it requires willful
blindness either to circumvent its terms or avoid its obligations. Judges could
not “close their eyes on the constitution, and see only the law” once the
constitution was put in front of them in this way. Marbury v. Madison, at 177

"A constitution," says the celebrated Paine, "is not a thing in name only, but in
fact. It has not an ideal, but a real existence; and wherever it cannot be
produced in a visible form, there is none. A constitution is a thing antecedent to
government, and a government is only the creature of a constitution. It is not
the act of the government, but of the people constituting a government. It is the
body of elements to which you can refer, and quote article by article, and which
contains the principles on which the government shall be established, the
manner in which it shall be organized, the powers it shall have." See Rights of
Man, part I. p. 30. Vattel, in treating of the fundamental laws of a state,
observes, "that a nation may entrust the exercise of the legislative power to the
prince, or to an assembly, or to that assembly and the prince, jointly; who have
then a right of making new, and of abrogating old laws. It is here demanded,
whether if their power extends as far as the fundamental laws, they may change
the constitution of the state? To this he answers, we may decide with certainty,
that the authority of these legislators does not extend so far, and that they ought
to consider the fundamental laws as sacred, if the nation has not in express
terms given them power to change them. For the constitution of the state ought
to be fixed; and since that was first established by the nation, which afterwards
trusted certain persons with the legislative powers, the fundamental laws are
excepted from their commission. In short, these legislators derive their power
from the constitution: how then can they change it, without destroying the
foundation of their authority?" Vattel, p. 31

Claim # 49. Unlike all other Constitutions, the United States Constitution was
founded on the principle to which James Madison subscribed in Federalist 49:
“the people are the only legitimate fountain of power”. The beauty and wonder
of American democracy is the symbiotic relationship between order and liberty
under the Constitution created because of the Founder’s belief in a system of
self-restraint.

As Alexis de Tocqueville wrote, “…religion in America facilitates the use of


freedom” because it restrains unjust actions and for this reason it should be
“regarded as the first of their political institutions.” The Constitution provided
the necessary unity of the individual states. The civil rights of the individual
contained in the Constitution made it possible to have a “firm union” while still
protecting the unalienable rights of man. Moreover, man’s positive law followed
the natural law, an adherence to Blackstone’s teachings: “man’s modern laws
are declaratory of natural laws…the common law is the nearest approach…to
natural law.” The “lyrical statements” of the Declaration may appear to welcome
“personal license and social disorder” because the Founders took the “moral
order they had inherited for granted” (Bork 57). But these philosophical
statements were balanced with the practicalities expressed in the Constitution,
creating the order necessary to maintain liberty. The Founders championed
liberty within the framework of morality, the liberty defined by Lord Acton as,
“not the power of doing what we like, but the right of being able to do what we
ought”. American government successfully avoided the “perpetual vibration
between the extremes of tyranny and anarchy” through the Constitution
because it recognized the nature of men to believe, as John Stuart Mill, that
“liberty consists in doing what one desires”. In recognition of these “vital
principles of liberty” so necessary to sustain government, Hamilton, Jay and
Madison defended the Constitution by analyzing governments that had fallen
because of social and moral disorder. The Federalist Papers explain that the
Declaration is the spirit of the Constitution and the Constitution, while providing
for a strong United States, divides government power and protects individual
civil rights – the unalienable rights of every person. In the debate over the
Constitution, the writers of the Federalist Papers did not abandon the principles
of liberty and order to impose their beliefs on the people, rather they carried
their beliefs to the people in the newspapers, systematically submitting facts to
“let candid men judge,” this time not the Declaration, but the Constitution.

Claim # 50. Without the Constitution there is the great danger from dissensions
between the States themselves and from domestic factions and convulsions,
which will make the “United” States formidable only to each other, precisely the
situation for which some foreign powers hope.

Claim # 51. Just as every ship at sea needs a vigilant crew and strong winds to
keep it in working order, so America’s ship of state, the Constitution, needs a
vigilant and moral citizenry for its maintenance.

The Constitution seems unsinkable, but this assumption of immortality was also
vested in the Titanic. As the citizens of America’s ship of state navigate they
must maintain a vigilant watch; they hold the power and thus carry a great
responsibility to make a choice: they can create a garrison-state controlled by
ferocious ideology, or they can protect the higher kind of order, sheltering
freedom and justice, declaring the dignity of man.

Claim # 52. American national identity has been shaped by the biblical language
chosen by the first settlers, leaders, and preachers to emphasize both covenant
and apocalypse. Of particular appeal to early Americans - from the Puritans to
the architects of the American constitution - was the text of Deuteronomy,
outlining the covenant between God and Israel.

Like the Israelites, early Americans understood themselves to be entering into


the Promised Land. Following the covenantal pattern outlined in Deuteronomy
of prescribed moral and legal obligations to be kept by the people of Israel in
return for God's blessing, the settlers understood themselves to be obligated to
do God's will in return for God's blessings. Almost 3,000 years after the
Covenant at Sinai, the Pilgrims, who saw themselves as new Israelites embarked
on a venture into their own "hideous and desolate wilderness," introduced into
North America a major stream of thought derived from the biblical idea of
covenant.

The Puritans and their covenantal documents have had a lasting influence on
American political life. As Sacvan Bercovitch, a scholar of American literature,
puts it, [T]heir influence appears most clearly in the extraordinary persistence
of a rhetoric grounded in the Bible, and in the way that Americans keep
returning to that rhetoric, especially in times of crisis, as a source of cohesion
and continuity.
Claim # 53. The principles of government are founded in the rights of man.
Thomas Jefferson to John Cartwright, 1824. ME 16:51

Claim # 54. A government by representation is capable of extension over a


greater surface of country than one of any other form. Thomas Jefferson to
Pierre Samuel Dupont de Nemours, 1816. ME 14:491

Claim # 55. The catholic principle of republicanism is that every people may
establish what form of government they please and change it as they please, the
will of the nation being the only thing essential. Thomas Jefferson: The Anas,
1792. ME 1:330

Claim # 56. Governments are republican only in proportion as they embody the
will of their people, and execute it. Thomas Jefferson to Samuel Kercheval,
1816. ME 15:33

Claim # 57. A government is republican in proportion as every member


composing it has his equal voice in the direction of its concerns: not indeed in
person, which would be impracticable beyond the limits of a city or small
township, but by representatives chosen by himself and responsible to him at
short periods. Thomas Jefferson to Samuel Kercheval, 1816. ME 15:33

Claim # 58. A representative government is a government in which the will of


the people will be an effective ingredient. Thomas Jefferson to Benjamin Austin,
1816. ME 14:388

Claim # 59. Every nation has a right to govern itself internally under what forms
it pleases, and to change these forms at its own will; and externally to transact
business with other nations through whatever organ it chooses, whether that be
a King, Convention, Assembly, Committee, President, or whatever it be. The
only thing essential is, the will of the nation. Thomas Jefferson to Thomas
Pinckney, 1792. ME 9:7

Claim # 60. The ultimate arbiter is the people of the Union. Thomas Jefferson to
William Johnson, 1823. ME 15:451

Claim # 61. It is the people, to whom all authority belongs. Thomas Jefferson to
Spencer Roane, 1821. ME 15:328

Claim # 62. The people are in truth the only legitimate proprietors of the soil
and government. Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1813.
ME 19:197

Claim # 63. The further the departure from direct and constant control by the
citizens, the less has the government of the ingredient of republicanism.
Thomas Jefferson to John Taylor, 1816. ME 15:20
Claim # 64. The hereditary branches of modern governments are the patrons of
privilege and prerogative, and not of the natural rights of the people, whose
oppressors they generally are. Thomas Jefferson to George Washington, 1784.
ME 4:218, Papers 7:106

Claim # 65. Hereditary bodies always on the watch for their own
aggrandizement, profit of every opportunity of advancing the privileges of their
order, and encroaching on the rights of the people. Thomas Jefferson to A.
Coray, 1823. ME 15:483

Claim # 66. Under the law of nature, all men are born free, every one comes into
the world with a right to his own person, which includes the liberty of moving
and using it at his own will. This is what is called personal liberty, and is given
him by the Author of nature, because necessary for his own sustenance.
Thomas Jefferson, Legal Argument, 1770. FE 1:376

Claim # 67. The equality among our citizens is essential to the maintenance of
republican government. Thomas Jefferson: Thoughts on Lotteries, 1826. ME
17:461

Claim # 68. From the moment that to preserve our rights a change of
government became necessary, no doubt could be entertained that a republican
form was most consonant with reason, with right, with the freedom of man, and
with the character and situation of our fellow citizens. Thomas Jefferson: Reply
to Virginia Legislature, 1809. ME 16:333

Claim # 69. To establish republican government, it is necessary to effect a


constitution in which the will of the nation shall have an organized control over
the actions of its government, and its citizens a regular protection against its
oppressions. Thomas Jefferson to Lafayette, 1816. ME 19:240

Claim # 70. The republican is the only form of government which is not
eternally at open or secret war with the rights of mankind. Thomas Jefferson:
Reply to Address, 1790. ME 8:6, Papers 16:225

Claim # 71. Section 4, Article IV of the U.S. Constitution makes it a duty of the
Federal government to guarantee to every state a "republican form of
government."

Claim # 72. A just government and a legitimate power of this government


originates in the use for the benefit of those from whom it is derived and over
whom it is exercised.

Claim # 73. A republic is a representative government, a government run by and


for the people. It is not a pure democracy where the people govern themselves
directly. The essence of republicanism is representation and renovation, the
selection by the citizenry of a corps of public functionaries who derive their
mandate from the people and act on their behalf, serving for a limited period
only, after which they are replaced or retained, at the option of their principal.
Obviously, a republican government is a responsible government whose officials
hold and discharge their position as a public trust and shall, according to the
Constitution, 'at all times be accountable to the people' they are sworn to serve.
The purpose of a republican government it is almost needless to state, is the
promotion of the common welfare according to the will of the people
themselves.

Claim # 74. A democracy is always temporary in nature; it simply cannot exist


as a permanent form of government. A democracy will continue to exist up until
the time that voters discover that they can vote themselves generous gifts from
the public treasury. From that moment on, the majority always votes for the
candidates who promise the most benefits from the public treasury, with the
result that every democracy will finally collapse due to loose fiscal policy, which
is always followed by a dictatorship.

Claim # 75. 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. 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. Federalist 10

Claim # 76. The most basic meaning of democracy is majority rule, whether the
majority be defined by race, religion, ethnicity, language, economic interest, or
just a common opinion. The attractions of democracy are the freedom enjoyed
by the majority from being ruled by one or a few, and the tolerance shown
among the members of the majority.

The problem of democracy is the status of the minority: will they be tolerated or
oppressed? Will a perception of their victimization make the minority
unreasonable? Will mutual suspicion destroy the common good?

Claim # 77. The history of democracy is marred by cycles of violent conflict


between majorities and minorities, followed by dictatorship embraced by all for
the sake of civil peace, or by foreign domination. Federalist 9, 10, 51

These tendencies are widely and regrettably evident today, perhaps most vividly
in the Caucasus. The successful democracies are those that, since the 17th
Century, have been able to establish powerful institutions that protect essential
rights and liberties (life, property, religion, speech, and association) of all
individuals, whether of the majority or the minority. This kind of democracy is
liberal democracy. The liberal principle is that each individual has a pre-political
right to use their own capacities as they choose--consistent with the equal rights
of others and with the common good (Fed. 10). To make freedom of religion,
speech, and association effective, the right to property and to its productive use
by owners, employers, and workers must be secure, for "In the general course
of human nature, a power over a man's subsistence amounts to a power over his
will" (Fed. 79). Hence, privatization and the system of contract law supporting
private property and enterprise is of crucial importance for the viability of
liberal democracy, and is a life and death issue for the postcommunist
transition.

Claim # 78. A republic is a system of government in which the scheme of


representation takes place, so that the activities of governing are delegated to a
small number of citizens elected by the rest, who must accordingly represent
the electorate. The detailed structure of the scheme of representation—the
specific arrangements of the public offices—is the constitution of the republic; it
constitutes the political life of the republic and shapes the private lives of
citizens. Federalist 10

A republic is to be contrasted with a monarchy: in a pure or absolute monarchy,


the governing power (the throne) is completely independent of the people, who
thus enjoy no self-government. In a republic, the governing power is, in some
way, dependent on the people. But a republic could be either aristocratic or
democratic. A democratic republic is one in which the delegated representatives
are drawn "from the great body of the society" so that the "government . . .
derives all its powers directly or indirectly from the great body of the people"
(Fed. 39). This means that those in power have no power in their own right.
Democratic republic and representative democracy are synonomous terms. In
contrast, an aristocratic republic is one in which an elite minority, "a favored
class" (Fed. 39) with a special, permanent and distinct interest is represented
either exclusively or along with the majority of the people. In an aristocratic
republic, the representation of the favored class (the aristocracy) cannot be
changed or removed by popular elections.

Claim # 79. The advantages of the federal system, the compound republic, are
two-fold. First, a "double-security" is provided for the rights of the people in
that the different governments will control each other, at the same time that
each will be controlled by itself. Second, the society itself will be broken into so
many parts, interests, and classes of citizens, that the rights of individuals, or of
the minority, will be in little danger from interested combinations of the
majority. Furthermore, in the extended republic of the United States and among
the great variety of interests, parties, and sects which it embraces, a coalition of
the whole society could seldom take place on any other principles than those of
justice and the general good.
Claim # 80. An elective despotism was not the government we fought for, but
one which should not only be founded on free principles, but in which the
powers of government should be so divided and balanced among several bodies
of magistracy, as that no one could transcend their legal limits, without being
effectually checked and restrained by the others. Thomas Jefferson ("Notes on
the State of Virginia," 1782)

Claim # 81. Wherever the real power in a Government lies, there is the danger
of oppression. In our Governments the real power lies in the majority of the
Community, and the invasion of private rights is chiefly to be apprehended, not
from acts of Government contrary to the sense of its constituents, but from acts
in which the Government is the mere instrument of the major number of the
Constituents.

Claim # 82. The desires of the majority of the people are often for injustice and
inhumanity against the minority. To remedy the dangers attendant upon the
arbitrary use of power, checks, however multiplied, will scarcely avail without
an explicit admission of some limitation of the right of the majority to exercise
sovereign authority over the individual citizen. In popular governments,
minorities constantly run much greater risk of suffering from arbitrary power
than in absolute monarchies. John Adams ("On Government," 1778)

Claim # 83. The destruction of republics has generally resulted from the hatred
and discord growing out of majority tyranny over the rights of minorities.

Claim # 84. On a candid examination of history we shall find that turbulence,


violence, and abuse of power by the majority trampling on the rights of the
minority, have produced factions and commotions, which in republics, have
more frequently than any other cause produced despotism. If we go over the
whole history of the ancient and modern republics, we shall find their
destruction to have generally resulted from those causes. If we consider the
peculiar situation of the United States, and what are the sources of that diversity
of sentiment which pervades its inhabitants, we shall find great danger to fear,
that the same causes may terminate here, in the same fatal effects, which they
produced in those republics. This danger ought to be wisely guarded against.
James Madison, Speech in the Virginia Ratifying Convention on Control of the
Military, June 16, 1788 in: History of the Virginia Federal Convention of 1788,
vol. 1, p. 130 (H.B. Grigsby ed. 1890)

Claim # 85. 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 inquiries are directed. Federalist 10
Claim # 86. Stability is the foremost requirement for a prosperous people and
that this stability can be best maintained by a cooperation between the state and
national governments. Stability is threatened if too many people hold power,
and an energetic government should require that the execution of its laws be
the responsibility of one man, the president. But in a free society power is
derived from the people and those who hold office are responsible to them.

Claim # 87. Stability is achieved through the principle of representation; liberty


is protected because the government rests upon the consent of the people. In
addition, a part of this balance is achieved by establishing relatively short terms
of office for representatives, senators, and the president. This operation assists
in achieving this balance between the state and national governments because
national government ultimately derives its powers either directly or indirectly
from the people and is administered by persons who hold public office for a
limited period of time or during good behavior. It reflects the choice of the
people.

Claim # 88. The government in its structure is both national and federal. In the
operation of its powers, it is national; in the extent of its power, it is federal. The
national government's legitimate authority rests upon the consent of the people
and the states, but which is more powerful than any individual or aggregate of
states alone.

Claim # 89. A large republic can protect minority rights more effectively than a
small republic because it will be more difficult for a self-interested faction to
achieve a majority.

Claim # 90. Though it is more difficult to form a republican government in an


extensive country than in a city; there is more facility, when once it is formed, of
preserving it steady and uniform, without tumult and faction. This is so because
fragmented election districts (that is, thousands of election districts) and
indirect elections will serve to give the people a chance to elect their rulers at
the same time as this process operates to refine popular passions. Moreover,
the multiplicity and competition of competing interests in a large state will
operate to neutralize the dread forces of faction. Democracies are turbulent. For
however the people may be separated or divided into small parties, either in
their votes or elections; their near habitation in a city will always make the force
of popular tides and currents very sensible. Aristocracies are better adapted for
peace and order, and accordingly were most admired by ancient writers; but
they are jealous and oppressive. In a large government, which is modelled with
masterly skill, there is compass and room enough to refine the democracy, from
the lower people, who may be admitted into the first elections or first
concoction of the commonwealth, to the higher magistrates, who direct all the
movements. At the same time, the parts are so distant and remote, that it is very
difficult, either by intrigue, prejudice, or passion, to hurry them into any
measures against the public interest.
Claim # 91. The greater number of citizens and extent of territory which may be
brought within the compass of republican than of democratic government is the
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.
Federalist 10

Claim # 92. Only a republican form of a government and not a democracy


directly by the people can provide for the cure to the disease of factions because
in a republic they must compete with other factions to gain power in being
represented through the medium of the people and to appeal to their common
interests. So, factions are unable to spread on such a national level because of
the disunity among them to gain public approval on a broad scale.

Claim # 93. It is of great importance in a republic not only to guard the society
against the oppression of its rulers, but to guard one part of society against the
injustice of the other part. Different interests necessarily exist in different
classes of citizens. If a majority be united by a common interest, the rights of
the minority will be insecure. There are but two methods of providing against
this evil. The existence of an hereditary or self-appointed authority superior to
the majority, to the people; or, in the alternative, the existence of so many
conflicting interests among the citizens as to constitute a safeguard against any
dominant majority likely to become oppressive. The second method will be
exemplified in the federal republic of the United States. Whilst all authority in it
will be derived from, and dependent on the society, the society itself will be
broken into so many parts, interests and classes of citizens, that the rights of
individuals or of the minority, will be in little danger from interested
combinations of the majority. Federalist 51

Claim # 94. An extensive republic, wherein society is broken into parts,


interests, and classes, along with the Bill of Rights, ensures that the minority
will not be in danger from the majority.

Essential to our understanding of our origins is an understanding of what our


government really is. Americans, commonly speaking, refer to our form of
government as a "democracy." One reason for this is because politicians of all
political parties generally refer to our government as a democracy. Politicians
generally do that. Glib references are constantly being made anent our
democracy. But our form of government, strictly speaking, is not a democracy.
It may more properly be called a representative democracy, but, strictly
speaking, ours is a republic. We pledge allegiance to the flag of the United
States of America and to the Republic -- not to the democracy, but to the
Republic -- for which it stands. We operate by democratic processes. Ours is a
democratic society -- I have no quarrel with that -- but we do not live in a pure
democracy. This is a Republic. We ought to get it straight. The simple fact is
that the United States is a constitutional republic, not a democracy. It is
inaccurate to use the two terms interchangeably. The source of authority and
treatment of minorities are different for these two forms of government. In a
democracy, the majority rules, meaning that there are no protections for
minority rights. Whatever the majority wants rules the day. A republic, in
contrast, is rule by law, and the law can protect the minority from the tyranny of
the majority. A republic is where people elect representatives who are
responsible to them and who govern according to law. In a democracy, people
hold the power to rule directly. Examples of democracy in action in this country
include initiative and referendum, where the people vote directly on specific
issues. Naturally, it would be impractical to try to administer an entire country if
the people had to have a direct vote on every issue. James Madison, quite
possibly the most important American Founder, sought out to answer one of the
most important questions in order to reconcile liberty or self-government and
authority or a union of the states in a large republic: Is a republican government
in a large state possible? Can a free, strong, and popular government maintain
itself in a large state? There were two main obstacles that faced Madison: (1) a
despotic nation as a necessity of government of a large size and (2) faction, and
most likely injustice, and weakness of the confederate republic, where the
powers resided in the thirteen states. The goal for Madison was to bring
together the elements of a strong but just government in a large state. Madison
was committed to a republican form of government by majority rule, but yet
which also preserved the basic rights of the minority. History had proven that a
self-governing body politic was only possible in small states, like Ancient
Greece and that a authoritative government was possible in large states, like
England, which more so resembled a monarchical style of governing, which
were not actually held together by republican principles. While Patrick Henry
and the anti-Federalists believed that a republican government was only
possible in small states or was otherwise tyrannical and brutal in large forms
and Hamilton and Adams believed that only an Empire was fit to form a central
government to suppress factions who were anarchical, selfish, and unjust,
Madison challenged the views of current political theory and brought forth a
new concept called the "extensive republic" or federal republic. Ancient Greece
had been a prime example of a weak government torn by faction, self-interest,
and indecisiveness and which foreign forces finally destroyed. But Madison was
able to overcome the barriers of these two positions and find a solution that
would reconcile them by his insight into such thinkers as Montesquieu, Hume,
and others to form his own genuine idea of a federal republic.
Madison, one of the principal framers of the Constitution, alluded to "the
confounding of a republic with a democracy" in the Federalist #14, written on
November 30, 1787. He proceeds to delineate a true distinction between these
forms: ". . . in a democracy, the people meet and exercise the government in
person; in a republic they assemble and administer it by their representatives
and agents. A democracy consequently will be confined to a small spot. A
republic may be extended over a large region." Madison was confronting the
critics of the Constitution, some of whom sought, by the artifice of confusing the
terms democracy and republic, to maintain that a republic could never be
established except among a small number of people, living within a small
territory. As Madison so ably pointed out, this observation was applicable to a
democracy only. Madison describes the territorial limitations of democracies
such as the "turbulent democracies of ancient Greece," saying: ". . .the natural
limit of a democracy is that distance from the central point, which would just
permit the most remote citizens to assemble as often as their public functions
demand; and will include no greater number than can join in those functions; . .
." He proceeds to say that the natural limit of a republic "is that distance from
the center, which will barely allow the representatives of the people to meet as
often as may be necessary for the administration of public affairs." Madison
argues that the territorial limits of the United States do not exceed the limit
within which a republic can operate and effectively administer the affairs of the
people. Again, in the Federalist #10, where Madison discusses the sources and
causes and dangers of faction, he defines a "pure" democracy as being "a
society, consisting of a small number of citizens, who assemble and administer
the government in person." And Madison indicates that such a form of
government "can admit of no cure for the mischiefs of faction." Madison again -
- stating that, "democracies have ever been spectacles of turbulence and
contention," Madison proceeds to add that they "have ever been found
incompatible with personal security, or the rights of property." He adds:
"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." Instead
elected bodies of wise citizens are empowered to discern the interests of the
whole community. But Madison saw that this was not sufficient and that there is
a possibility of an abuse of power or a betrayal of public trust, so he conceived
that the sphere of government must be enlarged to combat this malevolent
tendency, so that society will divide itself into diverse views and interests, which
reduce the power of factions and ambitious leaders in discerning the peoples'
interests. Mutual distrust based upon ignorance of each other's motives will
tend to keep the several factions isolated. Class conflict was the basis of politics
and a free society. The checks and balance schemes, thought Madison, were
effective political measures of maintaining a free government, but its principle
should not be carried so far as to destroy the state.
For Madison, the ideal state would have a political society founded on
agrarianism, but with an admixture of other economies so to eliminate great
dependence of foreign countries. Madison disliked the idea of congested cities
and distrusted both capitalists and mobs, instead he favored the rural
population, those who provide for their own food, clothes, and shelter. They are
more: they are the best basis of public liberty, and the strongest bulwark of
public safety. Madison also emphasized upon an even distribution of wealth,
which could be enacted without violating property rights; he would reduce
extreme wealth towards a state of mediocrity, and raise extreme indigence
towards a state of comfort. The second criteria for an ideal state for Madison
was that the state must be a republic, as distinguished both from monarch and a
pure democracy. It must be a form of government upon representation and
extending over a large amount of land and it must derive its power from the
people and not from any small portion or elite class. Furthermore, persons must
hold these governmental offices for a limited time and during good behavior. A
purely democratic state is the worst of all because it cannot check the powers of
common passions or interests or factions. It is quite different with a republic,
however. Madison extols this form as a better approach to dealing with faction:
"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." Again, Madison clearly
distinguishes between a democracy and a republic: "The two great points of
difference between a democracy and a republic are, first, the delegation of the
government, in the latter," -- meaning in the republic -- "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" -- meaning the republic -- "may
be extended." Madison in the Federalist #10 then examines whether the public
voice pronounced by the representatives of the people will be more consonant
to the public good in a small rather than in a large republic, and he comes down
in favor of a more extensive republic as being "most favorable to the election of
proper guardians of the public weal." Madison clearly decides in favor of the
larger territory. But let's let him speak for himself: "The greater number of
citizens and extent of territory which may be brought within the compass of
republican, than of democratic government" is a "circumstance principally
which renders factious combinations less to be dreaded in the former" -- the
republic -- "than in the latter." In summation, Madison said, "Hence it clearly
appears, that the same advantage, which a republic has over a democracy, in
controlling the effects of faction" -- George Washington, we will remember,
warned us about faction in his farewell address. Madison said, "Hence it clearly
appears, that the same advantage, which a republic has over a democracy, in
controlling the effects of faction, is enjoyed by a large over a small republic -- is
enjoyed by the Union over the States composing it."
Hamilton, in Madison's notes on the Constitutional Convention, referred to the
"amazing violence and turbulence of the democratic spirit." Madison himself, in
his notes, referred to the dangers of a "leveling spirit," when he said: "No
agrarian attempts have yet been made in this country, but symptoms, of a
leveling spirit, as we have understood, have sufficiently appeared in a certain
quarter to give notice of the future danger. How is this danger to be guarded
against on republican principles?" Madison was probably referring to the Shays'
Rebellion which had occurred just the year before the convention, in 1786,
when he spoke of the symptoms of a "leveling spirit." Madison was espousing
the establishment of a Senate as "a body in the government sufficiently
respectable for its wisdom and virtue, to aid on such emergencies, the
preponderance of justice by throwing its weight into that scale." Madison went
on to observe "That as it was more than probable we were now digesting a plan
which in its operations would decide forever the fate of republican government -
- talking about the constitution -- we ought not only to provide every guard to
liberty that its preservation could require, but be equally careful to supply the
defects which our own experience had particularly pointed out." What a wise,
wise man, Madison. What wise men who gathered there in Philadelphia during
those hot summer days between May 25, 1787 and September 17 of that year
and hammered out the Constitution of the United States. What a document!

In the discussions concerning the mode of selection of members of the first


branch of the national legislature, Mr. Sherman opposed election by the people.
We hear a lot about this "democracy" of ours. Many of the framers were
concerned about democracy. Some of them didn't want any part of it. They
didn't want a democracy. Mr. Sherman opposed election by the people,
insisting that it ought to be by the State legislatures. According to Madison's
notes, Mr. Sherman expressed himself accordingly: "The people, he said,
immediately should have as little to do as may be about the Government. They
want information and are constantly liable to be misled." Roger Sherman, a
delegate from Connecticut, was joined in this feeling by Elbridge Gerry of
Massachusetts who, as Madison explained, averred: "The evils we experience
flow from the excess of democracy. . . . He . . . had been taught by experience
the danger of the leveling [sic] spirit." George Mason of Virginia favored the
election of the larger branch by the people. According to Madison, Mason
"admitted that we had been too Democratic but was afraid we should
incautiously run into the opposite extreme." They didn't want to go to the
extreme on either edge. Governor Edmund Randolph of Virginia, who had
offered the resolves, around which the debates would swirl throughout the
Convention. These are Madison notes from which I am quoting Governor
Edmund Randolph of Virginia who had presented the resolves on the 29th day
of May, 1787. It is so easy for me to remember that day because the 29th day of
May is my wedding anniversary. It happens to be my wife's wedding
anniversary also, naturally, May 29. We have seen 61 anniversaries already in
our lifetime. And so here is the quote of Governor Randolph. He "observed that
the general object was to provide a cure for the evils under which the United
States labored; that in tracing these evils to their origin, every man had found it
in the turbulence and follies of democracy." He was of the opinion, therefore,
that a check "was to be sought for against this tendency of our government,"
and he believed that a Senate -- a Senate would achieve this end. In speaking of
the Senate of Maryland, and the length of Senatorial terms in that State,
Hamilton said: "They suppose seven years a sufficient period to give the Senate
an adequate firmness, from not duly considering the amazing violence and
turbulence of the democratic spirit. When a great object of government is
pursued, which seizes the popular passions, they spread like wildfire, and
become irresistible." This was Hamilton speaking, referring to the Senate of
Maryland.

It is evident from Madison's notes on the Convention that a pure democracy, as


a form of government, did not appeal to the delegates at the Convention, and
that a fear of the "leveling spirit" of democracy was prevalent at the time and
leading members of the Convention were aware of this concern. Therefore, as
Alexis de Tocqueville stated in "Democracy in America," "the Americans have a
democratic state of society", we should be more careful than to allude to our
form of government as a "democracy." If we want to say it's a representative
democracy, that is one thing. But it is not a "democracy". To do so is to use our
language loosely. And we all use our language loosely from time to time. I do.
But I never refer to this government as a "democracy." I prefer to stick to the
strict definition as explained by Madison and refer to ours as a republic -- which
I proudly do. The framers were wise men. As Butler of South Carolina said "We
must follow the example of Solon, who gave the Athenians not the best
government he could devise, but the best [government that] they would
receive." Our founding fathers gave us a republic. When Benjamin Franklin
came out of the Constitutional Convention in 1797, as the story goes, he was
asked by a woman who was sitting there, Mr. Franklin, what have you given us?
This quote is in the front of many copies of the Constitution. His answer was, a
republic, madam, if you can keep it, a republic. But I thought we have a
democracy. I don't know if we cite that Pledge of Allegiance just from rote and
never think about what it says. But you remember those words in there, the
republic for which it stands, not the democracy, but the republic for which it
stands. What is the difference between a republic and a democracy and why did
Benjamin Franklin make a point of telling this lady, a republic, madam, if you
can keep it? I wonder what was in Benjamin Franklin's head, in his mind. Was
he concerned about threats from outside our country? We were a long ocean
away with sailing ships from any potential enemy. I doubt that his concern was
a threat from without. I think that he was more concerned about a threat from
within, a republic, madam, if you can keep it.

Claim # 95. The fundamental difference between a democracy and a republic is


a rule of law. In a democracy, what the majority wants prevails. In a republic, it
is a rule of law that prevails. Now, we can change that law. We have changed it
27 times. But it takes a very deliberative process, two-thirds of the House, two-
thirds of the Senate, and then three-fourths of the State legislature. This is a
long-time process. It gives a lot of time for reflection. The last time we tried to
amend the Constitution it didn't quite make it, the Equal Rights Amendment,
you remember. Nobody denies that women should have equal rights with men.
But what that amendment says, that you couldn't differentiate between men and
women. If you had a draft, you would have to draft women. We can change this
Constitution, but it takes a very deliberative process and a super majority vote.

Claim # 96. A republic is a government in which the sovereign power is in the


hands of the people, but is exercised through officials whom they elect.

Claim # 97. A democracy is a government in which all power is exercised


directly by the people. It is next to impossible for this to be done except in small
communities, but the spirit of democracy prevails in many republics and some
monarchies.

Claim # 98. Democracy never lasts long. It soon wastes, exhausts, and murders
itself. There never was a democracy yet that did not commit suicide. It is in vain
to say that democracy is less vain, less proud, less selfish, less ambitious, or less
avaricious than aristocracy or monarchy. John Adams, The Works of John
Adams [1851] Boston: Little, Brown and Co., 1856

Although the Founding Fathers of our nation had the opportunity to do so, they
did not establish a democracy. What they established for the United States,
instead, was a republic. Quotes like the one above from Adams speak of
"democracy" in the strict sense of an absolute majority rule, with no recourse
from the majority’s decisions unless the majority changes its mind. A republic,
on the other hand, is based not simply on the rule of the majority but also on the
rule of law. Almost all of the men who ratified the Constitution agreed that the
defining elements of a republic were: (1) Rule by the majority of participants, (2)
absence of a monarch, and (3) the rule of law. While elected representatives
pass laws, they act within the existing system of laws. The rule of law means
that even rulers must follow the law and that the law must be clear, widely
known, and enforced fairly. In our republic, until recently, rulers were also
thought to be accountable to a higher law, and there is the key difference. There
are certain laws that the majority can never change. These laws flow from the
fundamental rights of the human person and from God Himself. The Founding
Fathers recognized this and expected all future generations of Americans to
recognize it as well.

Claim # 99. The law dictated by God Himself, is, of course, superior in
obligation to any other. It is binding over all the globe in all countries, and at all
times: no human laws are of any validity, if contrary to this; and such of them as
are valid derive all their force, and all their authority, mediately or immediately,
from this original. William Blackstone, Commentaries on the Laws of England,
vol. 1 (Philadelphia: Robert Bell, 1771), p. 41
Upon this law, depend the natural rights of mankind, the supreme being gave
existence to man, together with the means of preserving and beatifying that
existence. He endowed him with rational faculties, by the help of which, to
discern and pursue such things, as were consistent with his duty and interest,
and invested him with an inviolable right to personal liberty, and personal
safety. The sacred rights of mankind are not to be rummaged for, among old
parchments, or musty records. They are written, as with a sun beam, in the
whole volume of human nature, by the hand of the divinity itself; and can never
be erased or obscured by mortal power. Had the rest of America passively
looked on, while a sister colony was subjugated, the same fate would gradually
have overtaken all. The safety of the whole depends upon the mutual protection
of every part. If the sword of oppression be permitted to lop off one limb
without opposition, reiterated strokes will soon dismember the whole body.
Alexander Hamilton, The Farmer Refuted, 23 Feb. 1775

Claim # 100. The law established by the Creator, which has existed from the
beginning, extends over the whole globe, is everywhere and at all times binding
upon mankind. This law is the law of God by which he makes his way known to
man and is paramount to all human control. Rufus King, The Life and
Correspondence of Rufus King, Charles King, editor, Vol. VI, p. 276 (New, G.P.
Putnam’s Sons 1900)

Claim # 101. All laws may be arranged in two different classes, 1) Divine. 2)
Human. Human law must rest its authority ultimately upon the authority of that
law which is Divine. James Wilson, Of the General Principle of the Law and
Obligation, in The Works Of James Wilson 49, 91–93 (James DeWitt Andrews
ed., Chicago, Callaghan & Co. 1896)

The Founders of our nation believed in biblical law, and that was the standard
for law and government in our country until the turn of this century. John W.
Welch, Biblical Law in America: Historical Perspectives and Potentials for
Reform, 2002 BYU L. REV. 611, 619–625, 635 (2002) (detailing the explicit use
of biblical law in the formation of early colonial American law). Now, instead,
legal positivism, “the theory that legal rules are valid only because they are
enacted by an existing political authority or accepted as binding in a given
society, not because they are grounded in morality or in natural law” (Black’s
Law Dictionary 915 (8th ed. 2004)), has become the standard.

Claim # 102. [as Montesquieu wrote in Spirit of the Laws, VI,c.2:] in republican
governments, men are all equal; equal they are also in despotic governments: in
the former because they are everything; in the latter because they are nothing.

Claim # 103. The central doctrine of the American political system is our belief
in the inviolability of the individual man or woman. This is one of the self-
evident truths enunciated in the Declaration of Independence: "We hold these
Truths to be self-evident, that all Men are created equal, that they are endowed
by their Creator with certain unalienable Rights, that among these are Life,
Liberty, and the Pursuit of Happiness." The "equality" which is the key idea of
the Declaration means "equal justice," the Rule of Law, the same rules for
everybody because we are one in our essential humanity.

Claim # 104. The freedom quest of Western man, as it has exhibited itself
periodically over the past 20 centuries, is not a characteristic of man as such. It
is a cultural trait, philosophically and religiously inspired. The basic religious
vision of the West regards the planet earth as the creation of a good God who
gives a man a soul and makes him responsible for its proper ordering; puts him
on earth as a sort of junior partner with dominion over the earth; admonishes
him to be fruitful and multiply; commands him to work; makes him a steward of
the earth's scarce resources; holds him accountable for their economic use; and
makes theft wrong because property is right. When this outlook comes to
prevail, the groundwork is laid for a free and prosperous commonwealth such as
we aspired to on this continent.

Claim # 105. There is a natural aristocracy among men. The grounds of this are
virtue and talents. There is also an artificial aristocracy founded on wealth and
birth, without either virtue or talents; for with these it would belong to the first
class. Thomas Jefferson to John Adams, 1813. ME 13:396

Claim # 106. A heavy aristocracy and corruption are two bridles in the mouths
of a people which will prevent them from making any effectual efforts against
their masters. Thomas Jefferson to James Madison, 1785. FE 4:38, Papers 8:40

Claim # 107. The European nations are nations of eternal war. All their energies
are expended in the destruction of the labor, property and lives of their people.
On our part, never had a people so favorable a chance of trying the opposite
system, of peace and fraternity with mankind, and the direction of all our means
and faculties to the purpose of improvement instead of destruction. Thomas
Jefferson to James Monroe, 1823. ME 15:436

Claim # 108. The care of human life and happiness and not their destruction is
the first and only legitimate object of good government. Thomas Jefferson to
Maryland Republicans, 1809. ME 16:359

Claim # 109. The only orthodox object of the institution of government is to


secure the greatest degree of happiness possible to the general mass of those
associated under it. Thomas Jefferson to M. van der Kemp, 1812. ME 13:135

Claim # 110. The first object of human association is the full improvement of
their condition. Thomas Jefferson: Declaration and Protest of Virginia, 1825. ME
17:444
Claim # 111. Our laws know no distinction of country and of classes among
individuals. Thomas Jefferson to the Emperor of Morocco, 1803. ME 19:136

Claim # 112. The most effectual means of preventing the perversion of power
into tyranny are to illuminate, as far as practicable, the minds of the people at
large, and more especially to give them knowledge of those facts which history
exhibits, that possessed thereby of the experience of other ages and countries,
they may be enabled to know ambition under all its shapes, and prompt to exert
their natural powers to defeat its purposes. Thomas Jefferson: Diffusion of
Knowledge Bill, 1779. FE 2:221, Papers 2:526

Claim # 113. Every government degenerates when trusted to the rulers of the
people alone. The people themselves, therefore, are its only safe depositories.
And to render even them safe, their minds must be improved to a certain
degree. Thomas Jefferson: Notes on Virginia Q.XIV, 1782. ME 2:207

Claim # 114. The information of the people at large can alone make them the
safe as they are the sole depositary of our political and religious freedom.
Thomas Jefferson to William Duane, 1810. ME 12:417

Claim # 115. Whenever the people are well-informed, they can be trusted with
their own government; whenever things get so far wrong as to attract their
notice, they may be relied on to set them to rights. Thomas Jefferson to Richard
Price, 1789. ME 7:253

Claim # 116. If the children are untaught, their ignorance and vices will in
future life cost us much dearer in their consequences than it would have done in
their correction by a good education. Thomas Jefferson to Joseph C. Cabell,
1818. FE 10:99

Claim # 117. Laws will be wisely formed and honestly administered in


proportion as those who form and administer them are wise and honest; whence
it becomes expedient for promoting the public happiness that those persons
whom nature has endowed with genius and virtue should be rendered by liberal
education worthy to receive and able to guard the sacred deposit of the rights
and liberties of their fellow citizens; and that they should be called to that
charge without regard to wealth, birth or other accidental condition or
circumstance. But the indigence of the greater number disabling them from so
educating at their own expense those of their children whom nature has fitly
formed and disposed to become useful instruments for the public, it is better
that such should be sought for and educated at the common expense of all, than
that the happiness of all should be confined to the weak or wicked. Thomas
Jefferson: Diffusion of Knowledge Bill, 1779. FE 2:221, Papers 2:527

An enlightened citizenry is indispensable for the proper functioning of a


republic. Self-government is not possible unless the citizens are educated
sufficiently to enable them to exercise oversight. It is therefore imperative that
the nation see to it that a suitable education be provided for all its citizens.

Claim # 118. All just authority in the institutions of political society is derived
from the people, and established with their consent.

Claim # 119. The people have retained all powers of government except those
expressly relinquished by the ratification of their respective state and federal
constitutions.

Claim # 120. The federal government can exercise no powers except those
specifically enumerated in the Constitution, and such implied powers as are
necessary and proper to carry into effect the enumerated powers. UNITED
STATES v. CURTISS-WRIGHT EXPORT CORPORATION, 299 U.S. 304 (1936)

Claim # 121. The people of the United States erected their constitutions or
forms of government, to establish justice, to promote the general welfare, to
secure the blessings of liberty, and to protect their persons and property from
violence. The purposes for which men enter into society will determine the
nature and terms of the social compact, and as they are the foundation of the
legislative power, they will decide what are the proper objects of it. The nature
and ends of legislative power will limit the exercise of it. An act of the
legislature contrary to the great first principles of the social compact cannot be
considered a rightful exercise of legislative authority. The obligation of a law in
governments established on express compact and on republican principles must
be determined by the nature of the power on which it is founded. To maintain
that our federal or state legislature possesses such powers if it had not been
expressly restrained would be a political heresy altogether inadmissible in our
free republican governments. CALDER V. BULL, 3 U. S. 386 (1798)

Claim # 122. The powers delegated to government are amendable, but the
rights and powers reserved by the people are higher, unalienable, and
unapproachable by any lesser power that We The People delegated to either
State or federal governments, and still further, that, no Article of the
Constitution is to be without effect, and further, all acts repugnant to the
Constitution for The United States of America are Null and Void, as Declared in
the Land Mark, Supreme Court Finding, Marbury v. Madison, therefore, no one
is bound to obey an Act of Government that is prohibited by the Constitution,
the Supreme Law of The Land.

Claim # 123. In free governments the rulers are the servants and the people
their superiors and sovereigns.

Claim # 124. All political power is vested in and derived from the people only.
Claim # 125. All government of right originates from the people, is founded in
compact only, and instituted solely for the good of the whole.

Claim # 126. 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. SCOTT V.
SANDFORD, 60 U. S. 393 (1856)

Claim # 127. Allegiance and citizenship, differ, indeed, in almost every


characteristic. Citizenship is the effect of compact; allegiance is the offspring of
power and necessity. Citizenship is a political tie; allegiance is a territorial
tenure. Citizenship is the charter of equality; allegiance is a badge of inferiority.
Citizenship is constitutional; allegiance is personal. Citizenship is freedom;
allegiance is servitude. Citizenship is communicable; allegiance is repulsive.
Citizenship may be relinquished; allegiance is perpetual. With such essential
differences, the doctrine of allegiance is inapplicable to a system of citizenship;
which it can neither serve to controul, nor to elucidate. And yet, even among the
nations, in which the law of allegiance is the most firmly established, the law
most pertinaciously enforced, there are striking deviations that demonstrate the
invincible power of truth, and the homage, which, under every modification of
government, must be paid to the inherent rights of man. The doctrine is, that
allegiance cannot be due to two sovereigns; and taking an oath of allegiance to
a new, is the strongest evidence of withdrawing allegiance from a previous,
sovereign. TALBOT V. JANSEN, 3 U. S. 133 (1795)

The British doctrine allowed for double allegiances, something the founders
considered improper. Framer Rufus King said allegiance to the United States
depended on whether a person is a "member of the body politic." King says no
nation should adopt or naturalize a person of another society without the
consent of that person. The reason? Because "he ought not silently to be
embarrassed with a double allegiance." The powers of the general government
were limited and defined, preventing Congress from exercising the same kind of
sovereignty that Britain had over its claimed dominions within established
States of the Union. Under the old English common law doctrine of natural-born
subject, birth itself was an act of naturalization that required no prior consent or
demanded allegiance to the nation in advance. Furthermore, birth was viewed
as enjoining a "perpetual allegiance" upon all that could never be severed or
altered by any change of time or act of anyone. England considered all who
were born within the dominions of the crown to be its natural-born subjects
even after becoming naturalized citizens of the United States. England’s
"perpetual allegiance" due from birth was extremely unpopular in this country,
often referred to as absurd barbarism, or simply perpetual nonsense. America
went to war with England over the doctrine behind "natural-born subject" in
June of 1812. Under the British blockade, every American ship entering or
leaving was boarded by soldiers in search of British born subjects. At least
6,000 American citizens who were found to be British natural-born subjects
were impressed into military service on behalf of the British Empire.

Claim # 128. The independence of America was a national act. The avowed
object was to throw off the power of a distant country; to destroy the political
subjection; to elevate ourselves from a provincial to an equal state in the great
community of nations. It was, therefore, a political revolution, involving in the
change all the inhabitants of America; rendering them all members of the new
society, citizens of the new states. The declaration of independence was not a
unanimous act. It was the act of a majority. But the general sentiment of the day
was, that it bound the minority. They were all equally considered as citizens of
the United States. The political connection between the people of America and
the state of Great Britain was dissolved.

Claim # 129. The American people having derived their origin from many other
nations, and the Declaration of National Independence being entirely based on
the great principle of human equality, these facts demonstrate at once our
disconnected position as regards any other nation; that we have, in reality, but
little connection with the past history of any of them, and still less with all
antiquity, its glories, or its crimes. On the contrary, our national birth was the
beginning of a new history, the formation and progress of an untried political
system, which separates us from the past and connects us with the future only;
and so far as regards the entire development of the natural rights of man, in
moral, political, and national life, we may confidently assume that our country is
destined to be the great nation of futurity. The Great Nation of Futurity, The
United States Democratic Review, Volume 6, Issue 23, pp. 426-430

Claim # 130. The people, not the bureaucracy, are the sovereign. Our Federal
Government was created for the security and happiness of the people.
Executives, lawmakers, and members of the Judiciary are inferior in the sense
that they are in office only to carry out and execute the constitutional regime.
SCHLESINGER V. RESERVISTS COMMITTEE, 418 U. S. 208 (1974)

Claim # 131. The Government of the United States is one of delegated powers
alone. Its authority is defined and limited by the Constitution. All powers not
granted to it by that instrument are reserved to the States or the people.
UNITED STATES V. CRUIKSHANK, 92 U. S. 542 (1875)

Claim # 132. All political power is inherent in the people, and governments
derive their just powers from the consent of the governed, and are established
to protect and maintain individual rights.

Claim # 133. All political power is inherent in the people, and all free
governments are founded on their authority, and instituted for their protection,
security and benefit; and that, therefore, they have at all times an inalienable
and indefeasible right to change their form of government in such manner as
they may deem expedient. Governments derive their just powers from the
consent of the governed, and are established to protect and maintain individual
rights. All government originates with the people, is founded upon their will
only, and is instituted solely for the good of the people as a whole.

Claim # 134. All men are born equally free and independent, and have certain
natural, inherent and unalienable rights, among which are the enjoying and
defending life and liberty, acquiring possessing and protecting property, and
pursuing and obtaining happiness and safety.

Claim # 135. To secure these rights, Governments are instituted among Men,
deriving their just powers from the consent of the governed. Thomas Jefferson:
Declaration of Independence, 1776. ME 1:29, Papers 1:429

The Declaration articulates the first premise of American government, that


sovereignty resides in the people and governments obtain the powers to govern
by the consent of the people. Thus, the power of government extends only
insofar as it is delegated by the consent of the governed.

Claim # 136. No free Government, or the blessings of liberty, can be preserved


to any people but by a firm adherence to justice, moderation, temperance,
frugality, and virtue, and by frequent recurrence to fundamental principles. THE
VIRGINIA DECLARATION OF RIGHTS, June 12, 1776

Claim # 137. Where rights secured by the Constitution are involved, there can
be no rulemaking or legislation which would abrogate them. MIRANDA V.
ARIZONA, 384 U. S. 436 (1966)

Claim # 138. Whenever any form of government becomes destructive of these


ends [i.e., securing inherent and inalienable rights, with powers derived from
the consent of the governed], it is the right of the people to alter or 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. Thomas Jefferson: Declaration of Independence,
1776. ME 1:29, Papers 1:315

Claim # 139. If the representatives of the people betray their constituents, there
is then no resource left but in the exertion of that original right of self-defense
which is paramount to all positive forms of government, and which against the
usurpations of the national rulers, may be exerted with infinitely better prospect
of success than against those of the rulers of an individual state. In a single
state, if the persons intrusted with supreme power become usurpers, the
different parcels, subdivisions, or districts of which it consists, having no
distinct government in each, can take no regular measures for defense. The
citizens must rush tumultuously to arms, without concert, without system,
without resource; except in their courage and despair. Federalist 28

Claim # 140. There are more instances of the abridgment of the freedom of the
people by gradual and silent encroachment of those in power than by violent
and sudden usurpations. James Madison, Speech in the Virginia Convention,
1788

Claim # 141. The present political cartel has worked ceaselessly to turn this
great "Nation Under God" and the land of the free and the home of the brave
into the land of the fee and the home of the slave.

Claim # 142. We The People today find ourselves in the position of servant and
slave, rather than master, with the very government which we have established
becoming our master.

Claim # 143. The last two hundred years have witnessed the evisceration of
federalism as a constitutional and political principle for allocating governmental
power between the States and Washington. The Founding Fathers' vision of a
limited national government of enumerated powers has gradually given way to
an expansive, intrusive, and virtually omnipotent national government. States,
once the hub of political activity and the very source of our political tradition,
have been reduced in significant part to administrative units of the national
government, their independent political power usurped by almost two centuries
of centralization.

"Potestas stricte interpretatur." Power should be strictly interpreted. We are


witnessing continual deliberate attempts, by those who were elected, appointed
and hired to serve in positions of trust, to consolidate power and change
themselves from temporary governing individual trustees into a permanent
ruling class; to slowly, imperceptibly alter the correct order of things here in
America. The basic moral principle of the granted powers was formulated and
stated by the English philosopher John Locke (1632-1704). Locke was the most
important legitimate political theoretician in history. Samuel Eliot Morison, said
Locke was a person "with whom all reading Americans were familiar" (The
Oxford History of the American People by Samuel Eliot Morison (Oxford
University Press, New York; 1965), p. 271) at the time of the Revolution.
Another historian, C. Edward Merriam, had much more to say of Locke. In 1903,
he noted that: Locke, in particular was the authority to whom the Patriots paid
greatest deference. He was the most famous of seventeenth century democratic
theorists. Almost every writer seems to have been influenced by him, many
quoted his words, and the argument of others shows the unmistakable imprint
of his philosophy. The first great speech of Otis was wholly based upon Locke's
ideas; Samuel Adams, on the 'Rights of the Colonists as Men and as British
subjects' followed the same model. Many of the phrases of the Declaration of
Independence may be found in Locke's Treatise; there is hardly any important
writer of this time who does not openly refer to Locke, or tacitly follow the lead
he had taken. The argument in regard to the limitations upon Parliament was
taken from Locke's reflections on the 'supreme legislature' and the necessary
restrictions upon its authority. No one stated more strongly than did he the
basis for the doctrine that 'taxation without representation is tyranny.' No better
epitome of the Revolutionary theory could be found than in John Locke on civil
government. A History of American Political Theories by C. Edward Merriam
(1903). See also The Christian History of the Constitution of the United States
compiled by Verna M. Hall (Foundation For Christian Education, San Francisco,
CA; 1978), p. 51

Claim # 144. All government without the consent of the governed is the very
definition of slavery. Jonathan Swift, Drapier’s Letters (1724-25)

Claim # 145. Elections in the U.S. are nothing more than ratifications of
illegitimate power and approval of concentrated wealth. So long as we continue
to rationalize our vote by selecting the "lesser of two evils" vying for Upholder
of Elite Interests, we will be giving our tacit approval to and consent of the
continued human rights violations committed by the bipartisan power structure.
This business of selecting indentured servants of existing power is more
symbolic as a means of conquest of the popular will rather than that of
democracy. The wonderful advancements our country has made over the years
came as a result of popular struggle, not electoral politics. When we place our
political energy into elections, power and privilege always win while our
movements die. In our country, voting is the opium of the masses. When we
cast our ballots, blood continues to be shed on the battlefields of justice, not
only around the world as the U.S. continues its imperial crusade, but at home as
well in America's prisons, hospitals, factories, courts, ghettos, working
neighborhoods—in essence, on America's "main street." We cannot be, in good
moral conscience, participants in this deceitful and superficial process
legitimizing crimes of the powerful and an economic system erected for the
wealthy.

After all, is there not a sort of blood shed when the conscience is wounded?
Henry David Thoreau, "Resistance to Civil Government" (1849), also known as
"Civil Disobedience"

Claim # 146. 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 burnt
women. It is the function of speech to free men from the bondage of irrational
fears. 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, self-reliant 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 and fallacies, to avert the evil by the processes of education, the
remedy to be applied is more speech, not enforced silence. WHITNEY V.
CALIFORNIA, 274 U. S. 357 (1927)

Claim # 147. If there is any principle of the Constitution that more imperatively
calls for attachment than any other, it is the principle of free thought -- not free
thought for those who agree with us, but freedom for the thought that we hate.
UNITED STATES V. SCHWIMMER, 279 U. S. 644 (1929)

Claim # 148. The freedom of the Press is one of the greatest bulwarks of liberty,
and can never be restrained but by despotick Governments. The Virginia
Declaration of Rights, June 12, 1776

Claim # 149. The people shall not be deprived or abridged of their right to
speak, to write, or to publish their sentiments; and the freedom of the press, as
one of the great bulwarks of liberty, shall be inviolable. Annals of Congress 434
(1789)

Claim # 150. The freedom of speech and of the press, and the right of the
people peaceably to assemble and consult for their common good, and to apply
to the Government for redress of grievances, shall not be infringed. Id. at 731
(August 15, 1789)
Claim # 151. Congress shall make no law abridging the freedom of speech, or of
the press, or the right of the people peaceably to assemble and consult for their
common good, and to petition the government for a redress of grievances. The
Bill of Rights: A Documentary History 1148-49 (B. Schwartz ed. 1971)

Claim # 152. The news and entertainment we consume, and thus our thoughts
and opinions, are shaped not just by the media and entertainment corporations
but by governments, their agencies and the military-industrial complex. One of
the many by-products of news consultancy on the news industry has been the
decreased time spent by news programs on individual stories. This emphasis on
concision is a very subtle, but very real form of censorship in that only accepted
truths may be told. Although millions of Americans watch the evening news,
even more watch the entertainment programming that surrounds it; and those
who do watch the news are only getting a sound bite or two as a substitute for
any real knowledge or contextual understanding of the events described.
However, programs dedicated to bringing fictionalized accounts of real events
give considerably more. For those viewers, reality is tainted with a blurring of
fact and fiction.

In 1996, Congress passed the Telecommunications Reform Act, which amended


the Communications Act of 1934 and drastically reduced the restrictions placed
upon media owners as to just how much they could own. The 1996 Telecom Act
was a corrupt piece of work, being the product of the largest corporate lobbies
like the National Association of Broadcasters and corporations like News
Corporation and Viacom, all salivating at the prospect of rewriting the law to
provide them a larger slice of the action. The public played no role and it
received virtually no news media coverage, except in the business and trade
papers where it was covered as an issue of importance to owners and investors,
not citizens in a democracy. After World War II, Allied forces restricted media
concentration in occupied Germany and Japan because they noted that such
concentration promoted anti-democratic, even fascist, political cultures. In the
1950's, the majority of the American mass media (i.e. television stations, radio
stations, film studios, magazine publishers, newspaper publishers, book
publishers, advertising agencies, etc.) were owned by more than 1,500
corporations. By 1981, they were owned by less then fifty. Today, that number
is six; they are: AOL Time Warner, The Walt Disney Company, Bertelsmann,
Viacom, News Corporation, and Vivendi Universal – with Sony, Liberty Media
Corporation, and General Electric close behind (for a thorough listing of media
owners and what they own, see The Columbia Journalism Review at ). In our
current electoral process, "reaching audiences has become the substitute for
what used to be called garnering constituencies. Just as advertisers sell
products to audiences, political consultants market candidates to those same
audiences. In contemporary media-driven elections, programme, advertising,
and film audiences become targeted markets of voters. In the larger sense,
citizens are transmuted into consumers, connecting with a media product
instead of a political platform." According to The Alliance for Better Campaigns,
a non-profit co-chaired by Walter Cronkite, television broadcasters earned
around $771 million from political ads in 2000. During the first Gulf War, each
of the big three networks had profound financial ties to the war. ABC was
owned by Capitol Cities (which is now owned by The Walt Disney Company),
whose chair was on the board of directors of Texaco Oil. CBS, at the time
owned by Westinghouse, though now owned by Viacom, also owned the RAND
Corporation and the Honeywell Corporation, both of which were and are major
defense contractors and stood to make a great deal of money out of the war.

In his 1995 autobiography, Lawrence Grossman (president of PBS [1976-1984]


and NBC [1984-1988]) wrote, "The corporate culture came to dominate the
news business, treating news as a commodity or service no different from
'toasters, light bulbs, or jet engines,' to quote John F. Welch, chairman of
General Electric, which bought NBC in 1986. Welch insisted that NBC News
had no greater responsibility for public service than any of GE's more traditional
lines of business, regardless of news' special Constitutional standing and the
broadcast company's historic FCC license obligations…They [Welch and a good
many of his colleagues] had no qualms about doing whatever was necessary to
achieve that goal [the profit-making requirements of the NBC news
department], with little regard for journalistic standards, integrity, or taste."
(Grossman, 1995, p. 75)

Claim # 153. The ideas of the ruling class are in every epoch the ruling ideas:
the class which is the ruling material force of society is at the same time its
ruling intellectual force. The class which has the means of material production
at its disposal, has control at the same time over the means of mental
production, so that thereby, generally speaking, the ideas of those who lack the
means of mental production are subject to it. The ruling ideas are nothing more
than the ideal expression of the dominant material relationships, the dominant
material relationships grasped as ideas; hence of the relationships which make
the one class the ruling one, therefore, the ideas of its dominance. The
individuals composing the ruling class possess among other things
consciousness, and therefore think. Insofar, therefore, as they rule as a class
and determine the extent and compass of an epoch, it is self-evident that they
do this in its whole range, hence among other things rule also as thinkers, as
producers of ideas, and regulate the production and distribution of the ideas of
their age: thus their ideas are the ruling ideas of the epoch. Marx and Engels,
The German Ideology, 1845-46

This, in a nutshell, is 'the dominant ideology thesis'. Those who, in any age,
control the means of material production also control the means of mental
production and, through them, circulate ideas, values and opinions that are
broadly favorable to their continuing, material (i.e. economic and political)
dominance. Subordinate classes, who lack the means of production, are unable
to disseminate competing versions of social and political reality that might
challenge the rulings' ideas.
Claim # 154. Class conflict is the basis of politics and a free society.

Claim # 155. Today's elite loathes the nation it rules. It is instructive to look at
the way Europeans in the U.S. saw themselves a century ago. Americans of
European descent thought of themselves as part of a cultural and ethnic
heritage extending backward in time to the founding of the country. The Anglo-
Saxon heritage of the British Isles was at the center of this self-conception, but
Americans of German and Scandinavian descent also viewed themselves as part
of this ethnic and cultural heritage. They had a great deal of pride in their
accomplishments. They had conquered a vast territory and had achieved a high
degree of economic progress. They saw themselves as having created a
civilization with a strong moral fabric -- a country of farmers and small
businessmen who had developed into a world economic power. They believed
that their civilization was a product of their own unique ingenuity and skills, and
they believed that it would not survive if other peoples were allowed to play too
large a role in it. They saw themselves as exhibiting positive personality traits
such as courage in the face of adversity, self-reliance, inventiveness, originality,
and fair play -- the very virtues that allowed them to conquer the wilderness and
turn it into an advanced civilization. Americans at the turn of the 19th century
looked out on the world and saw their own society as superior to others. They
saw themselves and other European societies as reaping the rewards of political
and economic freedom while the rest of the world suffered as it had from time
immemorial -- the despotism of Asia, the barbarity and primitivism of Africa,
and the economic and political backwardness of Russia and Eastern Europe.
They saw themselves as Christian, and they thought of Christianity as an
essential part of the social fabric and their way of life. Christianity was seen as
basic to the moral foundations of the society, and any threat to Christianity was
seen as a threat to the society as a whole. When these people looked back on
their own childhood, they saw a simple, secure world of commonly accepted
values and behavior -- a world of cultural and ethnic homogeneity. They had a
strong sense of family pride and regional identification: They had deep roots in
the areas in which they grew up. They did not think of the U.S. as a Marxist hell
of war between the social classes. Instead they thought of it as a world of
harmony between the social classes in which people at the top of society earned
their positions but felt a certain sense of social obligation to the lower social
classes.

The early part of the 20th century was also the high water mark of Darwinism in
the social sciences. It was common at that time to think that there were
important differences between the races -- that races differed in intelligence and
in moral qualities. Not only did races differ, but they were in competition with
each other for supremacy. Such ideas were part of the furniture of intellectual
life. That world has vanished. The war to disestablish the specifically European
nature of the U.S. was fought on several fronts: The academic world of
information in the social sciences and humanities, the political world where
public policy on immigration and other ethnic issues is decided, and the mass
media where 'ways of seeing' are presented to the public. The new elite was
very different from the old elite it displaced. The difference was that the old
Protestant elite was not at war with the country it dominated. The old Protestant
elite was wealthier and better educated than the public at large, but they
approached life on basically the same terms. They saw themselves as Christians
and as Europeans, and they didn't see the need for radically changing the
society. Things are very different now. Since the 1960s a hostile, adversary elite
has emerged to dominate intellectual and political debate. It is an elite that
almost instinctively loathes the traditional institutions of European-American
culture: its religion, its customs, its manners, and its sexual attitudes.

Claim # 156. At no time in the history of the United States has the power of
dollars been as great as now. It is possible today, with dollars, to "steer" the
selection of the candidates of both the great parties for the office of President of
the United States. It is possible to repeat the operation in the selection of
candidates for the executive and legislative offices of every State and
municipality in the United States, and with a sufficient number of dollars to
"steer" the doings of the law-makers and law-enforcers of the national, State,
and municipal governments, and to "steer" a sufficient proportion of the court
decisions. Frenzied Finance by Thomas W. Lawson. New York: Ridgway-Thayer,
1905

In any country where talent and virtue produce no advancement, money will be
the national god. Its inhabitants will either have to possess money or make
others believe that they do. Wealth will be the highest virtue, poverty the
greatest vice. Those who have money will display it in every imaginable way. If
their ostentation does not exceed their fortune, all will be well. But if their
ostentation does exceed their fortune they will ruin themselves. In such a
country, the greatest fortunes will vanish in the twinkling of an eye. Those who
don’t have money will ruin themselves with vain efforts to conceal their poverty.
That is one kind of affluence: the outward sign of wealth for a small number, the
mask of poverty for the majority, and a source of corruption for all. Denis
Diderot (1713–1784), French philosopher. repr. In Selected Writings, ed. Lester
G. Crocker (1966). Observations on the Drawing Up of Laws (1921). Written
1774 for Catherine the Great

Claim # 157. THERE TODAY EXISTS UNCONTROLLED IN THE HANDS OF A


SET OF MEN A POWER TO MAKE DOLLARS FROM NOTHING. Frenzied
Finance by Thomas W. Lawson. New York: Ridgway-Thayer, 1905

Claim # 158. The centralization of banking and the deregulation of corporations,


beginning in the late nineteenth century, has led to our current era of
concentrated economic power with no democratic accountability.
Claim # 159. Wealth creates luxury and idleness and faction, and poverty adds
meanness and bad work to the faction.

Claim # 160. Liberty is to faction what air is to fire, an aliment without which it
instantly expires. But it could not be 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. Among the numerous advantages promised by a well-
constructed Union, none deserves to be more accurately developed than its
tendency to break and control the violence of faction. The friend of popular
governments never finds himself so much alarmed for their character and fate,
as when he contemplates their propensity to this dangerous vice. The instability,
injustice, and confusion introduced into the public councils have been the
mortal diseases under which popular governments have everywhere perished.
Federalist 10

Claim # 161. The most common and durable source of factions has been the
various and unequal distribution of property. Those who hold and those who are
without property have ever formed distinct interests in society. Those who are
creditors, and those who are debtors, fall under a like discrimination. A landed
interest, a manufacturing interest, a mercantile interest, a moneyed interest,
with many lesser interests, grow up of necessity in civilized nations, and divide
them into different classes, actuated by different sentiments and views. As is
true of factions in general, it is not possible to control the causes of these
particular factions. The diversity in the faculties of men from which the rights of
property originate is 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.
Federalist 10

James Madison was convinced from his comprehensive study of history and the
writing of philosophers that the greatest threat to popular government was the
"dangerous vice" that he called faction. His definition of the term occurs near
the beginning of his most famous work, Federalist 10: "By a faction I
understand a number of citizens, whether amounting to a majority or a 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." In the companion piece to Federalist 10,
Federalist 51, Madison elaborated: "Different interests necessarily exist in
different classes of citizens. If a majority be united by a common interest, the
rights of the minority will be insecure." In No. 10, Madison identified "two
methods of curing the mischief of faction: the one, by removing its causes; the
other, by controlling its effects." The former he discarded as inimical to liberty,
which, unfortunately, is to faction as "air is to fire." Drawing heavily on an essay
of David Hume, Madison then discussed the "latent causes" of faction, which he
found to be "sown in the nature of man": "A zeal for different opinions
concerning religion, concerning government, and many other points, as well of
speculation as of practice; an attachment to different leaders ambitiously
contending for pre-eminence and power; or to persons of other descriptions
whose fortunes have been interesting to the human passions...These factors
have "divided mankind into parties, inflamed them with mutual animosity, and
rendered them much more disposed to vex and oppress each other than to co-
operate for their common good." The words of the Federalist echoed the words
of Madison on the floor of theConstitutional Convention in Philadelphia. On
June 6, 1787, discussing whether the first chamber of the national legislature
should be elected by the state legislatures or by the people, Madison, speaking
in favor of the need to have at least one chamber elected directly by the people,
discussed the problem of factions in civilized societies, stating that their
presence therein is inevitable. Among the factions would be: "rich and poor,
debtors and creditors, the landed the manufacturing the commercial interests,
the inhabitants of this district or that district, the followers of this political
leader or that political leader, the disciples of this religious Sect or that religious
Sect." The importance of property in creating and nurturing faction was not to
be underestimated. Intrinsic to Madison's theory of faction is his concern about
the distribution of property, and it is his focus on property and the struggle
between the haves and the have-nots (although he never uses those terms) that
has been the major focus for scholars in the years since.

Claim # 162. All men are, by nature, free and equal, and have certain inherent
and inalienable rights.

Claim # 163. Every citizen has a right to keep and bear arms for the common
defence; and this right shall never be questioned.

Claim # 164. The people have the right to bear arms in defense of themselves
and of the State.

Claim # 165. All individuals are by nature equally free and independent and
have certain inalienable rights, among which are those of enjoying and
defending life and liberty; acquiring, possessing and protecting property and
reputation; pursuing and obtaining safety and happiness; and to keep and bear
arms for the defense of their person, family, property, and the state, and for
lawful hunting, recreational, and other lawful purposes, which shall not be
infringed.

Claim # 166. The people have the right to bear arms for their defense and
security; but standing armies, in time of peace, are dangerous to liberty, and
shall not be tolerated, and the military shall be in strict subordination to the civil
power.
Claim # 167. Mankind's oldest right is personal and communal defense. A
written constitution was deemed necessary because experience demonstrated
that the state cannot always be trusted to exercise power in a reasonable
manner. Gandhi's nonviolent methods would fail against the likes of a Nicolae
Ceausescu, Hitler, Stalin, or Pol Pot. The second amendment and its state
analogues guarantee that the state would not have a monopoly on arms. The
constitutions consistently promise to the people a right to bear arms.

Claim # 168. America's legacy of freedom is heavily predicated on the right of


individual citizens to keep and bear arms. Indeed, the Second Amendment is
arguably the most important constitutionally protected right of all, since it
serves to safeguard all others.

Claim # 169. We live not in a world of angels. The reign of Satan is not ended;
neither are we to expect to be defended by miracles. The pillar of the cloud
existed only in the wilderness. In the nonage of the Israelites. It protected them
in their retreat from Pharaoh, while they were destitute of the natural means of
defence, for they brought no arms from Egypt; but it neither fought their battles
nor shielded them from dangers afterwards. Thomas Paine, The Writings of
Thomas Paine, Vol. I (1774-1779) [1774]. The Writings of Thomas Paine,
Collected and Edited by Moncure Daniel Conway (New York: G.P. Putnam’s
Sons, 1894). Vol. 1

Claim # 170. Arms like laws discourage and keep the invader and the plunderer
in awe, and preserve order in the world as well as property. The balance of
power is the scale of peace. The same balance would be preserved were all the
world destitute of arms, for all would be alike; but since some will not, others
dare not lay them aside. And while a single nation refuses to lay them down, it
is proper that all should keep them up. Horrid mischief would ensue were one
half the world deprived of the use of them; for while avarice and ambition have
a place in the heart of man, the weak will become a prey to the strong. The
history of every age and nation establishes these truths, and facts need but little
arguments when they prove themselves. Thomas Paine, The Writings of Thomas
Paine, Vol. I (1774-1779) [1774].

Claim # 171. To take from the people the right of bearing arms, and put their
weapons of defence in the hands of a standing army, would be scarcely more
dangerous to their liberties, than to permit the Government to accumulate
immense amounts of treasure beyond the supplies necessary to its legitimate
wants. Such a treasure would doubtless be employed at some time, as it has
been in other countries, when opportunity tempted ambition. Andrew Jackson,
Journal of the Senate of the United States of America, 1789-1873. Tuesday,
December 6, 1836
Claim # 172. The Framers of the Constitution viewed the individual ownership
of firearms as the ultimate check on the power of the government because an
armed citizenry is in a better position to resist tyrannical behavior. Symbolically
and practically, firearms represents the relationship between the government
and the people, and the subordination of the former to the latter.

Claim # 173. To preserve liberty, it is essential that the whole body of the people
always possess arms. A militia, when properly formed, are in fact the people
themselves and include all men capable of bearing arms.

Claim # 174. A standing army, however necessary it be at some times, is always


dangerous to the liberties of the people. Sam Adams (1776), Letter to James
Warren, quoted in M. Jensen, The New Nation--A History of the United States
During the Confederation 1781-1789. 29 (1962)

Claim # 175. If circumstances should at any time oblige the government to form
an army of any magnitude, that army can never be formidable to the liberties of
the people, while there is a large body of citizens little if at all inferior to them in
discipline and the use of arms, who stand ready to defend their own rights and
those of their fellow citizens. Federalist 29

Claim # 176. The people have a right to bear arms for the defense of themselves
and their own states or the United States, or for the purpose of killing game;
and no law shall be passed for disarming the people or any of them, unless for
crimes committed, or real danger of public injury from individuals. The
Preamble declares that the Constitution is ordained and established by "the
People of the United States." The Second Amendment protects "the right of the
people to keep and bear Arms," and the Ninth and Tenth Amendments provide
that certain rights and powers are retained by and reserved to "the people."
UNITED STATES V. VERDUGO-URQUIDEZ, 494 U. S. 259 (1990)

Claim # 177. The First Law of Nature is that every man ought to endeavour
peace, as far as he has hope of obtaining it; and when he cannot obtain it, that
he may seek and use all helps and advantages of war. Thomas Hobbs,
"Leviathan", (Outlines the Laws of Nature), 1651

Claim # 178. Self defence is a primary law of nature, which no subsequent law
of society can abolish; this primæval principle, the immediate gift of the
Creator, obliges every one to remonstrate against the strides of ambition, and a
wanton lust of domination, and to resist the first approaches of tyranny, which
at this day threaten to sweep away the rights for which the brave sons of
America have fought with an heroism scarcely paralleled even in ancient
republicks. Elbridge Gerry, Observations On the new Constitution, and on the
Federal and State Conventions. By a Columbian Patriot. Sic transit gloria
Americana. Boston: 1788
Claim # 179. The right of self-defense is the first law of nature; in most
governments it has been the study of rulers to confine this right within the
narrowest limits possible. Whenever standing armies are kept up, and the right
of the people to keep and bear arms is, under any color or pretext whatsoever,
prohibited, liberty, if not already annihilated, is on the brink of destruction. St.
George Tucker, Blackstone's Commentaries (1803)

Claim # 180. The right of self-defense never ceases. It is among the most
sacred, and alike necessary to nations and to individuals. James Monroe, Nov.
16, 1818. Journal of the Senate of the United States of America, November 17th,
1818

Claim # 181. This great law of necessity -- of defense of self, of home, and of
country -- never was designed to be abrogated by any statute, or by any
constitution. Robert J. Walker. CONGRESSIONAL GLOBE: 27TH Cong 3d
Session 1843; EX PARTE MILLIGAN, 71 U. S. 2 (1866)

Claim # 182. A well-regulated Militia, composed of the body of the people,


trained to arms, is the proper, natural and safe defense of a free State; that
standing armies, in time of peace, should be avoided as dangerous to liberty;
and that, in all cases, the military should be under strict subordination to, and
governed by, the civil power. THE VIRGINIA DECLARATION OF RIGHTS, June
12, 1776

Claim # 183. The Second Amendment provides: "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." In interpreting this text, we are guided by the
principle that the Constitution was written to be understood by the voters; its
words and phrases were used in their normal and ordinary as distinguished
from technical meaning. Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that would not have been
known to ordinary citizens in the founding generation. DISTRICT OF
COLUMBIA V. HELLER, 554 U.S. ___, ___, 128 S.Ct. 2783, 2788 (2008) (quoting
UNITED STATES V. SPRAGUE, 282 U.S. 716, 731 (1931)); see also GIBBONS V.
OGDEN, 9 Wheat. 1, 188 (1824).

Claim # 184. The framers of the Constitution and the Bill of Rights believed that
a militia was necessary to the preservation of a free state. Second, it was
believed that securing an individual right to bear arms was necessary to
preserving the force of a militia. History showed that the way tyrants had
eliminated a militia was not by banning the militia but simply by taking away
the people's arms, enabling a select militia or standing army to suppress
political opponents. The Second Amendment thus preserved the militia through
its guarantee of the individual right to bear arms. The Second Amendment
could be rephrased to read, "Because a well regulated Militia is necessary to the
security of a free State, the right of the people to keep and bear Arms shall not
be infringed. See J. Tiffany, A Treatise on Government and Constitutional Law
§585, p. 394 (1867)

"Who are the militia? Are they not ourselves? Is it feared, then, that we shall
turn our arms each man against his own bosom. Congress have no power to
disarm the militia. Their swords, and every other terrible implement of the
soldier, are the birthright of an American. The unlimited power of the sword is
not in the hands of either the federal or state governments, but, where I trust in
God it will ever remain, in the hands of the people." Tenche Coxe, The
Pennsylvania Gazette, Feb. 20, 1788

"As civil rulers, not having their duty to the people duly before them, may
attempt to tyrannize, and as the military forces which must be occasionally
raised to defend our country, might pervert their power to the injury of their
fellow citizens, the people are confirmed by the article in their right to keep and
bear their private arms." Tenche Coxe, The Philadelphia Federal Gazette, June
18, 1789

"Whenever governments mean to invade the rights and liberties of the people,
they always attempt to destroy the militia, in order to raise an army upon their
ruins." Rep. Elbridge Gerry of Massachusetts , I Annals of Congress at 750,
August 17, 1789

"What, Sir, is the use of a militia? It is to prevent the establishment of a standing


army, the bane of liberty. Whenever Governments mean to invade the rights and
liberties of the people, they always attempt to destroy the militia, in order to
raise an army upon their ruins." Rep. Elbridge Gerry of Massachusetts , I Annals
of Congress at 750, August 17, 1789

"I ask you sir, who are the militia? They consist now of the whole people."
George Mason, Elliott, Debates, 425-426

Claim # 185. Standing armies in time of peace are inconsistent with the
principles of republican Governments, dangerous to the liberties of a free
people, and generally converted into destructive engines for establishing
despotism.

Claim # 186. The principle of civilian control embodies the idea that every
qualified citizen is responsible for the defense of the nation and the defense of
liberty, and will go to war, if necessary.

Combined with the idea that the military was to embody democratic principles
and encourage citizen participation, the only military force suitable to the
Founders was a citizen militia, which minimized divisions between officers and
the enlisted. The Founders thus reduced the regular army after the
Revolutionary War and relied on state militias to defend the western frontiers.
These cutbacks reflected American democracy's fear of military institutions and
of the military function, in part rooted in experiences with British military rule
during the colonial period. Throughout the 19th century and early 20th century,
these fears became embedded in American politics and society. America's deep
cultural heritage of anti-military feeling, along with its geographic isolation, has
thus produced a legacy of civilian control of the military. The Anglo-Saxon
cultural heritage, dominant at the time of the nation's founding, was another,
more general, reason for this aversion to the military and military institutions,
especially during peacetime. The British reaction to the Cromwellian period of
the 1640s, when the British army was used to suppress political opposition, was
a vivid memory in the 18th century. In addition, one of the major tensions
leading to the American Revolution was the stationing of British troops on
American soil after the French and Indian Wars (1754-63). The colonists
rejected such an intrusion based on their concept of their rights as Englishmen,
on the grounds that this would be unacceptable in Great Britain. This same
wary attitude was reflected throughout the Revolution itself. In order to get the
Continental Congress to authorize and provision the army, General George
Washington had to assure Congress he would not use that army to usurp its
authority. Thus, even in the heat of battle, Americans were suspicious of military
authority. Geography also played an important role in American attitudes
toward the military. Throughout the 19th century, broad oceans acted as a
buffer to the North American continent and America's neighbors did not present
a serious threat. With its isolation, the United States was virtually immune from
significant military threats from Europe and Asia. The abundant natural
resources of the United States also made it virtually independent from the rest
of the world.

Claim # 187. All citizens capable of bearing arms constitute the reserved
military force or reserve militia of the United States as well as of the states.
PRESSER V. ILLINOIS, 116 U. S. 252 (1886)

Claim # 188. An armed citizenry is the best means of guarding against the
possibility of tyranny that is inherent with standing armies. Today, these
principles are still applicable. The standing armies of King George III have been
replaced by an encroaching police state, which is also capable of tyranny.
Indeed, there is little material difference between the standing armies so
abhorrent to the Framers and many modern police forces. Over the past quarter
of a century, the U.S. military has supplied intelligence, equipment and training
to the police, spawning a culture of paramilitarism in some law enforcement
agencies. Moreover, there has been an increased deployment of military forces
domestically. This militarization would have alarmed the Framers, given their
concerns over the concentration of power that accompanied standing armies.
Such developments clearly illustrate that the ideology behind the Second
Amendment retains its significance and that the right to bear arms continues to
remain as a guarantor against the possibility of oppressive government
encroachment.
Claim # 189. The militia is the natural defence of a free country against sudden
foreign invasions, domestic insurrections, and domestic usurpations of power
by rulers. It is against sound policy for a free people to keep up large military
establishments and standing armies in time of peace, both from the enormous
expenses, with which they are attended, and the facile means, which they afford
to ambitious and unprincipled rulers, to subvert the government, or trample
upon the rights of the people. The right of the citizens to keep and bear arms
has justly been considered, as the palladium of the liberties of a republic; since
it offers a strong moral check against the usurpation and arbitrary power of
rulers; and will generally, even if these are successful in the first instance,
enable the people to resist and triumph over them. Commentaries on the
Constitution of the United States (1833; Book III at 746, § 1890)

Claim # 190. The right declared [the right to keep and bear arms] was meant to
be a strong moral check against the usurpation and arbitrary power of rulers,
and as a necessary and efficient means of regaining rights when temporarily
overturned by usurpation. Thomas M. Cooley: Principles of Constitutional Law
281 (2d ed. 1891)

Claim # 191. One of the ordinary modes, by which tyrants accomplish their
purposes without resistance, is, by disarming the people, and making it an
offence to keep arms, and by substituting a regular army in the stead of a resort
to the militia. The friends of a free government cannot be too watchful to
overcome the dangerous tendency of the public mind to sacrifice, for the sake of
mere private convenience, this powerful check upon the designs of ambitious
men. Familiar Exposition of the Constitution of the United States (1840)

Claim # 192. The firearm in the hands of the citizen symbolizes that we, the
people, are our own masters, and we do not exist at the whim of the
government. History has shown on numerous occasions that a disarmed society
almost always becomes an obedient and complacent society when faced with a
tyrannical government. Such fears were paramount in the minds of the Framers
of the Constitution, who had experienced, first-hand, the tyranny of King
George III and his attempts to disarm them. Indeed, such fears of government
tyranny have been present since time immemorial. Moreover, these fears were
by no means unique to the eighteenth century; nor have they been reduced with
the passage of time. Even as late as the twentieth century, more people were
killed at the hands of government than in all of the centuries that preceded it
combined. The right of individuals to bear arms still represents the ultimate
insurance policy against tyranny and gives meaning, rather than just rhetoric, to
the intentions of the Framers. Firearms in the hands of private individuals
affords Americans the confidence and security to enjoy their other rights, safe
in the knowledge that they are free from the risk of government oppression.
American citizens are better able to defend themselves, their families, and their
possessions with firearms than without. This is entirely within keeping with the
great American traditions and values of individualism and self-reliance.

Claim # 193. The project of disciplining all the militia of the United States is as
futile as it would be injurious, if it were capable of being carried into execution.
A tolerable expertness in military movements is a business that requires time
and practice. It is not a day, or even a week, that will suffice for the attainment
of it. To oblige the great body of the yeomanry, and of the other classes of the
citizens, to be under arms for the purpose of going through military exercises
and evolutions, as often as might be necessary to acquire the degree of
perfection which would entitle them to the character of a well-regulated militia,
would be a real grievance to the people, and a serious public inconvenience and
loss. It would form an annual deduction from the productive labor of the
country, to an amount which, calculating upon the present numbers of the
people, would not fall far short of the whole expense of the civil establishments
of all the States. To attempt a thing which would abridge the mass of labor and
industry to so considerable an extent, would be unwise: and the experiment, if
made, could not succeed, because it would not long be endured. Little more can
reasonably be aimed at, with respect to the people at large, than to have them
properly armed and equipped; and in order to see that this be not neglected, it
will be necessary to assemble them once or twice in the course of a year. But
though the scheme of disciplining the whole nation must be abandoned as
mischievous or impracticable; yet it is a matter of the utmost importance that a
well-digested plan should, as soon as possible, be adopted for the proper
establishment of the militia. The attention of the government ought particularly
to be directed to the formation of a select corps of moderate extent, upon such
principles as will really fit them for service in case of need. By thus
circumscribing the plan, it will be possible to have an excellent body of well-
trained militia, ready to take the field whenever the defense of the State shall
require it. This will not only lessen the call for military establishments, but if
circumstances should at any time oblige the government to form an army of any
magnitude that army can never be formidable to the liberties of the people while
there is a large body of citizens, little, if at all, inferior to them in discipline and
the use of arms, who stand ready to defend their own rights and those of their
fellow-citizens. Federalist 29

Claim # 194. Besides the advantage of being armed, which the Americans
possess over the people of almost every other nation, the existence of
subordinate governments, to which the people are attached, and by which the
militia officers are appointed, forms a barrier against the enterprises of
ambition. Federalist 46

Claim # 195. All power being originally inherent in, and consequently derived
from, the people; therefore all officers of government, whether legislative or
executive, are their trustees and servants, and at all times accountable to them.
Claim # 196. Government is, or ought to be, instituted for the common benefit,
protection and security of the people, nation or community; and not for the
particular emolument or advantage of any single man, family, or set of men,
who are a part only of that community. And that the community hath an
indubitable, unalienable, and indefeasible right to reform, alter or abolish
government in such manner as shall be by that community judged most
conducive to the public weal.

Claim # 197. An essential quality of sovereignty is legal omnipotence. Legal


theory establishes certain essential qualities inherent in the nature of
sovereignty. The first is legal omnipotence. This means that the sovereign is
legally omnipotent and absolute in relation to other legal institutions. It has the
power to determine exclusively its legal competence. Its powers are original,
not derivative. It is the sole judge of what it should do at any given time.

A more amplified definition of sovereignty is that of "a final power of final legal
adjustment of all legal issues."

Claim # 198. There is no such thing as a power of inherent sovereignty in the


government of the United States. It is a government of delegated powers,
supreme within its prescribed sphere, but powerless outside of it. In this
country, sovereignty resides in the people, and congress can exercise no power
which they have not, by their constitution, intrusted to it; all else is withheld.
JUILLIARD v. GREENMAN, 110 US 421 (1884)

Claim # 199. Sovereignty itself is, of course, not subject to law, for it is the
author and source of law; but, in our system, while sovereign powers are
delegated to the agencies of government, sovereignty itself remains with the
people, by whom and for whom all government exists and acts. And the law is
the definition and limitation of power. It is, indeed, quite true that there must
always be lodged somewhere, and in some person or body, the authority of final
decision, and in many cases of mere administration, the responsibility is purely
political, no appeal lying except to the ultimate tribunal of the public judgment,
exercised either in the pressure of opinion or by means of the suffrage. But the
fundamental rights to life, liberty, and the pursuit of happiness, considered as
individual possessions, are secured by those maxims of constitutional law which
are the monuments showing the victorious progress of the race in securing to
men the blessings of civilization under the reign of just and equal laws, so that,
in the famous language of the Massachusetts Bill of Rights, the government of
the commonwealth "may be a government of laws, and not of men." For the
very idea that one man may be compelled to hold his life, or the means of living,
or any material right essential to the enjoyment of life at the mere will of
another seems to be intolerable in any country where freedom prevails, as being
the essence of slavery itself. YICK WO V. HOPKINS, 118 U. S. 356 (1886)
Claim # 200. The preservation of liberty requires that the three great
departments of power [executive, legislative, and judiciary] should be separate
and distinct. Federalist 47

Claim # 201. Where powers are assumed which have not been delegated, a
nullification of the act is the rightful remedy. Thomas Jefferson: Draft Kentucky
Resolutions, 1798. ME 17:386

Claim # 202. The term "United States" is the collective name of the States
which are united together by and under the Constitution of the United States;
and, prior to the adoption of that Constitution, and subsequently to the
Declaration of Independence, it was the collective name of the thirteen States
which made that declaration, and which from the time of the adoption of the
Articles of Confederation to that of the adoption of the Constitution, were united
together by and under the former. Secondly. -- Since the adoption of the
Constitution, the term "United States" has been the name of a sovereign, and
that sovereign occupies a position analogous to that of the personal
sovereignties of most European countries. Thirdly. -- Since the treaty with
England of September 3, 1783, the term "United States" has often been used to
designate all territory over which the sovereignty of the United States extended.
Harvard Law Review. VOL. XII. January 25, 1899. No. 6

Claim # 203. The term "United States" may be used in any one of several
senses. It may be merely the name of a sovereign occupying the position
analogous to that of other sovereigns in the family of nations. It may designate
the territory over which the sovereignty of the United States extends, or it may
be the collective name of the states which are united by and under the
Constitution. HOOVEN & ALLISON CO. V. EVATT, 324 U. S. 652 (1945)

Claim # 204. The government of the United States proceeds directly from the
people; it is 'ordained and established' in the name of the people, and it is
declared to be ordained 'in order to form a more perfect union, establish justice,
insure domestic tranquillity, and secure the blessings of liberty' to themselves
and to their posterity. MCCULLOCH V. MARYLAND, 17 U. S. 316 (1819)

Claim # 205. Laws derived from the pure source of equality and justice must be
founded on the CONSENT of those, whose obedience they require. The
sovereign, when traced to his source, must be found in the man. CHISHOLM V.
GEORGIA, 2 U. S. 419 (1793)

Claim # 206. The question is not what power the federal government ought to
have, but what powers in fact have been given by the people. It hardly seems
necessary to reiterate that ours is a dual form of government; that in every state
there are two governments; the state and the United States. Each state has all
governmental powers save such as the people, by their Constitution, have
conferred upon the United States, denied to the states, or reserved to
themselves. The federal union is a government of delegated powers. It has only
such as are expressly conferred upon it and such as are reasonably to be
implied from those granted. In this respect we differ radically from nations
where all legislative power, without restriction or limitation, is vested in a
parliament or other legislative body subject to no restrictions except the
discretion of its members. UNITED STATES V. BUTLER, 297 U. S. 1 (1936)

Claim # 207. The governmental powers of the United States to the extent that
they are conferred or not withheld by the Constitution, are supreme and
paramount. The United States has no inherent sovereign powers, and no
legislative powers other than those conferred by the Constitution. 91 Corpus
Juris Secundum, United States, §4

Claim # 208. The Constitution created a Federal Government of limited powers.

Claim # 209. The Federal Government has nothing approaching a police power.
UNITED STATES V. LOPEZ, 514 U.S. 549 (1995)

Claim # 210. The federal government lacks the authority to legislate within the
borders of the sovereign states. As the Supreme Court has repeatedly stated, the
federal government is one of "limited" jurisdiction.

Claim # 211. The federal government, being a government "of the people", lacks
the delegated authority to "take" the property of the sovereign citizens without
their consent.

Claim # 212. The federal government’s power to tax comes from its status as a
"sovereign." That sovereignty extends only to things that it "creates" or exists
by its permission.

Claim # 213. Unless there exists a stipulation on the part of the citizen, it is the
citizen who is the "sovereign" and by right the government, being a "creation"
of the people that is the "subject".

Claim # 214. The basic theory of constitutional government is that the authority
for the central government to act comes from the people. The theory of
delegation is that the central government can only act upon proper authority
delegated to it from the people, and the people can only delegate to the
government authority that they themselves possess. The proper function of
government, then, is limited to those spheres of activity within which the
individual citizen has the right to act. It cannot claim the power to redistribute
money or property nor force reluctant citizens to perform acts of charity against
their will. No individual possesses the power to take another’s wealth or to force
others to do good, so no government has the right to do such things either. The
creature cannot exceed the creator. Ezra Taft Benson, The Constitution, A
Heavenly Banner, p. 9
The individual citizens delegate to the (government) their unquestionable right
to (lawful defence). (Government) now does for them only what they had a right
to do for themselves — nothing more. Suppose (individual) ‘A’ wants another
horse for his wagon. He doesn’t have the money to buy one, but since
(individual) ‘B’ has an extra horse, he decides that he is entitled to share in his
good fortune. Is he entitled to take his neighbor’s horse? Obviously not! If his
neighbor wishes to give it or lend it, that is another question. But so long as
(individual) ‘B’ wishes to keep his property, (individual) ‘A’ has no claim to it. If
‘A’ has no power to take ‘B’s property, can he delegate any such power to the
(government)? No! Even if everyone in the community desires that ‘B’ give his
extra horse to ‘A’, they have no right individually or collectively to force him to
do it. They cannot delegate a power they themselves do not have. This
important principle was clearly understood and explained by John Lock nearly
300 years ago; nobody can transfer to another more power than he has in
himself, and nobody has an absolute arbitrary power over himself, or over any
other, to destroy his own life, or take away the life or property of another. Ezra
T. Benson from an address, The Proper Role of Government; p. 130, 131

Claim # 215. The very idea that one man may be compelled to hold his life, or
the means of living, or any material right essential to the enjoyment of life, at
the mere will of another, seems to be intolerable in any country where freedom
prevails, as being the essence of slavery itself. YICK WO V. HOPKINS, 118 U. S.
356 (1886); BERRA V. UNITED STATES, 351 U. S. 131 (1956)

Claim # 216. Every man has a natural right to the fruits of his own labor, as
generally admitted, and no other person can rightfully deprive him of those
fruits, and appropriate them against his will. THE ANTELOPE, 23 U. S. 66
(1825)

Claim # 217. If the right does not exist in the sovereign, it cannot be delegated
or given to another. No man has the right to take another man’s property. And
since the right never existed, the question whether it has been surrendered
cannot arise. MCCULLOCH V. MARYLAND, 17 U. S. 316 (1819)

Claim # 218. There is no such thing in the theory of our governments, state and
national, as unlimited power in any of their branches. The executive, the
legislative, and the judicial departments are all of limited and defined powers.
There are limitations of such powers which arise out of the essential nature of
all free governments; implied reservations of individual rights, without which
the social compact could not exist, and which are respected by all governments
entitled to the name. LOAN ASSOCIATION V. TOPEKA, 87 U. S. 655 (1874)

The theory of our governments, state and national, is opposed to the deposit of
unlimited power anywhere. The executive, the legislative, and the judicial
branches of these governments are all of limited and defined powers. LOAN
ASSOCIATION V. TOPEKA, 87 U. S. 655 (1874)

Claim # 219. As with any entity or creation, the government is supreme and
unlimited WITHIN its ‘sphere’. Outside that ‘sphere’ there are limitations.

Claim # 220. The Constitution was, from its very origin, contemplated to be the
frame of a national government, of special and enumerated powers, and not of
general and unlimited powers. UNITED STATES V. BUTLER, 297 U. S. 1 (1936)

Claim # 221. The federal government is as sovereign within its sphere as the
states are within theirs. Its sphere is limited. Certain subjects only are
committed to it; but its power over those subjects is as full and complete as is
the power of the states over the subjects to which their sovereignty extends.
KOHL V. UNITED STATES, 91 U. S. 367 (1875)

Claim # 222. The States are separate sovereigns with respect to the Federal
Government. The States are no less sovereign with respect to each other than
they are with respect to the Federal Government. HEATH V. ALABAMA, 474 U.
S. 82 (1985)

Claim # 223. The States are equal to each other in power, dignity and authority,
each competent to exert that residuum of sovereignty not delegated to the
United States by the Constitution itself. Thus, each has the power, inherent in
any sovereign, independently to determine what shall be an offense against its
authority and to punish such offenses, and in doing so each is exercising its
own sovereignty, not that of the other. COYLE V. OKLAHOMA, 221 U.S. 559,
221 U. S. 567 (1911); SKIRIOTES V. FLORIDA, 313 U.S. 69, 313 U. S. 77 (1941);
HEATH V. ALABAMA, 474 U.S. 82 (1985)

Claim # 224. The governments of the states are sovereign within their territorial
limits and have exclusive jurisdiction over persons and property located therein.
72 American Jurisprudence 2d, Section 4

Claim # 225. An entire consolidation of the States into one complete national
sovereignty would imply an entire subordination of the parts; and whatever
powers might remain in them, would be altogether dependent on the general
will. The State governments clearly retain all the rights of sovereignty which are
not EXCLUSIVELY delegated to the United States. Federalist 32

Claim # 226. The capital and leading object of the Constitution was to leave with
the States all authorities which respected their own citizens only and to transfer
to the United States those which respected citizens of foreign or other States; to
make us several as to ourselves, but one as to all others. In the latter case, then,
constructions should lean to the general jurisdiction if the words will bear it,
and in favor of the States in the former if possible to be so construed. Thomas
Jefferson to William Johnson, 1823. ME 15:448

Claim # 227. The Constitution specifies and delineates the operations permitted
to the federal government and gives all the powers necessary to carry these into
execution. Whatever of these enumerated objects is proper for a law, Congress
may make the law; whatever is proper to be executed by way of a treaty, the
President and Senate may enter into the treaty; whatever is to be done by a
judicial sentence, the judges may pass the sentence. Thomas Jefferson to
Wilson Nicholas, 1803. ME 10:419

Claim # 228. Each State in the Union is sovereign as to all the powers reserved.
It must necessarily be so, because the United States have no claim to any
authority but such as the States have surrendered to them.

Claim # 229. New states, upon their admission into the Union, become invested
with equal rights and are subject only to such restrictions as are imposed upon
the states already admitted. Under this rule, which is referred to as the "equal
footing" doctrine, there can be no state of the Union whose sovereignty or
freedom of action is in any respect different from that of any other state,
including those states constituting the original 13 states. There can be no
restriction upon any state other than one prescribed upon all the states by the
Federal Constitution. Congress, in admitting a state, cannot restrict such state
by bargain. The state, by so contracting with Congress, is in no way bound by
such a contract, however irrevocable it is stated to be. It is said that subject to
the restraint and limitations of the Federal Constitution, the states have all the
sovereign powers of independent nations over all persons and things within
their respective territorial limits. 16 American Jurisprudence 2d, Constitutional
law, §281, §229

Claim # 230. The Constitution, in all its provisions, looks to an indestructible


Union, composed of indestructible States. Texas v. White, 74 U.S. 700 (1869)

Claim # 231. The perpetuity and indissolubility of the Union by no means


implies the loss of distinct and individual existence, or of the right of self-
government by the States. Without the States in union there could be no such
political body as the United States.

Claim # 232. The prime duty of the Government is to serve and protect the
people.

Claim # 233. Public officers must at all times be accountable to the people.

Claim # 234. The sovereignty of our people is not a kabalistic principle whose
dimensions are buried in mysticism. Its metes and bounds are familiar to the
framers of our Constitutions. They knew that in its broadest sense, sovereignty
is meant to be supreme, the jus summi imperu, the absolute right to govern.

Claim # 235. No governmental interest is more compelling than the security of


the Nation. APTHEKER V. SECRETARY OF STATE, 378 U. S. 500 (1964); HAIG
v. AGEE, 453 U.S. 280 (1981)

Claim # 236. The right of a government to maintain its existence -- self-


preservation -- is the most pervasive aspect of sovereignty. Security against
foreign danger is one of the primitive objects of civil society. To preserve its
independence, and give security against foreign aggression and encroachment,
is the highest duty of every nation, and to attain these ends nearly all other
considerations are to be subordinated. Federalist 41; THE CHINESE
EXCLUSION CASE, 130 U. S. 581 (1889); DENNIS V. UNITED STATES, 341 U.
S. 494 (1951)

Claim # 237. The jurisdiction of the nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no limitation not imposed by itself.
Any restriction upon it deriving validity from an external source would imply a
diminution of its sovereignty to the extent of the restriction and an investment
of that sovereignty to the same extent in that power which could impose such
restriction. All exceptions, therefore, to the full and complete power of a nation
within its own territories must be traced up to the consent of the nation itself.
They can flow from no other legitimate source. THE EXCHANGE V.
MCFADDON, 11 U. S. 116 (1812); THE CHINESE EXCLUSION CASE, 130 U. S.
581 (1889)

Claim # 238. While under our Constitution and form of government the great
mass of local matters is controlled by local authorities, the United States, in
their relation to foreign countries and their subjects or citizens, are one nation,
invested with powers which belong to independent nations, the exercise of
which can be invoked for the maintenance of its absolute independence and
security throughout its entire territory. The powers to declare war, make
treaties, suppress insurrection, repel invasion, regulate foreign commerce,
secure republican governments to the states, and admit subjects of other
nations to citizenship are all sovereign powers, restricted in their exercise only
by the Constitution itself and considerations of public policy and justice which
control, more or less, the conduct of all civilized nations. THE CHINESE
EXCLUSION CASE, 130 U. S. 581 (1889)

Claim # 239. The United States form a single nation. In war, we are one people.
In making peace we are one people. In all commercial regulations, we are one
and the same people. In many other respects, the American people are one; and
the government which is alone capable of controlling and managing their
interests in all these respects, is the government of the Union. It is their
government, and in that character they have no other. America has chosen to be
in many respects, and to many purposes, a nation; and for all these purposes
her government is complete; to all these objects, it is competent. The people
have declared, that in the exercise of all powers given for these objects, it is
supreme. It can then in affecting these objects legitimately control all
individuals or governments within the American territory. The constitution and
laws of a State, so far as they are repugnant to the Constitution and laws of the
United States, are absolutely void. These States are constituent parts of the
United States. They are members of one great empire -- for some purposes
sovereign, for some purposes subordinate. COHENS V. VIRGINIA, 19 U. S. 264
(1821); THE CHINESE EXCLUSION CASE, 130 U. S. 581 (1889)

Claim # 240. The United States is not only a government, but it is a national
government, and the only government in this country that has the character of
nationality. It is invested with power over all the foreign relations of the country,
war, peace, and negotiations and intercourse with other nations, all of which are
forbidden to the state governments. It has jurisdiction over all those general
subjects of legislation and sovereignty which affect the interests of the whole
people equally and alike, and which require uniformity of regulations and laws,
such as the coinage, weights, and measures, bankruptcies, the postal system,
patent and copyright laws, the public lands, and interstate commerce -- all
which subjects are expressly or impliedly prohibited to the state governments. It
has power to suppress insurrections as well as to repel invasions, and to
organize, arm, discipline, and call into service the militia of the whole country.
The President is charged with the duty and invested with the power to take care
that the laws be faithfully executed. The judiciary has jurisdiction to decide
controversies between the states, and between their respective citizens, as well
as questions of national concern, and the government is clothed with power to
guaranty to every state a republican government and to protect each of them
against invasion and domestic violence. The control of local matters being left to
local authorities, and national matters being entrusted to the government of the
union, the problem of free institutions existing over a widely extended country,
having different climates and varied interests, has been happily solved. For local
interests, the several states of the union exist, but for national purposes,
embracing our relations with foreign nations, we are but one people, one
nation, one power. LEGAL TENDER CASES, 79 U. S. 457 (1870); THE CHINESE
EXCLUSION CASE, 130 U. S. 581 (1889)

Claim # 241. The duty of citizens by force of arms to defend our government
against all enemies whenever necessity arises is a fundamental principle of the
Constitution. The common defense was one of the purposes for which the
people ordained and established the Constitution. It empowers Congress to
provide for such defense, to declare war, to raise and support armies, to
maintain a navy, to make rules for the government and regulation of the land
and naval forces, to provide for organizing, arming, and disciplining the militia,
and for calling it forth to execute the laws of the Union, suppress insurrections,
and repel invasions; it makes the President commander in chief of the army and
navy and of the militia of the several states when called into the service of the
United States; it declares that, 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. We need not refer to the numerous statutes that contemplate
defense of the United States, its Constitution and laws, by armed citizens.
UNITED STATES V. SCHWIMMER, 279 U. S. 644 (1929)

Claim # 242. The United States is a government of laws, and not of men.
MARBURY V. MADISON, 5 U. S. 137 (1803)

Claim # 243. Inferior laws not in pursuance of the Constitution are not the
supreme law of the land and are thus null and void.

Claim # 244. A law repugnant to the Constitution is void, and that courts, as well
as other departments, are bound by that instrument. MARBURY V. MADISON, 5
U. S. 137 (1803)

Claim # 245. Neither the legislative, executive, nor judicial departments of the
Government can lawfully exercise any authority beyond the limits marked out
by the Constitution. SCOTT V. SANDFORD, 60 U. S. 393 (1856)

Claim # 246. No man in this country is so high that he is above the law. No
officer of the law may set that law at defiance with impunity. All the officers of
the government, from the highest to the lowest, are creatures of the law, and
are bound to obey it. UNITED STATES V. LEE, 106 U. S. 196 (1882); BUTZ V.
ECONOMOU, 438 U. S. 478 (1978)

Claim # 247. Fraud in its elementary common law sense of deceit includes the
deliberate concealment of material information in a setting of fiduciary
obligation. A public official is a fiduciary toward the public, and if he
deliberately conceals material information from them, he is guilty of fraud.
MCNALLY V. UNITED STATES, 483 U. S. 350 (1987)

Claim # 248. Silence can only be equated with fraud when there is a legal and
moral duty to speak or when an inquiry left unanswered would be intentionally
misleading.

Claim # 249. Fraud and deceit may arise from silence where there is a duty to
speak the truth, as well as from speaking an untruth. Morrison v. Acton, 198
P.2d 590

Claim # 250. While fraud may be committed by the failure to speak, a duty to
speak must be imposed. Batty v. Arizona State Dental Board, 57 Ariz. 239, 112
P.2d 870
Claim # 251. Decency, security, and liberty alike demand that government
officials shall be subjected to the same rules of conduct that are commands to
the citizen. In a government of laws, existence of the government will be
imperiled if it fails to observe the law scrupulously. Our Government is the
potent, the omnipresent teacher. For good or for ill, it teaches the whole people
by its example. Crime is contagious. If the Government becomes a lawbreaker,
it breeds contempt for law; it invites every man to become a law unto himself; it
invites anarchy. OLMSTEAD V. UNITED STATES, 277 U. S. 438 (1928)

Claim # 252. The Constitution is the Supreme Law Of The Land. Article VI

Claim # 253. The Constitution is a divinely inspired document.

The United States Constitution was the first written constitution in the world. It
has served Americans well, enhancing freedom and prosperity during the
changed conditions of more than two hundred years. Frequently copied, it has
become the United States’ most important export. After two centuries, every
nation in the world except six have adopted written constitutions, 2 and the U.S.
Constitution was a model for all of them. No wonder modern revelation says
that God established the U.S. Constitution and that it should be maintained for
the rights and protection of all flesh, according to just and holy principles.

No constitution on earth has endured longer than this one. We seek, and usually
find, the answers to today’s questions in this document of yesterday. It was and
is a miracle. Both Washington and Madison referred to it as such. It is an
inspired document written under the guidance of the Lord. James Madison,
commonly called the father of the Constitution, recognized this inspiration and
gave the credit to “the guardianship and guidance of the Almighty Being whose
power regulates the destiny of nations, whose blessings have been so
conspicuously dispensed to this rising republic.

Claim # 254. The Constitution is itself in every rational sense, and to every
useful purpose, A BILL OF RIGHTS. Federalist 84

Many objections were taken to the constitution, not only on account of its actual
provisions, but also on account of its deficiencies and omissions. Among the
latter, none were proclaimed with more zeal, and pressed with more effect, than
the want of a bill of rights. This, it was said, was a fatal defect; and sufficient of
itself to bring on the ruin of the republic. To this objection several answers
were given; first, that the constitution did in fact contain many provisions in the
nature of a bill of rights, if the whole constitution was not in fact a bill of rights;
secondly, that a bill of rights was in its nature more adapted to a monarchy,
than to a government, professedly founded upon the will of the people, and
executed by their immediate representatives and agents; and, thirdly, that a
formal bill of rights, beyond what was contained in it, was wholly unnecessary,
and might even be dangerous. It was further added, that in truth the
constitution itself was, in every rational sense, and to every useful purpose, a
bill of rights for the Union. It specifies, and declares the political privileges of
the citizens in the structure and administration of the government. It defines
certain immunities and modes of proceeding, which relate to their personal,
private, and public rights and concerns. It confers on them the unalienable right
of electing their rulers; and prohibits any tyrannical measures, and vindictive
prosecutions. Justice Joseph Story, Commentaries on the Constitution of the
United States; with a Preliminary Review of the Constitutional History of the
Colonies and States, before the Adoption of the Constitution. Abridged by the
Author, for the Use of Colleges and High Schools (Boston: Hilliard, Gray, and
Company/Cambridge: Brown, Shattuck, and Co., 1833)

It is perhaps hard today to imagine the American Bill of Rights not being a key
part of the United States Constitution and not being one of that country's most
powerful means of social reform. But, from the point of view of institutional
design, that is not necessarily the case; nor has the Bill of Rights been a very
effective, and certainly not a socially progressive, part of the American system
of government for most of its political history. As is well known, the United
States Constitution was drafted without its famous Bill of Rights, the core of
which is the first block of ten amendments that were added in 1791 to appease
critics who, during the ratification debates, were apprehensive about the
potential tyranny of the national government. The Federalist view, as strongly
put forward by Hamilton, was that a bill of rights was unnecessary because 'the
Constitution is itself, in every rational sense, and to every useful purpose, A
BILL OF RIGHTS'. Alexander Hamilton, James Madison and John Jay, Federalist
Papers (New York: Mentor, 1961), No.84, p.515. In making this case and
answering the objection that the plan of the Philadelphia convention contained
no bill of rights, the Federalist used a variety of arguments, the most important
of which was drawn from the nature of popular government in which
sovereignty remains with the people rather than with the ruler or the state.
Since the historic purpose of a bill of rights was to assert the subject's
fundamental rights that had not been surrendered to kings, it had no application
to a democratic constitution: 'Here, in strictness, the people surrender nothing;
and as they retain everything they have no need of particular reservations'.
Hence, the concern of the Federalist writers was with the design of institutional
remedies, based on the division of powers and an ingenious system of checks
and balances, for correcting the pathological tendencies of unrestrained
democracy, majority faction and instability. See Vincent Ostrom, The Political
Theory of the Compound Republic, 2nd ed., Lincoln: University of Nebraska
Press, 1987, first published 1971.

The Anti-Federalists who attacked the constitution for having no bill of rights
were concerned at the extent of powers given to the national government. Some
preferred a weaker confederal form of government, while other more radical
democrats who thought that democracy was possible only in small republics
were uneasy with any central power at all. The Federalists' main defence for
grafting a reasonably strong national government on to the old confederal form
of strong member states was based squarely on the division of powers of which
federalism was a key part. The potential tyranny of the centre would be checked
by the division of powers among the branches of central government as in a
unitary republican state, but as well by the institutional vigilance of state
governments. 'The executive and legislative bodies of each State will be so
many sentinels over the persons employed in every department of the national
administration.' Federalist Papers, No.84, p.516. Federalism gave republican
government the 'double security' of a 'compound republic', as Madison
explained in Federalist No.51: 'In a single republic, all the power surrendered
by the people is submitted to the administration of a single government; and the
usurptions are guarded against by a division of the government into distinct and
separate departments. In the compound republic of America, the power
surrendered by the people is first divided between two distinct governments,
and then the portion allotted to each subdivided among distinct and separate
departments. Hence a double security arises to the rights of the people. The
different governments will control each other, at the same time that each will be
controlled by itself.' Ibid., No.51, p.323.

In short, a bill of rights was not an integral part of the original American
constitutional design but was added to appease critics of strong central
government and facilitate ratification. It was the division of powers among
multiple governments and branches of government and the expectation that
these would compete with and check one another that was the basis for
controlling tyrannical government and thereby protecting individual rights of
citizens. Regarding effectiveness, the American Bill of Rights was not of major
significance for most of America's more than two hundred years of political
history. And certainly for most of that time it was not the progressive reformist
instrument of national government that it became in the 1950s and 1960s. That
was partly because the states had their own bills of rights and systems of
common law, and the national Bill of Rights applied only to national government
until its application was progressively extended to the states by the Supreme
Court in the twentieth century. It was also because for long periods of time the
American Supreme Court was dominated by political and social conservatives.
The point can be illustrated graphically with two examples: first, the existence
of slavery in the Southern states until the Civil War; and second, the persistence
of extensive public discrimination against blacks until the anti-discrimination
cases of the 1950s. Thus, only for a relatively short period of modern history has
the American Bill of Rights been a progressive instrument of national reform.

Claim # 255. The Constitution is supreme law because it was ratified by the
sovereign people in convention, and it alone authorizes and limits governmental
action. As the Constitution is legislated by the most authoritative body within
the political system, all other legislation is inferior to that law and void if
contradictory to it.
The writing of the Constitution allowed the framers to gather the people into
convention and to place a document before them that could be examined,
debated, and understood. With a written text, the representatives of the people
could be gathered to deliberate and to express their will in a durable form that
could be promulgated and called to the attention of government officials and
judges. Judges are not left to wonder at how authoritative a particular
constitutional argument might be or what the Constitution might require. All
legitimate constitutional arguments derive from a single source: the embodied
will of the sovereign people. The essential character of the Constitution is that it
is drafted and ratified by those authorized to speak for “we the people.” Nothing
could be more ridiculous, Iredell concluded, than for the representatives of a
people solemnly assembled to form a Constitution, to set down a number of
political dogmas, which might or might not be regarded. That Constitution must
stand and remain in force until by a similar appointment of deputies specially
appointed for the same important purpose; and alterations should be with equal
solemnity and deliberation made. Iredell, Life and Correspondence, vol. 2, p.
174. John Marshall agreed, for this was the basis, on which the whole American
fabric has been erected. The very idea of a written constitution and the process
by which it was created would be absurd if it were not unchangeable by
ordinary means. Marbury v. Madison, at 177. The Constitution is certain and
fixed, and it can, as Patterson observed, be revoked or altered only by the
authority that made it. VanHorne’s Lessee v. Dorrance, at 308

Claim # 256. The Constitution enshrines popular, not legislative, sovereignty. It


creates a republic with a limited government, not simply a majoritarian
democracy. The goal of a jurisprudence of originalism is to get the Constitution
right, to preserve the Constitution inviolable. It denies that judges are
freewheeling arbiters of social justice, but it also denies that they are mere
window dressing.

As Chief Justice William Rehnquist once wrote, “The goal of constitutional


adjudication is to hold true the balance between that which the Constitution
puts beyond the reach of the democratic process and that which it does not.”
Webster v. Reproductive Health Services, 492 U.S. 490, 521 (1989). The
jurisprudence of originalism seeks to hold true that balance, whether that
requires upholding the application of a statute in a particular case or striking it
down.

Claim # 257. The Constitution for the United States of America is still the
enforceable, and invincible, Supreme Law of the Land. Our Declaration of
Independence and the Constitution for the United States of America are among
the most precise and powerful documents ever written by man. Each was
written at a time when armies marched, ships sailed, and kingdoms stood or fell
at the stroke of a pen. Each was written by the most astute, precise, and learned
English writers ever to articulate the concept of man’s freedom. This was a time
when an error in language would have no recall, and could result in disaster for
all concerned. The authors of the Constitution used the fundamental laws of the
English language to precisely shape the declaratory and restrictive clauses
found within the Constitution for the United States of America. Therefore,
ignorance of these laws, so plainly stated, cannot be pled by agents of
government at any level.

Claim # 258. The Senators and Representatives, and the members of the several
State legislatures, and all executive and judicial officers, both of the United
States and the several States, are bound by oath or affirmation to support this
Constitution. Federalist 44

Claim # 259. The Constitution is in strictness neither a national nor a federal


constitution, but a composition of both. In its foundation it is federal, not
national; in the sources from which the ordinary powers of the government are
drawn, it is partly federal, and partly national; in the operation of those powers,
it is national, not federal; in the extent of them, it is federal, not national; and
finally, in the authoritative mode of introducing amendments, it is neither
wholly federal, nor wholly national. Were it wholly national, the supreme and
ultimate authority would reside in a majority of the people of the union; and this
authority would be competent at all times, like that of a majority of every
national society, to alter or abolish its established government. Were it wholly
federal on the other hand, the concurrence of each state in the union would be
essential to every alteration that would be binding on all. The mode provided by
the plan of the convention is not founded on either of these principles. In
requiring more than a majority, and particularly in computing the proportion by
states, not by citizens, it departs from the national, and advances towards the
federal character; in rendering the concurrence of less than the whole number
of states sufficient, it loses again the federal, and partakes of the national
character. Federalist 39

Claim # 260. Our peculiar security is in the possession of a written Constitution.


Let us not make it a blank paper by construction. Thomas Jefferson to Wilson
Nicholas, 1803. ME 10:419

Claim # 261. Where a constitution, like ours, wears a mixed aspect of monarchy
and republicanism, its citizens will naturally divide into two classes of
sentiment, according as their tone of body or mind, their habits, connections
and callings, induce them to wish to strengthen either the monarchical or the
republican features of the constitution. Some will consider it as an elective
monarchy, which had better be made hereditary, and therefore endeavor to lead
towards that all the forms and principles of its administration. Others will view it
as an energetic republic, turning in all its points on the pivot of free and
frequent elections. Thomas Jefferson to James Sullivan, 1797. ME 9:377
Claim # 262. The Constitution to which we are all attached was meant to be
republican, and we believe to be republican according to every candid
interpretation. Thomas Jefferson to Robert R. Livingston, 1800. ME 10:177

The purpose of a written constitution is entirely defeated if, in interpreting it as


a legal document, its provisions are manipulated and worked around so that the
document means whatever the manipulators wish. Jefferson recognized this
danger and spoke out constantly for careful adherence to the Constitution as
written, with changes to be made by amendment, not by tortured and twisted
interpretations of the text.

Claim # 263. The basic purpose of a written constitution has a twofold aspect,
first the securing to the people of certain unchangeable rights and remedies,
and second, the curtailment of unrestricted governmental activity within certain
defined fields.

Claim # 264. The constitution ought to receive not a strict and narrow, but a
liberal and reasonable construction. In re Broadus, 73 Va. (32 Gratt.) 779, 786
(1880).

Claim # 265. The Constitution is an instrument of government, made and


adopted by the people for practical purposes connected with the common
business and wants of human life, and to achieve that end, every word in it
should be expounded in its plain, obvious, common sense. Farinholt v.
Luckhard, 90 Va. 936, 937, 21 S.E. 817, 817 (1886)

Claim # 266. The Constitution must not be construed with such rigor and
inflexibility that we not only violate accepted principles of interpretation, but we
destroy the rights which the Constitution intended to guard. Moore v. Pullem,
150 Va. 174, 194, 142 S.E. 415, 421 (1928)

Claim # 267. Constitutional rights are to be construed broadly. ULLMANN V.


UNITED STATES, 350 U. S. 422 (1956)

“This constitutional protection must not be interpreted in a hostile or niggardly


spirit.” Ullmann v. United States, 350 U.S. 422, 426 (1956). “To view a
particular provision of the Bill of Rights with disfavor inevitably results in a
constricted application of it. This is to disrespect the Constitution.” Id. at 428-29

Claim # 268. A fundamental right is one explicitly or implicitly guaranteed by


the Constitution. Ballard v. Commonwealth, 228 Va. 213, 216, 321 S.E.2d 284
(1984), citing San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1,
33-34 (1973)

Claim # 269. In the absence of a contrary definition, the words in a statute are
presumed to have their usual and ordinary meaning. Anderson v.
Commonwealth, 182 Va. 560, 565, 29 S.E.2d 838, 840 (1944). "In the absence of
a statutory definition, words in statutes are to be given their ordinary meaning
within the statutory context." Grant v. Commonwealth, 223 Va. 680 (1982).

Claim # 270. While in the construction of statutes the constant endeavor of the
courts is to ascertain and give effect to the intention of the legislature, that
intention must be gathered from the words used, unless a literal construction
would involve a manifest absurdity. The Court has stated the related principle
that the plain, obvious, and rational meaning of a statute is always to be
preferred to any curious, narrow, or strained construction. Statutes should not
be interpreted in ways that produce absurd or irrational consequences. Op Att'y
Gen. No. 01-032, March, (2001) Citing: Watkins v. Hall, 161 Va. 924, 930, 172
S.E. 445, 447 (1934), Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d
337, 338 (1983), McFadden v. McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449
(1952)

Claim # 271. A statute must be construed with reference to its subject matter,
the object sought to be attained, and the legislative purpose in enacting it; the
provisions should receive a construction that will render it harmonious with that
purpose rather than one which will defeat it. Stanley v. Tomlin, 143 Va. 187,
195, 129 S.E. 379, 382 (1925)

Claim # 272. If the language of a statute is plain and unambiguous, and its
meaning perfectly clear and definite, effect must be given to it. It is unnecessary
to resort to any rules of statutory construction when the language of a statute is
unambiguous. In those situations, the statute's plain meaning and intent govern.
Temple v. City of Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944)

Claim # 273. Language is ambiguous if it admits of being understood in more


than one way, refers to two or more things simultaneously, is difficult to
comprehend, is of doubtful import, or lacks clearness and definiteness. Gillespie
v. Commonwealth, 272 Va. 753, 758, 636 S.E.2d 430, 432 (2006)

Claim # 274. A constitution should not receive too narrow or literal an


interpretation, but rather the meaning given it should be applied in such a
manner as to meet new or changed conditions as they arise. Flaska v. State, 51
N.M. 13, 22, 177 P.2d 174 (1947)

Claim # 275. Where words are used in a constitutional provision, which have
both a restricted and a general meaning, the general meaning must prevail over
the restricted meaning, unless the context of the provision clearly indicates that
the limited sense is intended. Gaiser v. Buck, 203 Ind. 9, 179 N.E. 1, 4 (1931)
(citing, inter alia, 1 Story, Const. § 451); Flaska v. State, 51 N.M. 13, 177 P.2d
174 (1947)
The historical evolution of a constitutional right must be considered in its
interpretation.

Claim # 276. The purpose and object sought to be attained by the framers of the
Constitution is to be looked for, and the will and intent of the people who
ratified it is to be made effective. Dean v. Paolicelli, 194 Va. 219, 226, 72 S.E.2d
506, 510-11, (1952)

Claim # 277. The Constitution is a restraint upon government, purposely


provided and declared upon consideration of all the consequences of what it
prohibits and permits, making the restraints upon government the rights of the
governed. And this careful adjustment of power and rights makes the
Constitution what it was intended to be and is, a real charter of liberty, receiving
and deserving the praise that has been given it as "the most wonderful work
ever struck off at any given time by the brain and purpose of man." BLOCK V.
HIRSCH, 256 U. S. 135 (1921)

Claim # 278. Constitutions are not primarily designed to protect majorities, who
are usually able to protect themselves, but rather to preserve and protect the
rights of individuals and minorities against arbitrary action of those in authority.

Claim # 279. The constitution is the organization of offices in a state, and


determines what is to be the governing body, and what is the end of each
community.

Claim # 280. A constitution is the supreme law of the land. This is due to the
fact that the government itself is both created and regulated by the constitution;
governments create laws that govern the people, but a constitution directs the
government. The United States Constitution is the supreme law because it is by
the constitution’s standard that all other laws are enacted. Every other law of
the state is measured by what the constitution lays forth. The Constitution
determines the legality of law and it is by constitutional power that a law can be
overruled.

Claim # 281. The Constitution of the United States is a law for rulers and people,
equally in war and in peace, and covers with the shield of its protection all
classes of men, at all times, and under all circumstances. No doctrine, involving
more pernicious consequences, was ever invented by the wit of man than that
any of its provisions can be suspended during any of the great exigencies of
government. Such a doctrine leads directly to anarchy or despotism. EX PARTE
MILLIGAN (1866), 71 U.S. 2; 18 L. Ed. 281; 1866 U.S. LEXIS 861; 4 Wall;
HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U. S. 398 (1934)

Claim # 282. There is no law in the land supreme over the constitutional law.
There is no government but constitutional government; and hence all bayonet-
made, all Congress-imposed constitutions are of no weight, authority, or
sanction, save that enforced by arms, an element of power unknown to
Americans in peace, and never recognized but as it acts in and under the
supreme civil law, the Constitution, and the statutes enacted in pursuance
thereof. Journal of the House of Representatives of the United States,
WEDNESDAY, June 24, 1868.

Claim # 283. As the object of the first eight amendments to the Constitution was
to incorporate into the fundamental law of the land certain principles of natural
justice which had become permanently fixed in the jurisprudence of the mother
country, the construction given to those principles by the English courts is
cogent evidence of what they were designed to secure and of the limitations
that should be put upon them. This is but another application of the familiar rule
that where one State adopts the laws of another, it is also presumed to adopt the
known and settled construction of those laws by the courts of the State from
which they are taken. BROWN V. WALKER, 161 U. S. 591 (1896)

Claim # 284. The Sixth Article of the Constitution declares that "this
Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, anything in the Constitution or
Laws of any State to the Contrary notwithstanding."

Claim # 285. The freedom of thought, of speech, and of the press; the right to
bear arms; exemption from military dictation; security of the person and of the
home; the right to speedy and public trial by jury; protection against oppressive
bail and cruel punishment, are, together with exemption from self-crimination,
the essential and inseparable features of English liberty. Each one of these
features had been involved in the struggle above referred to in England within
the century and a half immediately preceding the adoption of the Constitution,
and the contests were fresh in the memories and traditions of the people at that
time. BROWN V. WALKER, 161 U. S. 591 (1896)

Claim # 286. The 8th section of the 1st article of the Constitution authorizes
Congress "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." To this clause there seems to be no limitation, so far as it
applies to the extension of the powers vested by the Constitution; but even this
clause gives no legislative authority to Congress to carry into effect any power
not expressly vested by the Constitution. In the Constitution, which is the
supreme law of the land, provision is made that the members of the legislatures
of the several states, and all executive and judicial officers thereof, shall be
bound by oath to support the Constitution: But there is no provision for
empowering the government of the United States, or any officer or department
thereof, to pass a law obligatory on the members of the legislatures of the
several states, and other officers thereof, to take this oath. This is made their
duty already by the Constitution, and no such law of Congress can add force to
the Obligation; but, on the other hand, if it is admitted that such a law is
necessary, it tends to weaken the Constitution, which requires such aid: neither
is any law, other than to prescribe the form of the oath, necessary or proper to
carry this part of the Constitution into effect; for the oath required by the
Constitution, being a necessary qualification for the state officers mentioned,
cannot be dispensed with by any authority whatever, other than the people, and
the judicial power of the United States, extending to all cases arising in law or
equity under this Constitution. The judges of the United States, who are bound
to support the Constitution, may, in all cases within their jurisdiction, annul the
official acts of state officers, and even the acts of the members of the state
legislatures, if such members and officers were disqualified to do or pass such
acts, by neglecting or refusing to take this oath. The Debates in the Several
State Conventions on the Adoption of the Federal Constitution [Elliot's Debates,
Volume 4] Oath.--On a Bill prescribing the Oath to support the Constitution.

Claim # 287. If the Constitution is the supreme law of the land, every part of it
must partake of this supremacy; consequently, every general declaration it
contains is the supreme law. But then these general declarations cannot be
carried into effect without particular regulations adapted to the circumstances:
these particular regulations are to be made by Congress, who, by the
Constitution, have power to make all laws necessary or proper to carry the
declarations of the Constitution into effect. The Constitution likewise declares
that the members of the state legislatures, and all officers, executive and
judicial, shall take an oath to support the Constitution. This declaration is
general, and it lies with the supreme legislature to detail and regulate it. The
Debates in the Several State Conventions on the Adoption of the Federal
Constitution [Elliot's Debates, Volume 4] Oath.--On a Bill prescribing the Oath
to support the Constitution.

Claim # 288. The Constitution and laws of the United States "are the supreme
law of the land," anything in the Constitution or laws of any State to the
contrary, notwithstanding." Their supremacy is thus declared in express terms:
"Whatever conflicts therewith has no operative or obligatory force. Allegiance to
the United States, and loyalty to the United States Constitution and laws, are the
paramount duty of every citizen. Within their legitimate sphere, they command
the obedience of all, and no State Constitution or statute can absolve any one
therefrom. As it is both the right and duty of every citizen to become fully
informed upon all governmental affairs, so as to discharge his many political
obligations intelligently at the ballot-box, and in other legitimate ways; and the
freedom of the press and of speech are guaranteed to him for that as well as
other essential purposes; and as the right of the people peaceably to assemble
and petition for the redress of grievances, and to keep and bear arms, cannot be
lawfully abridged or infringed. CHARGE TO THE GRAND JURY BY THE COURT,
United States Circuit Court, DISTRICT OF MISSOURI, SPECIAL JULY TERM,
1861. JULY 10, 1861

Claim # 289. 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. George Washington, Farewell Address,
19 Sept. 1796. Writings 35:217--36

Claim # 290. Our priceless Constitution secures our God-given rights by keeping
America safely anchored within the rule of law. We must not drift from its
timeless principles. THE CONSTITUTION OF THE UNITED STATES WAS GIVEN TO US, BUT IT WAS PAID
FOR BY MEN OF GREAT WILL AND GOOD PRINCIPAL, WITH THEIR SUFFERING, THEIR BLOOD, AND LITERALLY
THEIR LIVES, AND THE LIVES OF THEIR LOVED ONES. ALL THAT IS REQUIRED OF US TODAY IS TO LIVE UNDER
IT, RESPECT IT, SUPPORT IT, AND ENJOY ITS FREEDOMS.

Claim # 291. In our efforts to preserve "the unity of government which


constitutes us one people," by restoring the States to the condition which they
held prior to the rebellion, we should be cautious, lest, having rescued our
nation from perils of threatened disintegration, we resort to consolidation, and
in the end absolute despotism, as a remedy for the recurrence of similar
troubles. The war having terminated, and with it all occasion for the exercise of
powers of doubtful constitutionality, we should hasten to bring legislation within
the boundaries prescribed by the Constitution, and to return to the ancient
landmarks established by our fathers for the guidance of succeeding
generations. "The Constitution which at any time exists, until changed by an
explicit and authentic act of the whole people, is sacredly obligatory upon all."
"If, in the opinion of the people, the distribution or modification of the
constitutional Power be in any particular, wrong, let it be corrected by an
amendment in the way in which the Constitution designates. But let there be no
change by usurpation: for" "it is the customary weapon by which free
governments are destroyed." Washington spoke these words to his countrymen,
when, followed by their love and gratitude, he voluntarily retired from the cares
of public life. "To keep in all things within the pale of our constitutional powers,
and cherish the federal Union as the only rock of safety," were prescribed by
Jefferson as rules of action to endear to his "countrymen the true principles of
their Constitution, and promote a union of sentiment and action equally
auspicious to their happiness and safety." Jackson held that the action of the
general government should always be strictly confined to the sphere of its
appropriate duties, and justly and forcibly urged that our government is not to
be maintained nor our Union preserved "by invasions of the rights and powers
of the several States. In thus attempting to make our general government
strong, we make it weak. Its true strength consists in leaving individuals and
States as much as possible to themselves; in making itself felt, not in its power,
but in its beneficence; not in its control, but in its protection; not in binding the
States more closely to the centre, but leaving each to move unobstructed in its
proper constitutional orbit." These are the teachings of men whose deeds and
services have made them illustrious, and who, long since withdrawn from the
scenes of life, have left to their country the rich legacy of their example, their
wisdom, and their patriotism. Drawing fresh inspiration from their lessons, let
us emulate them in love of country and respect for the Constitution and the
laws. Andrew Johnson, Dec. 3, 1866 message to U.S. House and Senate

Claim # 292. The Constitution itself is, in every real sense, a law -- the
lawmakers being the people themselves, in whom, under our system, all
political power and sovereignty primarily resides, and through whom such
power and sovereignty primarily speaks. It is by that law, and not otherwise,
that the legislative, executive, and judicial agencies which it created exercise
such political authority as they have been permitted to possess. The
Constitution speaks for itself in terms so plain that to misunderstand their
import is not rationally possible. "We the people of the United States," it says,
"do ordain and establish this Constitution . . ." Ordain and establish! These are
definite words of enactment, and, without more, would stamp what follows with
the dignity and character of law. The framers of the Constitution, however, were
not content to let the matter rest here, but provided explicitly -- "This
Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; . . . shall be the supreme Law of the Land; . . ." The
supremacy of the Constitution as law is thus declared without qualification. That
supremacy is absolute; the supremacy of a statute enacted by Congress is not
absolute, but conditioned upon its being made in pursuance of the Constitution.
And a judicial tribunal, clothed by that instrument with complete judicial power,
and, therefore, by the very nature of the power, required to ascertain and apply
the law to the facts in every case or proceeding properly brought for
adjudication, must apply the supreme law and reject the inferior statute
whenever the two conflict. In the discharge of that duty, the opinion of the
lawmakers that a statute passed by them is valid must be given great weight,
but their opinion, or the court's opinion, that the statute will prove greatly or
generally beneficial is wholly irrelevant to the inquiry. CARTER V. CARTER
COAL CO., 298 U. S. 238 (1936)

Claim # 293. The Constitution ought to be the standard of construction for the
laws, and that wherever there is an evident opposition, the laws ought to give
place to the Constitution. Federalist 81

Claim # 294. Any laws, statutes, ordinances, regulations, rules, and procedures
contrary to the U.S. Constitution, as written by its framers, are null and void.

Claim # 295. If a legislative act oppugns a constitutional principle, the former


must give way, and be rejected on the score of repugnance. In such a case it
will be the duty of the Court to adhere to the Constitution, and to declare the act
null and void. The Constitution is the basis of legislative authority; it lies at the
foundation of all law, and is a rule and commission by which both Legislators
and Judges are to proceed. VANHORNE'S LESSEE v. DORRANCE, 2 U.S. 304
(1795)

Claim # 296. No state legislator or executive or judicial officer can war against
the Constitution without violating his solemn oath to support it. COOPER V.
AARON, 358 U. S. 1 (1958)

Claim # 297. An unconstitutional act is not a law; it confers no rights; it imposes


no duties; it affords no protection; it creates no office; it is in legal
contemplation as inoperative as though it had never been passed. NORTON V.
SHELBY COUNTY, 118 U. S. 425 (1886)

Claim # 298. 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. MARBURY V. MADISON, 5 U. S. 137
(1803)

Claim # 299. The Constitution is a superior, paramount law, unchangeable by


ordinary means. The idea that an unconstitutional act of legislature can bind the
courts and oblige them to give it effect is an absurdity too gross to be insisted
on. Congressional legislation contrary to the Federal Constitution is null and
void and cannot be enforced by a court of law.

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. Marbury V.
Madison, 5 U. S. 137 (1803)

Claim # 300. The legislatures are the creatures of the Constitution. They owe
their existence to the Constitution. They derive their powers from the
Constitution. It is their commission, and therefore all their acts must be
conformable to it or else they will be void. LUTHER V. BORDEN, 48 U. S. 1
(1849)

Claim # 301. The U.S. Constitution is the supreme law of the land, and any
statute, to be valid, must be in agreement. It is impossible for both the
Constitution and a law violating it to be valid; one must prevail. Am Jur Vol 16
§177
Claim # 302. An unconstitutional act of the Legislature protects no one. All
persons are presumed to know the law. Ignorance of the law excuses no one; if
any person acts under an unconstitutional statute, he does so at his peril and
must take the consequences. Am Jur 16 §178

Claim # 303. Since an unconstitutional law is void and invalid, there is no crime.

Claim # 304. An unconstitutional statute, whether federal or state, though


having the form and name of law, is in reality no law, but is wholly void, and
ineffective for any purpose; since unconstitutionality dates from the time of its
enactment, and not merely from the date of the decision so branding it, an
unconstitutional law, in legal contemplation, is as inoperative as if it had never
been passed. Such a statute leaves the question that it purports to settle just as
it would be had the statute not been enacted. No repeal of such an enactment is
necessary. Since an unconstitutional law is void, the general principles follow
that it imposes no duties, confers no rights, creates no office, bestows no power
or authority on anyone, affords no protection, and justifies no acts performed
under it. A contract which rests on an unconstitutional statute creates no
obligation to be impaired by subsequent legislation. No one is bound to obey an
unconstitutional law and no courts are bound to enforce it. Persons convicted
and fined under a statute subsequently held unconstitutional may recover the
fines paid. A void act cannot be legally inconsistent with a valid one. And an
unconstitutional law cannot operate to supersede any existing valid law. Indeed,
insofar as a statute runs counter to the fundamental law of the land, it is
superseded thereby. Since an unconstitutional statute cannot repeal or in any
way affect an existing one, if a repealing statute is unconstitutional, the statute
which it attempts to repeal remains in full force and effect. And where a clause
repealing a prior law is inserted in an act, which act is unconstitutional and
void, the provision for the repeal of the prior law will usually fall with it and will
not be permitted to operate as repealing such prior law. 16 Am Jur 2d, Sec 177
late 2d, Sec 256

Bonnett v. Vallier, 116 N.W. 885, 136 Wis. 193 (1908); NORTON v. SHELBY
COUNTY, 118 U.S. 425 (1886); Bonnett v Vallier, 136 Wis 193, 200; 116 NW
885, 887 (1908); State ex rel Ballard v Goodland, 159 Wis 393, 395; 150 NW
488, 489 (1915); State ex rel Kleist v Donald, 164 Wis 545, 552-553; 160 NW
1067, 1070 (1917); State ex rel Martin v Zimmerman, 233 Wis 16, 21; 288 NW
454, 457 (1939); State ex rel Commissioners of Public Lands v Anderson, 56 Wis
2d 666, 672; 203 NW2d 84, 87 (1973); and Butzlaffer v Van Der Geest & Sons,
Inc, Wis, 115 Wis 2d 539; 340 NW2d 742, 744-745 (1983).

Claim # 305. No legislative act, contrary to the Constitution, can be valid. To


deny this, would be to affirm, that the deputy is greater than his principal; that
the servant is above his master; that the representatives of the people are
superior to the people themselves; that men acting by virtue of powers, may do
not only what their powers do not authorize, but what they forbid. Federalist 78
Claim # 306. The values of the Framers of the Constitution must be applied in
any case construing the Constitution. Inferences from the text and history of the
Constitution should be given great weight in discerning the original
understanding and in determining the intentions of those who ratified the
Constitution. The precedential value of cases and commentators tends to
increase, therefore, in proportion to their proximity to the adoption of the
Constitution, the Bill of Rights or any other amendments.

Claim # 307. In drafting the founding documents of the new republic, the
Framers were heavily influenced by their English common law heritage. The
language of the Constitution cannot be interpreted safely except by reference to
the common law and to British institutions as they were when the instrument
was framed and adopted.

Claim # 308. The interpretation of the Constitution of the United States is


necessarily influenced by the fact that its provisions are framed in the language
of the English common law, and are to be read in the light of its history. MINOR
V. HAPPERSETT, 88 U. S. 162 (1874); MOORE V. UNITED STATES, 91 U. S.
270 (1875); BOYD V. UNITED STATES, 116 U. S. 616 (1886); SMITH V.
ALABAMA, 124 U. S. 465 (1888); UNITED STATES V. WONG KIM ARK, 169 U.
S. 649 (1898); SOUTH CAROLINA V. UNITED STATES, 199 U. S. 437 (1905)

Claim # 309. The term "natural born citizen" in the Constitution draws on a long
history in British common law. For example, a law passed in Britain in 1677 law
says that "natural born" citizens include people born overseas to British citizens.
This usage was undoubtedly known to John Jay, who apparently suggested the
"natural born citizen" wording and who was the father of children born overseas
while he was serving as a diplomat. This wording also appears in the
Naturalization Act of 1790, which was passed by the first Congress, a Congress
dominated by the Founding Fathers. This act declared that "the children of
citizens of the United States, that may be born beyond the sea, or out of the
limits of the United States, shall be considered as natural born citizens;
Provided, that the right of citizenship shall not descend to persons whose
fathers have never been resident of the United States." This usage suggests that
the Founding Fathers used the expression "natural born" so that children born
overseas to American citizens would not have to be naturalized. This
interpretation was clearly restated by a Cabinet Committee in 1940, which
declared that "persons who acquired United States citizenship at birth abroad
had never been regarded as naturalized."

Claim # 310. Whether we are considering an agreement between parties, a


statute or a constitution, with a view to its interpretation, the thing which we are
to seek is the thought which it expresses. To ascertain this the first resort in all
cases is to the natural signification of the words employed in the order of
grammatical arrangement in which the framers of the instrument have placed
them. If, thus regarded, the words embody a definite meaning which involves
no absurdity and no contradiction between different parts of the same writing,
then that meaning, apparent on the face of the instrument, is the one which
alone we are at liberty to say was intended to be conveyed. In such a case there
is no room for construction. That which the words declare is the meaning of the
instrument, and neither courts nor legislatures have a right to add to or take
away from that meaning.

Claim # 311. It is beyond question the duty of courts in construing statutes to


give effect to the intent of the law-making power, and to seek for that intent in
every legitimate way. But in the construction both of contracts and statutes, the
intent of the framers and parties is to be sought, first of all, in the words and
language employed, and if the words are free from ambiguity and doubt, and
express plainly, clearly, and distinctly the sense of the framers of the
instrument, there is no occasion to resort to other means of interpretation. It is
not allowable to interpret what has no need of interpretation, and when the
words have a definite and precise meaning to go elsewhere in search of
conjecture in order to restrict or extend the meaning. Statutes and contracts
should be read and understood according to the natural and most obvious
import of the language, without resort to subtle and forced construction for the
purpose of either limiting or extending their operation.

Claim # 312. The true way for courts to ascertain the legislative intention is to
observe and to be guided by the language of the statute, and, if this be clear and
free from ambiguity, there is nothing left for interpretation; for when the act is
conceived in clear and precise terms, when the sense is manifest and leads to
nothing absurd, there can be no reason to refuse the sense which it naturally
presents. To go elsewhere to obtain something to enlarge its meaning is to
endeavor to elude it. If this dangerous method be once admitted, there will be
no act which it will not render useless. The office of interpretation is not to put a
sense into language, but to ascertain the sense already existing there.
Fitzpatrick v. Gebhart, 7 Kan. 35

Claim # 313. A constitution should be interpreted consistently with its own


object and purpose. While the plain meaning of a constitution's terms must not
be ignored, its provisions should not be interpreted in a manner that leads to
absurd results or to effects that are at odds with the framers' objectives. It has
been observed that "the pole star in the construction of a Constitution is the
intention of its makers and adopters." On the one hand, consideration of the
object and purpose of the constitution entails mindfulness of the original intent
underlying any particular constitutional provision. On the other hand, it also
entails interpreting provisions consistently with the constitution's fundamental
norms, around which the constitutional order takes form. 11 Duke J. of Comp. &
Int'l L. 5
Claim # 314. The fairest and most rational method to interpret the will of the
legislator, is by exploring his intentions at the time when the law was made, by
signs the most natural and probable. And these signs are either the words, the
context, the subject matter, the effects and consequences, or the spirit and
reason of the law. Blackstone, Commentaries on the Laws of England, (1765),
vol 1 at 59

The Swiss Linguist Ferdinand de Saussure's essential theory about language


was that it was made up of signs which had two parts; words (signifiers) and
concepts (signified) which combined in an act of intellectual apprehension to
form the sign. Those five "signs", for interpreting or ascertaining the "will of the
legislator", words, context, subject matter, effects and consequences and the
spirit and reason of the law are perfectly serviceable in current times. This is
because of a perceived evolution of the principles of statutory interpretation
from a strict and literal approach, to an approach in which context, purpose and
broad considerations of legality and fairness have a role.

Claim # 315. When we find what the language means, in its ordinary and natural
sense, it is our duty to obey that meaning, even if we think the result to be
inconvenient or impolitic or improbable.

Claim # 316. The words used, even in their literal sense, are the primary, and
ordinarily the most reliable, source of interpreting the meaning of any writing:
be it statute, a contract, or anything else. But it is one of the surest indexes of a
mature and developed jurisprudence not to make a fortress out of the
dictionary; but to remember that statutes always have some purpose or object to
accomplish, whose sympathetic and imaginative discovery is the surest guide to
their meaning.

Claim # 317. The most universal and effectual way of discovering the true
meaning of a law, when the words are dubious, is by considering the reason and
spirit of it; or the cause which moved the legislator to enact it. For when this
reason ceases, the law itself ought likewise to cease with it. From this method of
interpreting laws, by the reason of them, arises what we call equity; which is
thus defined by Grotius, 'the correction of that, wherein the law (by reason of its
universality) is deficient'. Blackstone, Commentaries on the Laws of England,
(1765), vol 1 at 61

Claim # 318. The first and fundamental rule in the interpretation of all
instruments is, to construe them according to the sense of the terms, and the
intention of the parties. Where the words are plain and clear, and the sense
distinct and perfect arising on them, there is generally no necessity to have
recourse to other means of interpretation. It is only, when there is some
ambiguity or doubt arising from other sources, that interpretation has its proper
office. There may be obscurity, as to the meaning, from the doubtful character
of the words used, from other clauses in the same instrument, or from an
incongruity or repugnancy between the words, and the apparent intention
derived from the whole structure of the instrument, or its avowed object. In all
such cases interpretation becomes indispensable. In construing the constitution
of the United States, we are, in the first instance, to consider, what are its
nature and objects, its scope and design, as apparent from the structure of the
instrument, viewed as a whole, and also viewed in its component parts. Where
its words are plain, clear, and determinate, they require no interpretation; and it
should, therefore, be admitted, if at all, with great caution, and only from
necessity, either to escape some absurd consequence, or to guard against some
fatal evil. Where the words admit of two senses, each of which is conformable
to common usage, that sense is to be adopted, which, without departing from
the literal import of the words, best harmonizes with the nature and objects, the
scope and design of the instrument. Joseph Story, LL.D., Commentaries on the
Constitution of the United States [...] Abridged by the Author, for the Use of
Colleges and High Schools (Boston: Hilliard, Gray, and Company/Cambridge:
Brown, Shattuck, and Co., 1833), Chapter 5: Rules of Interpretation, pp. 134-
148, 154-162.

It would be a mistake, however, to imagine that Story's canons, or any other


rules of construction, ever could, or should, reduce interpretation to a merely
mechanical process. Professor James McClellan, a definite commentator on
Story, wrote: The conclusion seems inescapable that there will be comments
when the Court is unable to pinpoint the proper constitutional ruling and will of
necessity actually make the rule, even to the point of altering the Constitution.
Such, it would seem, is a natural and inevitable consequence, given the fact we
have a Constitution replete with nebulous phrases, the proper interpretation of
which cannot always be determined by going back to contemporary
construction or the debates of the federal and state conventions. In this sense
the Constitution is, indeed, "what the judges say it is." Beyond this point,
however, judicial constitution-making raises serious problems pertaining to
democratic government. We may join the realists in snickering at the judges of
the old school like Judge Story, who in their innocence and naiveté sincerely
believed that they merely 'found' the law when deciding a case and left intact
the original understanding of those framed and ratified the Constitution. But if
they did alter the Constitution, it was more likely by accident than design...
Agreed, judges make law, but is this any reason to recommend the practice as a
general principle of judicial construction? When the rule is clear of doubt, is it
not the task of the judge to 'find' the law and apply it to the case, as always?
Before resorting to an individual interpretation, should not the judge make a
sincere and honest attempt to discover the original intent? James P. McClellan,
Joseph Story and the American Constitution (1971), 114-15.

Claim # 319. Judges are bound to try to discover and apply the original intent at
least in its core principles.
Claim # 320. The proper rule of interpretation is to interpret the Constitution
strictly. It is to be construed strictly, in all cases, where the antecedent rights of
a State may be drawn into question. That is to say, although the Constitution
should not necessarily be interpreted narrowly in all respects, it should be
strictly construed in those instances where the rights of the States are at stake
and a power previously exercised by the State governments is in danger of
being usurped by the Federal government. The Union is a compact or written
agreement among the States. Like a contract between two or more parties, the
Constitution establishes rights and obligations. The "loose" construction of its
terms defeats the intent of the parties and is inconsistent with State sovereignty.
Tucker's Blackstone

Similarly, Thomas Jefferson laid down two rules for the interpretation of the
Constitution. His first rule of interpretation was to reserve to the States authority
over all matters that affected only their own citizens: “The capital and leading
object of the Constitution was, to leave with the States all authorities which
respected their own citizens only, and to transfer to the United States those
which respected citizens of foreign or other States; to make us several to
ourselves, but one as to all others. In the latter case, then, constructions should
lean to the general jurisdiction, if the words will bear it; and in favor of the
States in the former, if possible to be so construed.” The second rule of
interpretation, said Jefferson, was to construe the Constitution as the Founding
Fathers would have construed it.

Claim # 321. The very purpose of a written constitution is to ensure that


government officials, including judges, do not depart from the document’s
fundamental principles.

It is apparent that the framers of the constitution contemplated that instrument,


as a rule of government of courts . . . Why otherwise does it direct the judges to
take an oath to support it? MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 179-
80 (1803)

The Constitution is the “supreme Law of the Land.” Our American constitutional
paradigm dictates that the Constitution itself and all federal laws are the
“supreme Law of the Land.” U.S. Const. art. VI. All judges take their oath of
office to support the Constitution itself (and no person, office, government body,
or judicial opinion). Id. This Constitution and the solemn oath thereto are still
relevant today and should control, above all other competing powers and
influences, the decisions of federal courts.

Claim # 322. As a guide in expounding and applying the provisions of the


Constitution the legitimate meanings of the Instrument must be derived from
the text itself. J. Madison, Letter to Thomas Ritchie, September 15, 1821, in 3
Letters and Other Writings of James Madison 228 (Philip R. Fendall, ed., 1865)
Claim # 323. The Constitution is to be interpreted, as all other solemn
instruments are, by endeavoring to ascertain the true sense and meaning of all
the terms; and we are neither to narrow them, nor enlarge them, by straining
them from their just and natural import, for the purpose of adding to, or
diminishing its powers, or bending them to any favorite theory or dogma of
party. It is the language of the people, to be judged according to common
sense, and not by mere theoretical reasoning. It is not an instrument for the
mere private interpretation of any particular men. Joseph Story, A Familiar
Exposition of the Constitution of the United States § 42 (1840)

Claim # 324. The constitutional words deserve deference and precise definition.
HOLMES V. JENNISON, 39 U. S. 540 (1840)

Claim # 325. The meaning of the Constitution is not solely the province of
federal judges and lawyers. UNITED STATES V. SPRAGUE, 282 U. S. 716
(1931); DISTRICT OF COLUMBIA V. HELLER

Claim # 326. The courts' abandonment of fixed, per se rules results in the
application of judges' complicated substitutes for the law. Not only should the
rules be common, but they must be stable if they are to be just and compatible
with the order of a free society.

Claim # 327. The internal effects of a mutable policy are calamitous. It poisons
the blessing of liberty itself. It will be of little avail to the people, that the laws
are made by men of their own choice, if the laws be so voluminous that they
cannot be read, or so incoherent that they cannot be understood; if they be
repealed or revised before they are promulgated, or undergo such incessant
changes that no man, who knows what the law is to-day, can guess what it will
be to-morrow. Law is defined to be a rule of action; but how can that be a rule,
which is little known, and less fixed? Another effect of public instability is the
unreasonable advantage it gives to the sagacious, the enterprising, and the
moneyed few over the industrious and uniformed mass of the people. Every new
regulation concerning commerce or revenue, or in any way affecting the value
of the different species of property, presents a new harvest to those who watch
the change, and can trace its consequences; a harvest, reared not by
themselves, but by the toils and cares of the great body of their fellow-citizens.
This is a state of things in which it may be said with some truth that laws are
made for the FEW, not for the MANY. Great injury results from an unstable
government. The want of confidence in the public councils damps every useful
undertaking, the success and profit of which may depend on a continuance of
existing arrangements. What prudent merchant will hazard his fortunes in any
new branch of commerce when he knows not but that his plans may be
rendered unlawful before they can be executed? What farmer or manufacturer
will lay himself out for the encouragement given to any particular cultivation or
establishment, when he can have no assurance that his preparatory labors and
advances will not render him a victim to an inconstant government? In a word,
no great improvement or laudable enterprise can go forward which requires the
auspices of a steady system of national policy. But the most deplorable effect of
all is that diminution of attachment and reverence which steals into the hearts of
the people, towards a political system which betrays so many marks of infirmity,
and disappoints so many of their flattering hopes. No government, any more
than an individual, will long be respected without being truly respectable; nor
be truly respectable, without possessing a certain portion of order and stability.
Federalist 62

Claim # 328. A law fails to meet the requirements of the Due Process Clause if it
is so vague and standardless that it leaves the public uncertain as to the conduct
it prohibits or leaves judges and jurors free to decide, without any legally fixed
standards, what is prohibited and what is not in each particular case.
LANZETTA V. NEW JERSEY, 306 U. S. 451 (1939); BAGGETT V. BULLITT, 377
U. S. 360 (1964); GIACCIO V. PENNSYLVANIA, 382 U. S. 399 (1966)

Claim # 329. The dividing line between what is lawful and unlawful cannot be
left to conjecture. The citizen cannot be held to answer charges based upon
penal statutes whose mandates are so uncertain that they will reasonably admit
of different constructions. A criminal statute cannot rest upon an uncertain
foundation. The crime, and the elements constituting it, must be so clearly
expressed that the ordinary person can intelligently choose, in advance, what
course it is lawful for him to pursue. Penal statutes prohibiting the doing of
certain things, and providing a punishment for their violation, should not admit
of such a double meaning that the citizen may act upon the one conception of
its requirements and the courts upon another. CONNALLY V. GENERAL
CONSTRUCTION CO., 269 U. S. 385 (1926)

Claim # 330. All laws should receive a sensible construction. General terms
should be so limited in their application as not to lead to injustice, oppression,
or an absurd consequence. It will always therefore be presumed that the
legislature intended exceptions to its language which would avoid results of this
character. The reason of the law in such cases should prevail over its letter.
CHURCH OF THE HOLY TRINITY V. UNITED STATES, 143 U. S. 457 (1892)

Claim # 331. Men of common intelligence cannot be required to guess at the


meaning of an enactment. The vagueness may be from uncertainty in regard to
persons within the scope of the act or in regard to the applicable tests to
ascertain guilt. Courts must do their best to determine whether or not the
vagueness is of such a character that men of common intelligence must
necessarily guess at its meaning. Where a statute is so vague as to make
criminal an innocent act, a conviction under it cannot be sustained. CONNALLY
V. GENERAL CONSTRUCTION CO., 269 U. S. 385 (1926); HERNDON V.
LOWRY, 301 U. S. 242 (1937); WINTERS V. NEW YORK, 333 U. S. 507 (1948)
Claim # 332. Although the concepts of vagueness and overbreadth are related,
there are important differences. A clear and precise enactment may
nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected
conduct. GRAYNED V. CITY OF ROCKFORD, 408 U. S. 104 (1972)

Claim # 333. No one may be required at peril of life, liberty or property to


speculate as to the meaning of penal statutes. All are entitled to be informed as
to what the State commands or forbids. The applicable rule is 'That the terms of
a penal statute creating a new offense must be sufficiently explicit to inform
those who are subject to it what conduct on their part will render them liable to
its penalties. And a statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application, violates the first essential of due
process of law.' LANZETTA V. NEW JERSEY, 306 U. S. 451 (1939); BOUIE V.
CITY OF COLUMBIA, 378 U. S. 347 (1964)

Claim # 334. A statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application, violates the first essential of due
process of law. CONNALLY V. GENERAL CONSTRUCTION CO., 269 U. S. 385
(1926)

Claim # 335. A law that is 'void for vagueness' not only fails to provide adequate
notice to those who must observe its strictures, but also impermissibly
delegates basic policy matters to policemen, judges, and juries for resolution on
an ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory applications. GRAYNED V. CITY OF ROCKFORD, 408 U. S. 104
(1972)

Claim # 336. It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined. Vague laws offend several
important values. First, because we assume that man is free to steer between
lawful and unlawful conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he may
act accordingly. Vague laws may trap the innocent by not providing fair
warning. Second, if arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for those who apply them. A
vague law impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application. Third, but related, where a
vague statute abuts upon sensitive areas of basic First Amendment freedoms, it
operates to inhibit the exercise of those freedoms. Uncertain meanings
inevitably lead citizens to steer far wider of the unlawful zone than if the
boundaries of the forbidden areas were clearly marked. INTERNATIONAL
HARVESTER CO. V. KENTUCKY, 234 U. S. 216 (1914); UNITED STATES V. L.
COHEN GROCERY CO., 255 U. S. 81 (1921); CONNALLY V. GENERAL
CONSTRUCTION CO., 269 U. S. 385 (1926); STROMBERG V. CALIFORNIA, 283
U. S. 359 (1931); HERNDON V. LOWRY, 301 U. S. 242 (1937); LANZETTA V.
NEW JERSEY, 306 U. S. 451 (1939); THORNHILL V. ALABAMA, 310 U. S. 88
(1940); WINTERS V. NEW YORK, 333 U. S. 507 (1948); SAIA V. NEW YORK,
334 U. S. 558 (1948); KUNZ V. NEW YORK, 340 U. S. 290 (1951); JORDAN V.
DE GEORGE, 341 U. S. 223 (1951); UNITED STATES V. HARRISS, 347 U. S. 612
(1954); SPEISER V. RANDALL, 357 U. S. 513 (1958); SMITH V. CALIFORNIA,
361 U. S. 147 (1959); GARNER V. LOUISIANA, 368 U. S. 157 (1961); CRAMP V.
BOARD OF PUBLIC INSTRUCTION, 368 U. S. 278 (1961); EDWARDS V. SOUTH
CAROLINA, 372 U. S. 229 (1963); BAGGETT V. BULLITT, 377 U. S. 360 (1964);
DOMBROWSKI V. PFISTER, 380 U. S. 479 (1965); SHUTTLESWORTH V. CITY
OF BIRMINGHAM, 382 U. S. 87 (1965); GIACCIO V. PENNSYLVANIA, 382 U. S.
399 (1966); ASHTON V. KENTUCKY, 384 U. S. 195 (1966); INTERSTATE
CIRCUIT, INC. V. CITY OF DALLAS, 390 U. S. 676 (1968); GREGORY V. CITY
OF CHICAGO, 394 U. S. 111 (1969); COATES V. CITY OF CINCINNATI, 402 U.
S. 611 (1971); PAPACHRISTOU V. CITY OF JACKSONVILLE, 405 U. S. 156
(1972); GRAYNED V. CITY OF ROCKFORD, 408 U. S. 104 (1972)

Claim # 337. A law is unconstitutionally vague if fails to give fair warning of


prohibited conduct or if it allows arbitrary enforcement. A statute may be vague
not only on its face, but also as applied to a particular circumstance.

Claim # 338. The vagueness challenge is based on the notion that a vague
statute effectively denies due process. A statute that is vague creates a denial of
due process because of a failure to provide notice and warning to an individual
that his or her conduct could subject that individual to criminal or quasi-
criminal prosecution.

Claim # 339. In order to survive a vagueness challenge, a statute must enable a


person of 'common intelligence, in light of ordinary experience' to understand
whether contemplated conduct is lawful. KOLENDER V. LAWSON, 461 U. S.
352 (1983)

Claim # 340. A law is void for vagueness if persons of common intelligence must
necessarily guess at its meaning and differ as to its application. The offense to
due process lies in both the nature and consequences of vagueness. First, vague
laws do not give individuals fair notice of the conduct proscribed. Second,
vague laws do not limit the exercise of discretion by law enforcement officials;
thus they engender the possibility of arbitrary and discriminatory enforcement.
Third, vague laws defeat the intrinsic promise of, and frustrate the essence of, a
constitutional regime. We remain a government of laws, and not of men, only so
long as our laws remain clear. MARBURY V. MADISON, 5 U. S. 137 (1803);
CONNALLY V. GENERAL CONSTRUCTION CO., 269 U. S. 385 (1926);
PAPACHRISTOU V. CITY OF JACKSONVILLE, 405 U. S. 156 (1972); GRAYNED
V. CITY OF ROCKFORD, 408 U. S. 104 (1972); SMITH V. GOGUEN, 415 U. S.
566 (1974); CITY OF MESQUITE V. ALADDIN'S CASTLE, INC., 455 U. S. 283
(1982)

Claim # 341. The goal of statutory construction is to effectuate the intent and
purpose of Congress. Where the language of the statute itself is unambiguous, it
is presumed that it expresses congressional intent and the language is
controlling. If the statutory language is unclear after resort to traditional tools of
statutory construction, courts look to the legislative history to glean the intent
and purpose of Congress. BLUM V. STENSON, 465 U. S. 886 (1984)

Claim # 342. Unambiguous statutes and constitutional provisions are not


subject to interpretation and construction. State ex rel. Evans v. Brotherhood of
Friends, 41 Wn.2d 133, 247 P.2d 787 (1952)

Claim # 343. Constitutions are instruments of a practical nature, founded on the


common business of human life, adapted to common wants, designed for
common use, and fitted for common understandings. The people make them,
the people adopt them, the people must be supposed to read them, with the
help of common-sense, and cannot be presumed to admit in them any recondite
meaning or any extraordinary gloss. Joseph Story, Commentaries on the
Constitution of the United States (1833). Boston: Hilliard, Gray, and
Company/Cambridge: Brown, Shattuck, and Co., 1833), Chapter 5: Rules of
Interpretation, pp. 134-148, 154-162

Claim # 344. In order to determine the meaning of our constitutional provisions,


it is necessary to ascertain the intent of the framers of our constitution. That
intent must be based upon the intent of the instruments considered as a whole.
The constitution must be construed in the sense in which the framers
understood it. State of Washington v. Helen J Norman et al, February 21, 2002

Claim # 345. Appropriate constitutional analysis begins with the text and, for
most purposes, should end there as well. When interpreting constitutional
provisions we first look to the plain language of the text, giving the words of the
text their common and ordinary meaning as understood at the time of drafting.
Malyon v. Pierce County, 131 Wn.2d 779, 799, 935 P.2d 1272 (1997); Wash.
Water Jet Workers Ass'n v. Yarbrough, 151 Wn.2d 470, 477, 90 P.3d 42 (2004)

Claim # 346. In determining the meaning of a constitutional provision, the intent


of the framers, and the history of events and proceedings contemporaneous
with its adoption may properly be considered. Yelle v. Bishop, 55 Wn.2d 286,
291, 347 P.2d 1081 (1959)

Claim # 347. In placing a construction on a Constitution or any clause or part


thereof, a court should look to the history of the times and examine the state of
things existing when the Constitution was framed and adopted, in order to
ascertain the prior law, the mischief, and the remedy. A constitutional provision
must be presumed to have been framed and adopted in the light and
understanding of prior and existing laws and with reference to them. 11
Am.Jur., Constitutional Law., § 63

Claim # 348. Judicial exposition of the meaning of a statutory text is legitimate


so long as it is an exercise, undertaken consistently with principles of law and
logic, in discovering the will of parliament. It is illegitimate when it is an
exercise in imposing the will of the judge. The difference is sometimes
expressed by referring to a conclusion as judicial legislation; a contradiction in
terms reflecting the repugnancy to constitutional principle of judicial departure
from the field of interpreting the law and trespass into the field of making the
law.

Claim # 349. When courts and judges overreach and become lawmakers and
executives, they necessarily wrest power from the people and undermine our
constitutional order. 1. THEY INVALIDATE DEMOCRACY AT THE STATE AND
FEDERAL LEVEL. 2. THEY UNDERMINE OUR EXECUTIVE BRANCH'S ABILITY
TO DEFEND US—SPECIFICALLY IN THE WAR ON TERROR. 3. THEY
SUBVERT THE FOUNDATIONS OF AMERICA'S LAWS AND OUR JUDEO-
CHRISTIAN MORAL HERITAGE. 4. THEY WEAKEN OUR OWN CONSTITUTION
AND NATIONAL SOVEREIGNTY BY RELYING ON INTERNATIONAL LAW.

Claim # 350. We live in an age of judicial activism, or as some have called it,
judicial tyranny. Judges are striking down laws and writing new ones left and
right, without precedent and without reason.

Americans have often been concerned about judicial activism, judicial tyranny,
evolutionary jurisprudence, rendering unconstitutional opinions, and the like.
Steven W. Fitschen, Impeaching Federal Judges: A Covenantal and
Constitutional Response to Judicial Tyranny, 10 REGENT U.L. REV. 111, 127–28
(1998). Our elected representatives, who are accountable to us, pass laws—
judges do not. They simply judge whether an existing law has been violated in a
particular case by particular parties. Yet we live in an age of judicial activism, or
as some have called it, judicial tyranny.

Making new law in all areas, civil and criminal, is a central part of the work of
modern parliaments. Consequently, applying legislation is now the largest part
of the work of modern judges. Whether it is described as a science or an art,
statutory interpretation is of central importance to the daily work of all judges.
The responsibility of discovering, expounding and applying the meaning of
legislation is discharged according to legal principles. Observing those
principles goes to the essence of the role of courts in a liberal democracy, and
of the relationship between courts and citizens, whose elected representatives
are the authors of the legislation that courts are duty bound to understand and
apply. When a court sets out to discover the meaning of a text it does so for a
purpose different from that of a literary critic, or an historian. The court's
decision will affect the property, or the civil rights, of parties to litigation and,
perhaps, of many other people as well. Courts are constrained by precedent and
doctrine, and the nature of their task controls the techniques according to which
they act.

Unless the meaning of a legal text of any kind is self-evident, then the text
requires interpretation. The law-giver, in the language of an enactment,
expresses its will, and thereby binds those who are subject to its authority,
including courts that have the duty of applying the law. The principles that
govern the function of interpretation are derived from the purpose of
interpretation. The interpretation of a legal text is a search for meaning. The
starting point must be the text itself. The primacy of the text is the first principle
of interpretation. There may be uncertainty, and room for debate, but, once
established, it is the meaning of the text that is controlling. Understanding some
texts involves no more than giving clear language its plain meaning. Often,
however, there is more to it than that. Even so, interpretation has its own
limitations some of which are constitutional. The apparent meaning of statutory
language is the starting point, but not the end of interpretation. A judge must
consider all relevant contextual material in order to decide what different
meanings the text is capable of letting in and what is the best interpretation
among competing solutions. But the judge's task is interpretation, not
interpolation. Interpretation is not infinitely expandable. What falls beyond that
range of possible contextual meanings of the text will not be a result attainable
by interpretation. There is a Rubicon which judges may not cross: principles of
institutional integrity forbid it. Steyn, "Dynamic Interpretation Amidst an Orgy
of Statutes", (2003) 35 Ottawa Law Review 163 at 165-166

Claim # 351. The role of the judiciary in dealing with the Constitution and its
impact upon the laws passed by the legislature is certainly not to ascertain the
"spirit of the Constitution," but rather it is to examine the words within the
Constitution to be the standard of construction for the laws, and that wherever
there is an evident opposition, the laws ought to give place to the Constitution.
Federalist 81

Claim # 352. The executive not only dispenses the honors but holds the sword
of the community. The legislature not only commands the purse but prescribes
the rules by which the duties and rights of every citizen are to be regulated. The
judiciary, on the contrary, has no influence over either the sword or the purse.
Liberty can have nothing to fear from the judiciary alone, but would have
everything to fear from its union with either of the other departments. Federalist
78

Claim # 353. A faction is 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. Federalist 10
Claim # 354. Separation of powers is a condition necessary for the protection of
liberty in any form of government, whether monarchic or republican. There can
be no liberty where the legislative and executive powers are united in the same
person, or body of magistrates, or if the power of judging be not separated from
the legislative and executive powers. Montesquieu, Spirit of the Laws XI.6, and
Fed. 47

Claim # 355. The accumulation of all powers, legislative, executive, and


judiciary, in the same hands, whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may justly be pronounced the very
definition of tyranny. Federalist 47

Claim # 356. The concentrating of all the powers of government in the same
hands is precisely the definition of despotic government. It will be no
alleviation, that these powers will be exercised by a plurality of hands, and not
by a single one. One hundred and seventy-three despots would surely be as
oppressive as one. An elective despotism was not the government we fought for;
but one which should not only be founded on free principles, but in which the
powers of government should be so divided and balanced among several bodies
of magistracy, as that no one could transcend their legal limits, without being
effectually checked and restrained by the others. Thomas Jefferson: Notes on
Virginia Q.XIII, 1782. ME 2:162

Claim # 357. If men were angels, no government would be necessary. If angels


were to govern men, neither external nor internal controls on government
would be necessary. In framing a government which is to be administered by
men over men, the great difficulty lies in this: you must first enable the
government to control the governed; and in the next place oblige it to control
itself. A dependence on the people is, no doubt, the primary control on the
government; but experience has taught mankind the necessity of auxiliary
precautions. Federalist 51

The founders of the United States of America, particularly Jefferson and


Madison, brought remarkable intellectual rigour and imagination to the
problems of creating a new democracy. They may have been somewhat misled
by the French philosopher Montesquieu, who thought that the separation of the
executive, legislative and judicial powers was the secret of the success of the
English system after 1688, and the American system was modelled on that
principle. ‘The Americans of 1787’, wrote Bagehot, ‘thought they were copying
the English Constitution, but they were contriving a contrast to it.’ In fact what
Montesquieu was emphasising was the importance of the independence of the
judicial system from political forces (unlike the situation in France), and this
separation of powers is common to both the British and American systems.
There was great concern among the authors of the American Constitution that
there should be checks on the use and abuse of political power, and that the
various parts of government should be in balance. James Madison, the principal
author of the Constitution, wrote that ‘in framing a government which is to be
administered by men over men, the great difficulty lies in this: you must first
enable the government to control the governed; and in the next place oblige it
to control itself. A dependence on the people is, no doubt, the primary control
on the government; but experience has taught mankind the necessity of
auxiliary precautions.’ As Lord Acton put it: ‘Power tends to corrupt and
absolute power corrupts absolutely.’ Edmund Burke was also aware of the
dangers of untrammelled power. Two hundred years ago he wrote that ‘in a
democracy the majority of citizens is capable of exercising the most cruel
oppression upon the minority.’ His views were echoed nearly a century later by
J.S. Mill when he wrote of the evil effect produced upon the mind of any holder
of power, whether an individual or an assembly, by the consciousness of having
only themselves to consider...A majority in a single assembly easily becomes
despotic and overweening, if released from the necessity of considering
whether its acts will be concurred in by another constituted authority. One of
the most indispensable requisites in the practical conduct of politics, especially
in the management of free institutions, is conciliation: a readiness to
compromise; a willingness to concede something to opponents, and to shape
good measures so as to be as little offensive as possible to persons of opposite
views.’ He went on to say that, to control a government, it was essential to
‘throw the light of publicity on its acts; to compel a full exposition and
justification of all of them which anyone considers questionable.’

Claim # 358. There can be no liberty where the legislative and executive powers
are united in the same person or body of magistrates.

Claim # 359. There is no liberty, if the power of judging be not separated from
the legislative and executive powers.

Claim # 360. The judiciary is limited by the same fundamental law that
constrains the other branches.

Claim # 361. An accumulation of power in the judicial department would not


only furnish pretexts for complaint against it but might create a general dread of
its influence. Joseph Story, Commentaries on the Constitution of the United
States (Boston: Hilliard, Gray, and Company, 1833), Vol. II, p. 233, § 760

Claim # 362. The word "independent" as applicable to the Judiciary is not


correct nor justified by the Constitution. This term is borrowed from Great
Britain and by some incorrect apprehension of its meaning there is applied
here. Charles S. Hyneman and George W. Carey, A Second Federalist (1967)
supra note 91 at 183-84 (quoting Senator William Giles)

Claim # 363. The ultimate will of the people, as recognized by the Federalist
Papers, is the Constitution. In discharging its responsibilities, there is no
perceived superiority of the judiciary over the legislature. Judicial review does
not presuppose the superiority of the judicial over the legislative power, but
only supposes that the power of the people is superior to both, and that where
the will of the legislature declared in its statute, stands in opposition to that of
the people declared in the Constitution, the judges ought to be governed by the
latter and not the former. They ought to regulate their decisions by the
fundamental laws, rather than by those which are not fundamental. If there is a
variance between the two laws, fundamental and non-fundamental, that which
has the superior obligation and validity ought, of course, to be preferred; or, in
other words, the Constitution ought to be preferred to the statute, the intention
of the people to the intention of their agents. Federalist 78

The Federalist exposition notwithstanding, perhaps the clearest words


regarding the Constitution's limitation on the branches of government are
contained in that document's 10th Amendment, which states, "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."

Claim # 364. The purpose of a written constitution is to bind up the several


branches of government by certain laws, which, when they transgress, their acts
shall become nullities; to render unnecessary an appeal to the people, or in
other words a rebellion, on every infraction of their rights, on the peril that their
acquiescence shall be construed into an intention to surrender those rights.
Thomas Jefferson: Notes on Virginia, 1782

A written constitution is needed to establish the lawful bounds beyond which


government may not go.

Claim # 365. The foundation of the Constitution is laid on this ground: That "all
powers not delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States or to the people." [X Amendment] To
take a single step beyond the boundaries thus specifically drawn around the
powers of Congress, is to take possession of a boundless field of power, no
longer susceptible of any definition. Thomas Jefferson: National Bank Opinion,
1791

A constitution with strict limits will fasten chains on power and, with the help of
separate branches of government, can prevent any part of government from
exceeding its rightful powers.

Claim # 366. It is a fatal heresy to suppose that either our State governments are
superior to the Federal or the Federal to the States. The people, to whom all
authority belongs, have divided the powers of government into two distinct
departments, the leading characters of which are foreign and domestic; and
they have appointed for each a distinct set of functionaries. These they have
made coordinate, checking and balancing each other like the three cardinal
departments in the individual States; each equally supreme as to the powers
delegated to itself, and neither authorized ultimately to decide what belongs to
itself or to its copartner in government. Thomas Jefferson to Spencer Roane,
1821

A separation of powers between the states and the federal governments will
further divide the powers of government and make it nearly impossible for any
person or group to seize despotic powers.

Claim # 367. If some period be not fixed, either by the Constitution or by


practice, to the services of the First Magistrate, his office, though nominally
elective, will in fact be for life; and that will soon degenerate into an inheritance.
Thomas Jefferson to Mr. Weaver, 1807

Rotation in the office of President will prevent the person holding executive
power from establishing a dynasty, and from depriving the people of their
oversight.

Claim # 368. There are instruments so dangerous to the rights of the nation and
which place them so totally at the mercy of their governors that those
governors, whether legislative or executive, should be restrained from keeping
such instruments on foot but in well-defined cases. Such an instrument is a
standing army. Thomas Jefferson to David Humphreys, 1789

Claim # 369. We must train and classify the whole of our male citizens, and
make military instruction a regular part of collegiate education. We can never
be safe till this is done. Thomas Jefferson to James Monroe, 1813. ME 13:261

A trained militia consisting of every able-bodied citizen will provide the first line
of defense for the nation. The control of the militia by the state governments will
prevent the overthrow of constitutional government by central forces.

Claim # 370. There is no greater expression of freedom and liberty than the
defense of the God-given right of an individual to hold, possess, and use private
property.

Securing property rights is an absolutely essential measure to ensure the


peaceful pursuit of prosperity by all citizens.

Claim # 371. An overriding respect for the sanctity of the ownership and
personal use of private property, free from restrictive and invasive regulatory
regulations, is firmly embedded in American colonial law, common law, and
constitutional law.

Claim # 372. All men are born free and equal, and have certain natural,
essential, and unalienable rights, among which may be reckoned the right of
acquiring, possessing, and protecting property. The Constitutions of the Several
Independent States of America (Boston: Norman and Bowen, 1785), p. 6; William
Paterson, The Charge of Judge William Paterson to the Jury (Philadelphia, Smith,
1796), p. 15

Claim # 373. The preservation of property is the reason for which men enter
into society and that no government hath a right to take their property, or any
part of it, without their own consent, for this would be in effect to leave them no
property at all. John Locke, Two Treatises of Government (1689/1690)

Claim # 374. Our rights include: First, a right to life; Secondly, to liberty;
Thirdly, to property; together with the right to support and defend them. Samuel
Adams, The Rights of the Colonists, 20 Nov. 1772. Writings 2:350--59

Claim # 375. The moment the idea is admitted into society, that property is not
as sacred as the laws of God, and that there is not a force of law and public
justice to protect it, anarchy and tyranny commence. John Adams, Defence of
the Constitutions of Government of the United States, 1787. Works 6:8--9

Claim # 376. Property is surely a right of mankind as really as liberty. John


Adams, A Defence of the Constitution of Government of the United States of
America (Philadelphia: William Young, 1797), Vol. III, p. 216, “The Right
Constitution of a Commonwealth Examined”

Claim # 377. It is the undoubted right and unalienable privilege of a citizen not
to be divested or interrupted in the innocent use of property. This is the
Cornerstone of every free Constitution. John Jay, John Jay The Making of a
Revolutionary, Unpublished Papers, 1745-1780, Richard B. Morris, editor (New
York: Harper & Row Publishers, 1980), Vol. I, p. 462, “A Freeholder: A Hint to
the Legislature of the State of New York,” Winter 1778

Claim # 378. Property is the exclusive right of possessing, enjoying and


disposing of a thing. In the beginning of the world, the Creator gave to man
dominion over the earth, over the fish of the sea and the fowls of the air, and
over every living thing. This is the foundation of man's property in the earth and
in all its productions. Prior occupancy of land and of wild animals gives to the
possessor the property of them. The labor of inventing, making or producing
anything constitutes one of the highest and most indefeasible titles to property.
Noah Webster, An American Dictionary of the English Language (New York: S.
Converse, 1828)

Claim # 379. Government is instituted to protect property. This being the end of
government, that alone is a just government which impartially secures to every
man whatever is his own. That is not a just government, nor is property secure
under it, where arbitrary restrictions, exemptions, and monopolies deny to part
of its citizens that free use of their own faculties. James Madison, The Writings
of James Madison, Gaillard Hunt, editor (New York: G.P. Putnam’s Sons, 1906),
Vol. VI, p. 102, “Property,” March 29, 1792

Claim # 380. The chief duty and care of all governments is to protect the rights
of property. Fisher Ames, The Works of Fisher Ames (Boston: T.B. Wait & Co.,
1809), p. 125, “Eulogy on Washington”, Feb. 8, 1800

Claim # 381. (1) We cannot be happy without being free; that (2) we cannot be
free without being secure in our property; that (3) we cannot be secure in our
property if without our consent others may as by right take it away. John
Dickinson, The Political Writings of John Dickinson (Wilmington, Bonsal and
Niles, 1801), Vol. I, p. 275, “Letters from a Farmer in Pennsylvania to the
inhabitants of the British Colonies,” Letter XII

Claim # 382. Property must be secured or liberty cannot exist. John Adams, The
Works of John Adams, Charles Francis Adams, editor (Boston: Charles C. Little
and James Brown, 1851), Vol. VI, p. 280, “Discourse on Davila; a Series of
Papers on Political History”

Claim # 383. The end of all government is the good and ease of the people in a
secure enjoyment of their rights without oppression. John Adams, A Defence of
the Constitution of Government of the United States of America (Philadelphia:
William Young, 1797), Vol. III, pp. 293-294, “The Right Constitution of a
Commonwealth Examined”; see also The Founders’ Constitution, “Balanced
Government: John Adams, Defense of the Constitutions of Government of the
United States”

Claim # 384. The Fifth Amendment prohibits the federal government from
depriving any person of "life, liberty, or property, without due process of law,"
and the Fourteenth Amendment extends that prohibition to the states. State
constitutions say the same thing, in one form of words or another.

Historically, this guarantee of due process has been applied to deliberate


decisions of government officials to deprive a person of life, liberty, or property.
DAVIDSON V. NEW ORLEANS, 96 U. S. 97 (1878); ROCHIN V. CALIFORNIA,
342 U. S. 165 (1952); BELL V. BURSON, 402 U. S. 535 (1971); INGRAHAM V.
WRIGHT, 430 U. S. 651 (1977); HUDSON V. PALMER, 468 U. S. 517 (1984);
DANIELS V. WILLIAMS, 474 U. S. 327 (1986)

Claim # 385. The Due Process Clause, like its forbear in the Magna Carta, was
intended to secure the individual from the arbitrary exercise of the powers of
government. BANK OF COLUMBIA V. OKELY, 17 U. S. 235 (1819); HURTADO
V. CALIFORNIA, 110 U. S. 516 (1884); WOLFF V. MCDONNELL, 418 U. S. 539
(1974); DANIELS V. WILLIAMS, 474 U. S. 327 (1986)
Scholars have traced the phrase "due process of law" to Sir Eward Coke's
seventeenth century commentary on Magna Carta, in which he used the words,
claiming a Law French original, to restate (and perhaps enlarge) the Great
Charter's guarantee of freemen's rights against governmental invasion except
per legem terre ("by the law of the land"). It should be unnecessary to remark
that a guarantee of due process is a procedural guarantee. Before a person can
be deprived of life, liberty, or property, certain procedures must be observed,
procedures designed to ensure fairness. In its English origin, insistence on due
process of law—or the law of the land—was designed to protect against
executive (or judicial) overreaching. Six hundred and fifty years after Magna
Carta, in the last decades of the nineteenth century, due process in America had
become a constitutional limitation on legislative power. No longer exclusively
concerned with how the executive (or judiciary) proceeded, due process
developed a concern with what the legislature did. Due process had acquired, in
other words, a substantive dimension. United States Supreme Court Justice
Samuel Miller had the historical perspective to recognize the contrast. In
Davidson v. New Orleans in 1878 he wrote on behalf of the Court: "It is easy to
see that when the great barons of England wrung from King John, at the point
of the sword, the concession that neither their lives nor their property should be
disposed of by the crown, except as provided by the law of the land, they meant
by "law of the land" the ancient and customary laws of the English people, or
laws enacted by the Parliament of which those barons were a controlling
element. It was not in their minds, therefore, to protect themselves against the
enactment of laws by the Parliament of England." But, he continued, the
Fourteenth Amendment directed attention to state action. "Can a State make
anything due process of law which, by its own legislation, it chooses to declare
such?" he asked rhetorically, and answered on behalf of his brethren: "To affirm
this is to hold that the prohibition to the States is of no avail, or has no
application where the invasion of private rights is effected under the forms of
State legislation. It seems to us that a statute which declares in terms, and
without more, that the full and exclusive title of a described piece of land, which
is now in A, shall be and is hereby vested in B, would, if effectual, deprive A of
his property without due process of law, within the meaning of the
constitutional provision." Taking from A and giving to B had become the
shorthand to describe what substantive due process was designed to prevent.

Claim # 386. The touchstone of due process is protection of the individual


against arbitrary action of government. DENT V. WEST VIRGINIA, 129 U. S.
114 (1889); DANIELS V. WILLIAMS, 474 U. S. 327 (1986)

By requiring the government to follow appropriate procedures when its agents


decide to "deprive any person of life, liberty, or property," the Due Process
Clause promotes fairness in such decisions. And by barring certain government
actions regardless of the fairness of the procedures used to implement them, it
serves to prevent governmental power from being "used for purposes of
oppression," Murray's Lessee [474 U.S. 327, 332] v. Hoboken Land &
Improvement Co., 18 How. 272, 277 (1856) (discussing Due Process Clause of
Fifth Amendment).

Claim # 387. Without doubt 'liberty' denotes not merely freedom from bodily
restraint but also the right of the individual to contract, to engage in any of the
common occupations of life, to acquire useful knowledge, to marry, establish a
home and bring up children, to worship God according to the dictates of his
own conscience, and generally to enjoy those privileges long recognized at
common law as essential to the orderly pursuit of happiness by free men. The
American people have always regarded education and acquisition of knowledge
as matters of supreme importance which should be diligently promoted. The
Ordinance of 1787 declares, "Religion, morality, and knowledge being
necessary to good government and the happiness of mankind, schools and the
means of education shall forever be encouraged." SLAUGHTERHOUSE CASES,
83 U. S. 36 (1872); MEYER V. NEBRASKA, 262 U. S. 390 (1923)

Claim # 388. The makers of our Constitution undertook to secure conditions


favorable to the pursuit of happiness. They recognized the significance of man's
spiritual nature, of his feelings, and of his intellect. They knew that only a part
of the pain, pleasure and satisfactions of life are to be found in material things.
They sought to protect Americans in their beliefs, their thoughts, their emotions
and their sensations. They conferred, as against the government, the right to be
let alone—the most comprehensive of rights and the right most valued by
civilized men. To protect, that right, every unjustifiable intrusion by the
government upon the privacy of the individual, whatever the means employed,
must be deemed a violation of the Fourth Amendment. OLMSTEAD V. UNITED
STATES, 277 U. S. 438 (1928); ON LEE V. UNITED STATES, 343 U. S. 747
(1952); MEISEL v. U.S., 412 U.S. 954 (1973)

Claim # 389. The greatest dangers to liberty lurk in insidious encroachment by


men of zeal, well meaning but without understanding. OLMSTEAD V. UNITED
STATES, 277 U. S. 438 (1928); ON LEE V. UNITED STATES, 343 U. S. 747
(1952)

When a government expands and intensifies its activities and tightens the rules
under which its residents must live, it always does so in the name of the people
and for their presumed benefit. It may retain established rituals and honored
traditions by which it hides the change and stakes out a seemingly respectable
claim to legitimacy. Hitler, Mussolini, and Stalin claimed to be governing in the
long-range interest and for the good of their citizens, many of whom (and at
times a majority of whom) believed, at least temporarily, that it was all done for
their own “liberty and pursuit of happiness.” Over half a century ago, Justice
Brandeis, one of the leading liberals of his day, warned that “experience should
teach us to be most on our guard to protect liberty when the Government's
purposes are beneficent. Men born to freedom are naturally alert to repel
invasion of their liberty by evil-minded rulers. The greatest dangers to liberty
lurk in insidious encroachment by men of zeal, well meaning but without
understanding.” It is the nature of government to continually try to extend the
range and intensity of its functions and to penetrate deeply into affairs which
used to be regarded as being in the private sphere, thereby narrowing and
endangering individual freedom. “Liberty has never come from the
government,” Woodrow Wilson wrote, reminding us that “a history of liberty is
the history of limitations of governmental powers, not the increase of it.”

Claim # 390. The word "liberty" includes and comprehends all personal rights
and their enjoyment. It embraces freedom from duress; freedom from
government interference in exercise of intellect, in formation of opinions, in the
expression of them, and in action or inaction dictated by the judgment; freedom
from servitude, imprisonment or restraint; freedom in enjoyment and use of all
of one's powers, faculties and property; freedom of assembly; freedom of citizen
from banishment; freedom of conscience; freedom of contract; freedom of
locomotion or movement; freedom of occupation; freedom of press; freedom of
religion; freedom of speech. It also embraces right of self-defense against
unlawful violence; right to acquire and enjoy property; right to acquire useful
knowledge; right to carry on business; right to earn livelihood in any lawful
calling; right to emigrate, and if a citizen, to return; right to engage in lawful
business, to determine the price of one's labor, and to fix the hours when one's
place of business shall be kept open; right to enjoy to the fullest extent the
privileges and immunities given or assured by law to people living within the
country; right to forswear allegiance and expatriate oneself; right to freely buy
and sell as others may; right to labor; right to marry and have a family; right to
pursue chosen calling; right to use property according owner's will. Liberty on
its positive side denotes the fullness of individual existence; on its negative side
it denotes the necessary restraint on all, which is needed to promote the
greatest possible amount of liberty for each. Black's Law Dictionary, Revised
Fourth Edition, 1968, pp. 1064-1066

Claim # 391. The 5th Amendment to the Federal Constitution secures all
persons in their 'liberty,' and invalidates any legislation by Congress depriving
them of liberty 'without due process of law.' As thus used, 'liberty' means not
merely bodily liberty,-freedom from physical duress,-but in effect comprehends
substantially all those personal and civil rights of the citizen which it is meant to
place beyond the power of the general government to destroy or impair. As
used in the 5th constitutional Amendment, 'liberty' includes equality of rights
under the law, and secures citizens similarly situated against discriminations
between them, which are arbitrary and without foundation in reason.
SLAUGHTERHOUSE CASES, 83 U. S. 36 (1872); UNITED STATES V.
CRUIKSHANK, 92 U. S. 542 (1875); MUNN V. ILLINOIS, 94 U. S. 113 (1876);
BUTCHERS' UNION CO. V. CRESCENT CITY CO., 111 U. S. 746 (1884); YICK
WO V. HOPKINS, 118 U. S. 356 (1886); GULF, COLORADO & SANTA FE RY.
CO. V. ELLIS, 165 U. S. 150 (1897); ALLGEYER V. LOUISIANA, 165 U. S. 578
(1897); UNITED STATES V. JOINT TRAFFIC ASSOCIATION, 171 U. S. 505
(1898); ADDYSTON PIPE & STEEL CO. V. UNITED STATES, 175 U. S. 211
(1899); NORTHERN SECURITIES CO. V. UNITED STATES, 193 U. S. 197 (1904)

Claim # 392. 'The people of each State compose a State, having its own
government, and endowed with all the functions essential to separate and
independent existence,' and that, 'without the States in union, there could be no
such political body as the United States.' TEXAS V. WHITE, 74 U. S. 700 (1868);
NORTHERN SECURITIES CO. V. UNITED STATES, 193 U. S. 197 (1904)

The Tenth Amendment of the Constitution declares that "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."

Claim # 393. Liberty, it has been well said, depends not so much upon the
absence of actual oppression as on the existence of constitutional checks upon
the power to oppress. These checks should not be destroyed or impaired by
judicial decisions. MAXWELL V. DOW, 176 U. S. 581 (1900)

Claim # 394. It is the duty of the courts to be watchful for the constitutional
rights of the citizen. BOYD V. UNITED STATES, 116 U. S. 616 (1886);
MAXWELL V. DOW, 176 U. S. 581 (1900)

Claim # 395. The foremost obligation of the Supreme Court is to interpret the
Constitution in a manner that is faithful to its text.

Claim # 396. 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. MARBURY V. MADISON, 5
U.S. 137 (1803)

Claim # 397. Judges are oath-bound to rule in accordance with the Constitution,
not with prior opinions interpreting the Constitution. Charles J. Cooper, Stare
Decisis: Precedent and Principle in Constitutional Adjudication, 73 Cornell L.
Rev. 401, 408 (1988)

Claim # 398. Reversal is required if a prior judicial ruling should come to be


seen so clearly as error that its enforcement was for that very reason doomed.
PLANNED PARENTHOOD V. CASEY, 505 U.S. 833 (1992)
See also South Carolina v. Gathers, 490 U.S. 805, 825 (1989) (Scalia, J.,
dissenting) (“I would think it a violation of my oath to adhere to what I consider
a plainly unjustified intrusion upon the democratic process in order that the
Court might save face.”), overruled by Payne v. Tennessee, 501 U.S. 808 (1991);
see also William O. Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949)
(“A judge looking at a constitutional decision may have compulsions to revere
past history and accept what was once written. But he remembers above all else
that it is the Constitution which he swore to support and defend, not the gloss
which his predecessors may have put on it.”). The most important consideration
when examining the stare decisis value of a decision is the public's reliance
interest in that precedent. Stare decisis benefits society and legal institutions
"because it promotes the evenhanded, predictable, and consistent development
of legal principles, fosters reliance on judicial decisions, and contributes to the
actual and perceived integrity of judicial process." Payne v. Tennessee, 501 U.S.
808, 827 (1991). Where these interests are greater, stare decisis considerations
are correspondingly more important. Thus, "stare decisis concerns are at their
acme in cases involving property and contract rights." State Oil Co. v. Kahn, 522
U. S. 3, 20 (1997); Payne v. Tennessee, 501 U.S. 808, 828 (1991). Another
important consideration in deciding whether to uphold a decision is how well
the precedent guides those who must apply it. A precedent that proves to be
confusing and difficult to apply deserves much less stare decisis protection. See
United States v. Dixon, 509 U. S. 688, 712 (1993). "In constitutional questions,
where correction depends upon amendment and not upon legislative action this
Court throughout its history has freely exercised its power to reexamine the
basis of its constitutional decisions." Smith v. Allwright, 321 U.S. 649, 665
(1944). "When governing decisions are unworkable or are badly reasoned, 'this
Court has never felt constrained to follow precedent.'" Payne v. Tennessee, 501
U.S. 808, 827 (1991) (quoting Smith v. Allwright, 321 U. S. 649, 665 (1944)).
The Court often will look, however, beyond de novo fidelity to the Constitution
in determining whether to retain a wrongly decided case. See, e.g., Burnet v.
Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)
(explaining that whether to retain follow or depart from precedent “is a question
entirely within the discretion of the court, which is again called upon to
consider a question once decided.”); Arizona v. Rumsey, 467 U.S. 203, 212
(1984) (requiring a “special justification” before reversing a wrongly decided
case).

Claim # 399. Courts are entrusted with the duty of upholding the rule of law in
the face of political or popular attempts to erode it.

As Justice Harlan stated: “it will be an evil day for American liberty if the theory
of a government outside of the supreme law of the land finds lodgment in our
constitutional jurisprudence. No higher duty rests upon this court than to exert
its full authority to prevent all violation of the principles of the Constitution.”
Downes v. Bidwell, 182 U.S. 244, 382 (1901)
Claim # 400. The rule of law broadly encompasses both “procedural and
substantive” limitations on government power. It is generally agreed that the
rule of law requires: 1) the supremacy of legal authority over officials as well as
ordinary citizens; and 2) the availability of the courts to enforce the law and
employ fair procedures. When officials act to deprive individuals of liberty
without legal authority and seek to deny the availability of the courts to review
their actions, the rule of law is violated. Diane P. Wood, The Rule of Law in
Times of Stress, 70 U. CHI. L. REV. 455, 457 (2003); Richard H. Fallon, Jr., “The
Rule of Law” as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1, 8
(1997)

Claim # 401. Our system is a system of checks and balances. UNITED STATES
V. NIXON, 418 U. S. 683 (1974)

Claim # 402. Courts and their procedural safeguards were established by our
founders to protect civil liberties. EX PARTE QUIRIN, 317 U. S. 1 (1942)

It has been a hallmark of Anglo-American legal tradition that an independent


and impartial judiciary be available to protect against abuses of power carried
out by the Executive. The guarantee that no man should be deprived of his
liberty or property without review by the judiciary was extracted from King John
and enshrined in the Magna Carta. See Marbury v. Madison, 5 U.S. (1 Cranch)
137, 163 (1803): “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.” Cf. Romer v. Evans, 517 U.S. 620, 633 (1996): “Central both to the
idea of the rule of law and to our own Constitution's guarantee of equal
protection is the principle that government and each of its parts remain open
on impartial terms to all who seek its assistance.” Courts must also remain
faithful to the rule of law, particularly when the popular political will calls for its
elimination. In a case related to the treason trial of former Vice-President Aaron
Burr, Chief Justice Marshall recognized that circumstances in which popular
passions are high required more from the judiciary: “as there is no crime which
can more excite and agitate the passions of men than treason, no charge
demands more from the tribunal before which it is made, a deliberate and
temperate inquiry.” Ex parte Bollman, 8 U.S. (4 Cranch) 75, 125 (1807)

Claim # 403. The rule of law demands that the judicial process function in both
times of crises and times of calm.

Chief Judge Cranch’s words in United States v. Bollman, 24 F.Cas. 1189, 1192
(C.C.D.C. 1807) (No. 14,622), provide guidance in these proceedings: in times
like these, when the public mind is agitated, when wars, and rumors of wars,
plots, conspiracies and treasons excite alarm, it is the duty of a court to be
peculiarly watchful lest the public feeling should reach the seat of justice, and
thereby precedents be established which may become the ready tools of faction
in times more disastrous. The worst of precedents may be established from the
best of motives. We ought to be upon our guard lest our zeal for the public
interest lead us to overstep the bounds of the law and the constitution; for
although we may thereby bring one criminal to punishment, we may furnish the
means by which an hundred innocent persons may suffer. The constitution was
made for times of commotion. In the calm of peace and prosperity there is
seldom great injustice. Dangerous precedents occur in dangerous times. It then
becomes the duty of the judiciary calmly to poise the scales of justice, unmoved
by the arm of power, undisturbed by the clamor of the multitude. Whenever an
application is made to us in our judicial character, we are bound, not only by
the nature of our office, but by our solemn oaths, to administer justice,
according to the laws and constitution of the United States. No political motives,
no reasons of state, can justify a disregard of that solemn injunction. In cases of
emergency it is for the executive department of the government to act upon its
own responsibility, and to rely upon the necessity of the case for its justification;
but this court is bound by the law and the constitution in all events.

Claim # 404. The Constitution is applied equally in war and in peace, and covers
with the shield of its protection all classes of men, at all times, and under all
circumstances. EX PARTE MILLIGAN, 71 U. S. 2 (1866); UNITED STATES V.
ROBEL, 389 U. S. 258 (1967)

Claim # 405. It is better that all things be regulated by law, than left to be
decided by judges: and this for three reasons. First, because it is easier to find a
few wise men competent to frame right laws, than to find the many who would
be necessary to judge aright of each single case. Secondly, because those who
make laws consider long beforehand what laws to make; whereas judgment on
each single case has to be pronounced as soon as it arises: and it is easier for
man to see what is right, by taking many instances into consideration, than by
considering one solitary fact. Thirdly, because lawgivers judge in the abstract
and of future events; whereas those who sit in judgment of things present,
towards which they are affected by love, hatred, or some kind of cupidity;
wherefore their judgment is perverted. Summa Theologica, I, II, Q. 95, art. I,
quoting Aristotle, Rhetoric, i, I

Claim # 406. The Constitution is a mere thing of wax in the hands of the
judiciary, which they may twist, and shape into any form they please. Thomas
Jefferson to Spencer Roane, expressing his apprehension over a judiciary
accountable to no one. September 6, 1819. ME 15:212

Claim # 407. The Constitution meant that its coordinate branches should be
checks on each other. But the opinion which gives to the judges the right to
decide what laws are constitutional and what not, not only for themselves in
their own sphere of action but for the Legislature and Executive also in their
spheres, would make the Judiciary a despotic branch. Thomas Jefferson to
Abigail Adams, 1804. ME 11:51
Claim # 408. It is necessary to introduce the people into every department of
government as far as they are capable of exercising it, and that this is the only
way to insure a long-continued and honest administration of its powers. Thomas
Jefferson to Abbe Arnoux, 1789. ME 7:422, Papers 15:283

Claim # 409. The execution of the laws is more important than the making of
them. However, it is best to have the people in all the three departments, where
that is possible. Thomas Jefferson to Abbe Arnoux, 1789. ME 7:423, Papers
15:283

Claim # 410. The right of representation in the legislature is a right inestimable


to the people, and formidable to tyrants only. Thomas Jefferson: Declaration of
Independence, 1776. ME 1:31, Papers 1:430

Claim # 411. The people, being the only safe depository of power, should
exercise in person every function which their qualifications enable them to
exercise consistently with the order and security of society. We now find them
equal to the election of those who shall be invested with their executive and
legislative powers, and to act themselves in the judiciary as judges in questions
of fact. The range of their powers ought to be enlarged. Thomas Jefferson to
Walter Jones, 1814. ME 14:47

Claim # 412. We shall secure the continuance of purity in our government by


the salutary, peaceable, and regular control of the people. Thomas Jefferson to
Samuel Kercheval, 1816. ME 15:71

Claim # 413. It is an axiom of eternal truth in politics, that whatever power in


any government is independent [unchecked], is absolute also: in theory only at
first while the spirit of the people is up, but in practice as fast as that relaxes.
Thomas Jefferson to Spencer Roane, 1819. ME 15:213

Claim # 414. If the judges are made independent they will become a dangerous
body. Nathaniel Chipman, The Debates and Proceedings in the Congress of the
United States (Washington: Gales & Seaton, 1851), 7th Congress, 1st Session, p.
131, January 19, 1802

Claim # 415. The independence of the judiciary so much desired will – if


tolerated – soon become something like supremacy. They will, indeed, form the
main pillar of this goodly fabric; they will soon become the only remaining
pillar, and they will presently be so strong as to crush and absorb the others into
their solid mass. The Debates and Proceedings in the Congress of the United
States (Washington: Gales & Seaton, 1851), 7th Congress, 1st Session, p. 63,
January 13, 1802
Claim # 416. Every human being and every human institution will tend to abuse
its legitimate powers unless these are controlled by checks and balances, in
which the holders of office are not merely encouraged but compelled to take
account of interests and views which differ from their own.

Claim # 417. The use of checks and balances in the forms of government, is to
create delays and multiply diversities of interests, by which the tendency on a
sudden to violate them may be counteracted. The Works of John Adams, vol. 5
(Defence of the Constitutions Vols. II and III) [1851]

Claim # 418. The judiciary has no influence over either the sword or the purse,
no direction either of the strength or of the wealth of the society, and can take
no active resolution whatever. It may truly be said to have neither FORCE nor
WILL, but merely judgment; and must ultimately depend upon the aid of the
executive for the efficacy of its judgments. The judiciary, from the nature of its
functions, will always be the least dangerous to the political rights of the
Constitution. The judiciary is, beyond comparison, the weakest of the three
departments of power and the general liberty of the people can never be
endangered from that quarter. James Madison, John Jay & Alexander Hamilton,
The Federalist (Philadelphia: Benjamin Warner, 1818), pp. 419-420

Claim # 419. Congress can establish legislatively a court, and thereby create a
judge; so they can legislatively abolish the court and eventually annihilate the
officer. The inferior courts are creatures of the legislature, and that the creature
must always be in the power of the creator – that he who createth can destroy.
Robert Wright, The Debates and Proceedings in the Congress of the United
States (Washington: Gales & Seaton, 1851), Seventh Congress, 1st Session, p.
114, January 15, 1802

Claim # 420. The judges must interpret the laws; they ought not to be
legislators. The Records of the Federal Convention of 1787, Max Farrand, editor
(New Haven: Yale University Press, 1911), Vol. I, p. 108, from Rufus King’s
records of the Convention from Monday, June 4, 1787

Claim # 421. The opinion which gives to the judges the right to decide what
laws are constitutional and what not, not only for themselves in their own
sphere of action, but for the Legislature and Executive also in their spheres,
would make the Judiciary a despotic branch. The Writings of Thomas Jefferson,
Andrew. A. Lipscomb, editor (Washington DC: The Thomas Jefferson Memorial
Association, 1904), Vol. XI, p. 51, to Mrs. John Adams, September 11, 1804

Claim # 422. To consider the judges as the ultimate arbiters of all constitutional
questions is a very dangerous doctrine indeed, and one which would place us
under the despotism of an oligarchy. Our judges are as honest as other men and
not more so. They have, with others, the same passions for party, for power, and
the privilege of their corps. Their maxim is boni judicis est ampliare
jurisdictionem, and their power the more dangerous as they are in office for life
and not responsible, as the other functionaries are, to the elective control. The
Constitution has erected no such single tribunal, knowing that to whatever
hands confided, with the corruptions of time and party, its members would
become despots. It has more wisely made all the departments co-equal and co-
sovereign within themselves. Writings of Thomas Jefferson, Andrew A.
Lipscomb, editor (Washington DC: The Thomas Jefferson Memorial Association,
1904), Vol. XV, p. 277, to William Charles Jarvis, September 28, 1820

Claim # 423. Refusing or not refusing to execute a law, to stamp it with its final
character makes the Judiciary department paramount in fact to the Legislature,
which was never intended and can never be proper. James Madison, Letters and
Other Writings of James Madison (New York: R. Worthington, 1884), Vol. 1, p.
194, “Remarks on Mr. Jefferson’s Draught of a Constitution for Virginia,”
October 1788

Claim # 424. There is not a syllable in the Constitution which directly empowers
the national courts to construe the laws according to the spirit of the
Constitution. James Madison, John Jay & Alexander Hamilton, The Federalist
(Philadelphia: Benjamin Warner, 1818), p. 436

Claim # 425. Each public officer who takes an oath to support the Constitution
swears that he will support it as he understands it, and not as it is understood
by others. The authority of the Supreme Court must not, therefore, be permitted
to control the Congress or the Executive. James D. Richardson, A Compilation of
the Messages and Papers of the Presidents (Published by Authority of Congress,
1899), Vol. III, p. 1145, “Veto Message,” July 10, 1832

Claim # 426. If the policy of the government upon vital questions affecting the
whole people is to be irrevocably fixed by decisions of the Supreme Court, the
instant they are made the people will have ceased to be their own rulers, having
resigned their government into the hands of that eminent tribunal. The Works of
Abraham Lincoln, John H. Clifford, editor (New York: The University Society
Inc., 1908), Vol. V, pp. 142-143, “First Inaugural Address,” March 4, 1861

Claim # 427. The offenses to which the power of impeachment has been and is
ordinarily applied as a remedy are aptly termed political offences, growing out
of personal misconduct, or gross neglect, or usurpation, or habitual disregard of
the public interests. Joseph Story, Commentaries on the Constitution of the
United States (Boston: Hilliard, Gray & Co, 1833), Vol. II, pp. 233-234, Sec. 762

Claim # 428. A Judge giving a legal opinion contrary to the opinion of the
legislature is liable to impeachment. The Papers of John Marshall, Charles F.
Hobson, editor (Chapel Hill, VA: The University of North Carolina Press, 1990),
Vol. VI, p. 347, to Samuel Chase, January 23, 1805
Claim # 429. Impeachments are confined to political characters, to political
crimes and misdemeanors, and to political punishments. The Works of the
Honorable James Wilson, Bird Wilson, editor (Philadelphia: Bronson and
Chauncey, 1804), Vol. II, p. 166, “Of the Constitution of the United States and of
Pennsylvania—of the Legislative Department.”

In our democracy, decisions on major political issues should be made by the


people and their elected representatives, not by unelected judges. This has been
the prevailing and respectable point of view since our nation's founding. The
alternative view -- that judges can make decisions freely, without being
constrained by the language of the Constitution or statutes -- is an extreme
position shared by almost no one. That's the view that should be described as
extremist, because it lets judges do whatever they want, regardless of what the
law says, and that should frighten Americans on both ends of the political
spectrum. As Thomas Jefferson cautioned, if judges were allowed to interpret
the law to be what they wish, the Constitution would be "a mere thing of wax in
the hands of the Judiciary, which they may twist and shape into any form they
please." The checks and balances among the three branches collapse if the
Supreme Court claims to be the final arbiter of constitutional behavior. Judicial
supremacy reflects the British tradition, at least of the 18th century, that the
judicial branch be free of political interference, plus the natural law tradition
(more emphasized in America than in Britain) that judged law by supposedly
indisputable moral standards and a common law tradition that the law would
not countenance an absurdity. You might say that since medieval European
monarchs were, above all, judges and war leaders, the Supreme Court in our
mixed polity is the monarchical aspect of government, sharing the powers of
monarchical sovereignty with the President (who gets the war powers part, plus
some powers related to foreign affairs), except that the President is not elected
for life, Supreme Court judges are. Like monarchs, when judges violate
standards the social reaction is unpredictable because there is no defined
method for dealing with them. By the same logic, revolutions are justified by
arguments of natural law.

Article VI declares the Constitution to be the supreme law of the land.


Amendments are automatically considered a part of the Constitution when they
are properly ratified by the states. In addition, all laws consistent with the
powers delegated to the federal government and all treaties made under the
authority of the United States and properly ratified by the Senate become a part
of the Constitution. Laws that are contrary to the requirements of the
Constitution are binding, subject to being set aside by the courts. All judges are
bound by oath to uphold the Constitution and have the obligation to declare any
laws contrary to it as unconstitutional and void. Judges who refuse to uphold the
Constitution or who look for hidden meanings in its language in order to
support their own political and social agendas are violating their oath of office.
Those who flagrantly do so, under the provisions of the Constitution, are to be
removed from office by impeachment. When the Founding Fathers gave federal
judges a lifetime appointment, it was assumed they would be removed from
office by impeachment for violating their oath of office. This is the main
argument used by Alexander Hamilton against the anti-federalists who feared
the establishing of a federal judiciary with lifetime tenure. “And the inference is
greatly fortified by the consideration of the important constitutional check
which the power in instituting impeachments would give to that body
[Congress] upon the members of the judicial department.” (Federalist 81) A
major obstacle to the impeachment of judges is the controversy concerning
what constitutes an “impeachable offense”. President Gerald Ford when he was
House Minority Leader in 1970 defined the criteria as he saw it: "An
impeachable offense is whatever a majority of the House of Representatives
considers it to be at a given moment in history." The Constitution provides the
authority for impeachment, but gives little help in determining the threshold for
when it should be employed. Article III, Section 1 states, “the Judges, both of
the supreme and inferior Courts, shall hold their Offices during good
Behavior…” The phrase “during good behavior” refers to their performance in
office, not their social behavior and implies their vulnerability to impeachment.
Article IV, Section 2 defines an impeachable offense as “treason, bribery, or
other high Crimes and Misdemeanors.” The term “High Crimes and
Misdemeanors” is confusing to most of us because it is not a part of our normal
vocabulary. In criminal law, offenses are categorized as “felonies” and
“misdemeanors” according to their gravity. However, “High Crimes and
Misdemeanors” does not come from criminal law, but from English Common
Law and is not directly related to statutory offenses. The term is used to refer to
offenses not necessarily covered by criminal law and is related to the status of
the offender, not the gravity of the offense. Persons holding high office are held
to a different standard than ordinary citizens. In general, an impeachable
offense might be thought of as one that violates the person’s oath of office.
While not every violation of one’s oath constitutes an impeachable offense,
every impeachable offense involves a violation of their oath of office. The higher
the office, the more serious the offense. The failure of the Legislature to hold
judges accountable for violations of the Constitution leaves the American people
at the mercy of every whim of the courts. This was the condition Thomas
Jefferson complained about in a letter to a Judge Roan dated September 6,
1819. In the absence of a constitutional amendment, providing for a means of
reining in the actions of the courts, impeachment is the only defense against
judicial tyranny.

Claim # 430. Those who framed our Constitution and the Bill of Rights were
ever aware of subtle encroachments on individual liberty. They knew that
illegitimate and unconstitutional practices get their first footing by silent
approaches and slight deviations from legal modes of procedure. BOYD V.
UNITED STATES, 116 U. S. 616 (1886)

Claim # 431. Illegitimate and unconstitutional practices get their first footing by
silent approaches and slight deviations from legal modes of procedure. This can
only be obviated by adhering to the rule that constitutional provisions for the
security of persons and property should be liberally construed. A close and
literal construction deprives them of half their efficacy, and leads to gradual
depreciation of the right, as if it consisted more in sound than in substance. It is
the duty of the Courts to be watchful for the Constitutional Rights of the
Citizens, and against any stealthy encroachments thereon. Their motto should
be Obsta Principiis. BOYD V. UNITED STATES, 116 U. S. 616 (1886);
SILVERMAN V. UNITED STATES, 365 U. S. 505 (1961)

Claim # 432. The Supreme Court's constitutional decisions are grounded upon
fundamental principles whose content does not change dramatically from year
to year, but whose meanings are altered slowly and subtly as generation
succeeds generation. YATES V. AIKEN, 484 U. S. 211 (1988)

Claim # 433. On the whole, what distinguishes the rule of law from the
dictatorship of a shifting Supreme Court majority is the absolutely indispensable
requirement that judicial opinions be grounded in consistently applied
principle. That is what prevents judges from ruling now this way, now that–
thumbs up or thumbs down–as their personal preferences dictate. MCCREARY
COUNTY V. AMERICAN CIVIL LIBERTIES UNION OF KY. (03-1693) 545 U.S.
844 (2005)

Claim # 434. The germ of dissolution of our Federal Government is in the


constitution of the Federal Judiciary, working like gravity by night and by day,
gaining a little today and a little tomorrow, and advancing its noiseless step like
a thief over the field of jurisdiction until all shall be usurped. Thomas Jefferson
to Charles Hammond, 1821. ME 15:331

Claim # 435. The judiciary of the United States is the subtle corps of sappers
and miners constantly working under ground to undermine the foundations of
our confederated fabric. They are construing our Constitution from a co-
ordination of a general and special government to a general and supreme one
alone. This will lay all things at their feet, and they are too well versed in
English law to forget the maxim, 'boni judicis est ampliare jurisdictionem.'
Thomas Jefferson to Thomas Ritchie, 1820. ME 15:297

Claim # 435. The Federal Judiciary, like gravity, ever acting with noiseless foot
and unalarming advance, gaining ground step by step and holding what it gains,
is engulfing insidiously the special governments into the jaws of that which
feeds them. Thomas Jefferson to Spencer Roane, 1821. ME 15:326

Claim # 437. Contrary to all correct example, the Federal Judiciary are in the
habit of going out of the question before them, to throw an anchor ahead and
grapple further hold for future advances of power. They are then in fact the
corps of sappers and miners, steadily working to undermine the independent
rights of the States and to consolidate all power in the hands of that government
in which they have so important a freehold estate. The judges are practicing on
the Constitution by inferences, analogies, and sophisms, as they would on an
ordinary law. They do not seem aware that it is not even a Constitution formed
by a single authority and subject to a single superintendence and control, but
that it is a compact of many independent powers, every single one of which
claims an equal right to understand it and to require its observance. Thomas
Jefferson: Autobiography, 1821. ME 1:121; Thomas Jefferson to Edward
Livingston, 1825. ME 16:113

Claim # 438. At the establishment of our Constitutions, the judiciary bodies


were supposed to be the most helpless and harmless members of the
government. Experience, however, soon showed in what way they were to
become the most dangerous; that the insufficiency of the means provided for
their removal gave them a freehold and irresponsibility in office; that their
decisions, seeming to concern individual suitors only, pass silent and unheeded
by the public at large; that these decisions nevertheless become law by
precedent, sapping by little and little the foundations of the Constitution and
working its change by construction before any one has perceived that that
invisible and helpless worm has been busily employed in consuming its
substance. In truth, man is not made to be trusted for life if secured against all
liability to account. Thomas Jefferson to A. Coray, 1823. ME 15:486

Claim # 439. This member of the government has proved that the power of
declaring what the law is, ad libitum, by sapping and mining, slyly, and without
alarm, the foundations of the Constitution, can do what open force would not
dare to attempt. Thomas Jefferson to Edward Livingston, 1825. ME 16:114

Claim # 440. The dignity and stability of government in all its branches, the
morals of the people and every blessing of society depend so much upon an
upright and skillful administration of justice, that the judicial power ought to be
distinct from both the legislative and executive and independent upon both, that
so it may be a check upon both, as both should be checks upon that. Thomas
Jefferson to George Wythe, 1776. Papers 1:410

Claim # 441. We claim that there are very obvious reasons, why these powers
should be committed to separate departments in the state, and not be entrusted
unitedly to one man, or body of men. Different abilities are necessary for the
making, judging, and executing of laws. To commit their exercise to a single
man, or body of men, essentially constitutes a monarchy, or aristocracy, for the
time being. By giving them the power of avoiding all constitutional enquiry, it
places them above a sense of accountability for their conduct. They have it in
their power, either in the enacting, the interpretation, or the execution of the
laws, to screen themselves, and every member of their body, from account or
punishment. The situation itself suggests to them, views and interests, different
from those of the people, and leaves no common judge between them. It places
them, in respect to the people, in that state of independence, which is often
called a state of nature. In such case, the people, hopeless under oppression
[domination], sink into a state of abject slavery, or roused to a sense of their
injuries, assume their natural right, in such situation, oppose violence to
violence, and take exemplary vengeance of their oppressors. Nathaniel
Chipman, Sketches of the Principles of Government (1793)

Claim # 442. The Constitution of the United States having divided the powers of
government into three branches, legislative, executive, and judiciary, and
deposited each with a separate body of magistracy, forbidding either to
interfere in the department of the other, the executive are not at liberty to
intermeddle in a question that must be ultimately decided by the Supreme
Court. Thomas Jefferson to Charles Hellstedt, 1791. ME 8:126

Claim # 443. Each department is truly independent of the others and has an
equal right to decide for itself what is the meaning of the Constitution in the
cases submitted to its action; and especially where it is to act ultimately and
without appeal. Thomas Jefferson to Spencer Roane, 1819. ME 15:214

Claim # 444. Each of the three departments has equally the right to decide for
itself what is its duty under the Constitution without regard to what the others
may have decided for themselves under a similar question. Thomas Jefferson to
Spencer Roane, 1819. ME 15:215

The Founding Fathers knew the dangers of a court system that would try to take
control of the rest of the government. In the minds of the Founders, the
legislative, executive, and judicial branches all interpret the Constitution. In
other words, the President and the members of Congress pledge to uphold the
Constitution, not the Court’s opinion of the Constitution. See U.S. CONST. art
VI, cl. 3. Little by little, Americans today are waking up to judicial tyranny, and
are calling for a change. The legal profession plays a crucial function in
assisting that awakening. The vital way that citizens can facilitate the change, of
course, is to take an active and informed role in the elections of those who take
part in appointing judges (that is, the President and the senators). Citizens
should make the candidate’s judicial philosophy a key element of consideration.
Citizens should also be informed that there exists a remedy precisely for judicial
tyranny, found in the provisions of the Constitution. Article III of the
Constitution outlines the structure of the federal judiciary. That article states:
“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.” Id. art. III, § 1. Thus, even in the very making of the judiciary, the
Founding Fathers put Congress in control of the courts. The Constitution also
gives the conditions of continued employment for judges: “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.” Id. This sentence,
giving judges job security during good behavior, implies the possibility of
removing a judge from office for bad behavior. The judicial tyranny that we are
familiar with today is certainly not good behavior. The second section of Article
III describes the jurisdiction of the courts. The first clause describes the
different types of cases that all federal courts have the power to hear, such as
cases involving treaties or cases between two states. Id. § 2, cl. 1. The second
clause describes the jurisdiction of the Supreme Court in particular, stating that
it has original jurisdiction in a certain small class of cases and “in all the other
Cases [mentioned in Clause 1], the supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.” Id. cl. 2. What is encouraging for
people to know here is that there really is such a thing as self-governance. The
sense that America is being governed by a small group of unelected and
unaccountable people, while it may in fact correspond in some ways to reality,
does not represent an unchangeable situation. Article III, Section 2 clearly gives
Congress the right to limit the jurisdiction of the Court, and Congress has at
times used that power. See H.R. REP. NO. 108-614, at 2 (2004). A remedy to
abuses by Federal judges has long been understood to lie, among other places,
in Congress’s authority to limit Federal court jurisdiction. Congress has always
made clear that it can limit the jurisdiction of the Federal courts, starting with
the very first Judiciary Act of 1789. The first Congress made clear that Federal
court jurisdiction over constitutional claims was not unlimited. More bills have
been introduced in recent years to continue to use that power, and the very
possibility of it gives people hope.

Claim # 445. The question of interpretation is inevitably affected by politics.


Ideally, the Constitution should be given a consistent interpretation. But as the
Founding Fathers understood well, the temptations of office are often too great
to expect a uniform adherence to principle in all situations. Those who possess
political power may be inclined to favor a broad interpretation of the
Constitution in order to carry out their programs, whereas those who are out of
power may be inclined to argue for a narrow interpretation in order to block
those programs. The task of the principled statesman and judge is to resist
those temptations and consistently defend the proper interpretation of the
Constitution—even when it results in the advancement of a particular social,
economic, or political policy that he personally opposes. But perhaps too few
public leaders are willing to put principle ahead of personal gain or
partisanship. This is not to suggest that those who argue for a particular
interpretation in any given situation may be insincere, but merely to put the
student on notice that, in order to evaluate a constitutional interpretation fairly
and honestly, he should judge it on its own merits and not by the policy it
promotes. Principled constitutionalism is resisting the temptation to twist the
meaning of the Constitution to suit a particular political goal, no matter how
worthy, and letting the chips fall as they may.

Claim # 446. The faithful interpreter must recur to the sense in which the
Constitution was accepted and ratified. In that sense alone it is the legitimate
Constitution. James Madison, The Writings of James Madison, ed. Gaillard
Hunt, vol. 9 (New York: G.P. Putnam’s Sons, 1910), p. 191

It is only by recurring to the original meaning intended by those who created


the Constitution that we can make sense of and maintain the notion that we seek
to establish, in the words of the Federalist, good government from reflection
and choice. Federalist 1. It is only by carrying ourselves back to the time when
the constitution was adopted, recollecting the spirit manifested in the debates,
and seeking the most probable meaning in which it was passed, rather than by
seeing what meaning may be squeezed out of the text, or invented against it,
that we can avoid rendering the Constitution a blank paper by construction.
Thomas Jefferson, The Writings of Thomas Jefferson, ed. H. A. Washington, vol.
7 (New York: Derby & Jackson, 1859), p. 296; Thomas Jefferson, The Writings of
Thomas Jefferson, ed. Paul Leicester Ford, vol. 8 (New York: G.P. Putnam’s
Sons, 1899), p. 247

Claim # 447. Originalism is implicit in the design of a written constitution. The


adoption of a written constitution is justified by the desire to fix certain
principles and raise them over others as having special weight. The writing of a
constitution allows the people to assemble and, in a moment of reflection and
deliberation, adopt those specified principles. Originalism makes sense of the
fact that it was this text and no other that was adopted and ratified, and it
channels the judicial inquiry into discovering what was meant by those who
adopted this text. A jurisprudence of originalism recognizes and emphasizes
that the Constitution is a communication, an instruction, from an authorized
lawgiver, the sovereign people, and that the task of the faithful interpreter is to
discover what that instruction was and to apply it as the situation demands.

The constitutional text is an act of communication, of instruction, from the


supreme lawmaker within the American constitutional system to government
officials. It conveys their intentions as to what power government officials would
have, how that power would be organized, to what legitimate purposes that
power could be used, and what limitations there would be on that power.

Claim # 448. Since the government is the mere “creature” of the Constitution,
its members—legislators and judges alike—are not entitled to change a word of
that fundamental law except through the designated procedures of amendment
laid out in Article V. It is not for them to assume the power of creator, of
constitutional lawmaker, by disregarding or altering the instructions laid down
by the framers and ratifiers of the constitutional text. As Alexander Hamilton
pointed out in describing the duties of legislators and judges under the
Constitution, it is binding on them until the people have, by some solemn and
authoritative act, annulled or changed the established form, and no
presumption, or even knowledge of their sentiments can warrant their
representatives in a departure from it prior to such an act. Federalist 78
Claim # 449. The Constitution of a State is stable and permanent, not to be
worked upon by the temper of the times, nor to rise and fall with the tide of
events: notwithstanding the competition of opposing interests, and the violence
of contending parties, it remains firm and immoveable, as a mountain amidst
the strife of storms, or a rock in the ocean amidst the raging of the waves. The
Constitution is the basis of legislative authority; it lies at the foundation of all
law, and is a rule and commission by which both Legislators and Judges are to
proceed. VANHORNE'S LESSEE v. DORRANCE, 2 U.S. 304 (1795)

Claim # 450. The Constitution is certain and fixed, and it can be revoked or
altered only by the authority that made it. But if the Constitution is the
fundamental law because it is the deliberate voice of the people, and if it is
unalterable, but by the same high power which established it, then a
jurisprudence of originalism is required. The Supreme Court has recently drawn
the obvious conclusion: If Congress could define its own powers by altering the
Fourteenth Amendment’s meaning, no longer would the Constitution be
superior paramount law, unchangeable by ordinary means. It would be on a
level with ordinary legislative acts, and, like other acts alterable when the
legislature shall please to alter it. VanHorne’s Lessee v. Dorrance, at 308; CITY
OF BOERNE V. FLORES, 521 U.S. 507 (1997), quoting from Marbury v.
Madison, at 177

Claim # 451. In expounding the Constitution of the United States, every word
must have its due force, and appropriate meaning; for it is evident from the
whole instrument, that no word was unnecessarily used, or needlessly added.
The many discussions which have taken place upon the construction of the
constitution have proved the correctness of this proposition, and shown the high
talent, the caution, and the foresight of the illustrious men who framed it. Every
word appears to have been weighed with the utmost deliberation, and its force
and effect to have been fully understood. HOLMES V. JENNISON, 39 U. S. 540
(1840); WRIGHT V. UNITED STATES, 302 U. S. 583 (1938)

Claim # 452. When a strict interpretation of the Constitution, according to the


fixed rules which govern the interpretation of laws, is abandoned, and the
theoretical opinions of individuals are allowed to control its meaning, we have
no longer a Constitution; we are under the government of individual men who,
for the time being, have power to declare what the Constitution is according to
their own views of what it ought to mean. SCOTT V. SANDFORD, 60 U. S. 393
(1856)

Claim # 453. The Constitution is a written instrument, and, as such, its meaning
does not alter. That which it meant when adopted, it means now. Its language,
as a grant of power to the national government, is general and, as changes
come in social and political life, it embraces all new conditions within the scope
of the powers conferred. In interpreting the Constitution, recourse must be had
to the common law and also to the position of the framers of the instrument and
what they must have understood to be the meaning and scope of the grants of
power contained therein must be considered. SOUTH CAROLINA V. UNITED
STATES, 199 U. S. 437 (1905)

The Constitution is a written instrument. As such, its meaning does not alter.
That which it meant when adopted, it means now. Being a grant of powers to a
government, its language is general, and, as changes come in social and
political life, it embraces in its grasp all new conditions which are within the
scope of the powers in terms conferred. In other words, while the powers
granted do not change, they apply from generation to generation to all things to
which they are in their nature applicable. This in no manner abridges the fact of
its changeless nature and meaning. Those things which are within its grants of
power, as those grants were understood when made, are still within them, and
those things not within them remain still excluded. SOUTH CAROLINA V.
UNITED STATES, 199 U. S. 437, 448-449 (1905)

Claim # 454. While the Constitution remains unaltered, it must be construed


now as it was understood at the time of its adoption; that it is not only the same
in words, but the same in meaning, and as long as it continues to exist in its
present form, it speaks not only in the same words, but with the same meaning
and intent with which it spoke when it came from the hands of its framers, and
was voted on and adopted by the people of the United States. Any other rule of
construction would abrogate the judicial character of this court, and make it the
mere reflex of the popular opinion or passion of the day. The whole aim of
construction, as applied to a provision of the Constitution, is to discover the
meaning, to ascertain and give effect to the intent, of its framers and the people
who adopted it. SCOTT V. SANDFORD, 60 U.S. 393 (1856); HOME BUILDING &
LOAN ASSN. V. BLAISDELL, 290 U.S. 398 (1934)

It is not only the same in words, but the same in meaning, and delegates the
same powers to the Government, and reserves and secures the same rights and
privileges to the citizen; and as long as it continues to exist in its present form,
it speaks not only in the same words, but with the same meaning and intent
with which it spoke when it came from the hands of its framers and was voted
on and adopted by the people of the United States. Any other rule of
construction would abrogate the judicial character of this court, and make it the
mere reflex of the popular opinion or passion of the day. It must also be
remembered that the framers of the Constitution were not mere visionaries,
toying with speculations or theories, but practical men, dealing with the facts of
political life as they understood them, putting into form the government they
were creating and prescribing, in language clear and intelligible, the powers
that government was to take. SCOTT V. SANDFORD, 60 U.S. 393 (1856);
SOUTH CAROLINA V. UNITED STATES, 199 U.S. 437 (1905)

Claim # 455. 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. MULLER V. OREGON, 208 U. S. 412 (1908)

Claim # 456. We are bound to interpret the constitution in the light of the law as
it existed at the time it was adopted. MATTOX V. UNITED STATES, 156 U. S.
237 (1895)

Claim # 457. We must place ourselves in the position of the men who framed
and adopted the Constitution, and inquire what they must have understood to
be the meaning and scope of its provisions. SOUTH CAROLINA V. UNITED
STATES, 199 U.S. 437 (1905)

Claim # 458. The necessities which gave birth to the Constitution, the
controversies which preceded its formation, and the conflicts of opinion which
were settled by its adoption, may properly be taken into view for the purpose of
tracing to its source any particular provision of the Constitution, in order
thereby to be enabled to correctly interpret its meaning. KNOWLTON V.
MOORE, 178 U. S. 41 (1900); EVANS V. GORE, 253 U. S. 245 (1920)

Claim # 459. Laws are made for men of ordinary understanding and should,
therefore, be construed by the ordinary rules of common sense. Their meaning
is not to be sought for in metaphysical subtleties which may make anything
mean everything or nothing at pleasure. Thomas Jefferson to William Johnson,
1823. ME 15:450

Claim # 460. Common sense is the foundation of all authorities, of the laws
themselves, and of their construction. Thomas Jefferson: Batture at New
Orleans, 1812. ME 18:92

Claim # 461. The Constitution was written to be understood by the voters; its
words and phrases were used in their normal and ordinary as distinguished
from technical meaning; where the intention is clear, there is no room for
construction and no excuse for interpolation or addition. The fact that an
instrument drawn with such meticulous care and by men who so well
understood how to make language fit their thought does not contain any such
limiting phrase is persuasive evidence that no qualification was intended.
UNITED STATES V. SPRAGUE, 282 U. S. 716 (1931); REID V. COVERT, 354 U.
S. 1 (1957)

Claim # 462. Where there is no ambiguity in the words, there is no room for
construction. UNITED STATES V. WILTBERGER, 18 U. S. 76 (1820)

Claim # 463. A statute is not a nose of wax to be changed from that which the
plain language imports. NLRB v. CATHOLIC BISHOP OF CHICAGO, 440 U.S.
490 (1979)
Claim # 464. There is no need to refer to the legislative history where the
statutory language is clear. The plain words and meaning of a statute cannot be
overcome by a legislative history which through strained processes of deduction
from events of wholly ambiguous significance, may furnish dubious bases for
inference in every direction. EX PARTE COLLET, 337 U.S. 55, 61 (1949)

Claim # 465. It is the text's meaning, and not the content of anyone's
expectations or intentions, that binds us as law. Laurence H. Tribe, Comment, in
Antonin Scalia, A Matter of Interpretation 66 (1997)

Claim # 466. When words are free from doubt, they must be taken as the final
expression of the legislative intent. CAMINETTI V. UNITED STATES, 242 U. S.
470 (1917)

Claim # 467. The interpreter stops searching for further evidence of legislative
intentions when the statutory text is clear. Further search, into legislative
history for example, is permissible only when the statutory text is ambiguous or
otherwise lacks a plain meaning. Adrian Vermeule, Three Strategies of
Interpretation, 42 San Diego L. Rev. 607, 614-15 (2005)

Claim # 468. The beginning point must be the language of the statute, and when
a statute speaks with clarity to an issue judicial inquiry into the statute's
meaning, in all but the most extraordinary circumstance, is finished. ESTATE
OF COWART V. NICKLOS DRILLING CO., 505 U.S. 469, 475 (1992)

Claim # 469. It is a fundamental principle of statutory construction (and, indeed,


of language itself) that the meaning of a word cannot be determined in isolation,
but must be drawn from the context in which it is used. SMITH v. UNITED
STATES, 508 U.S. 223 (1993)

Claim # 470. The rule in regard to the interpretation of a statute is well settled,
that where the words and language used in the act are free from doubt and
ambiguity, and express clearly, plainly and distinctly the intent of the law-
making power, there is no occasion to resort to other means of interpretation. It
is never permissible to interpret that which has no need of interpretation. The
language of the statute itself furnishes the best means of its own interpretation.

Claim # 471. If the language is clear, and admits of but one meaning, there is no
room for construction. It is not allowable to interpret that which has no need of
interpretation. In such a case any departure from the language used would be
an unjustifiable assumption of legislative power. American and English Ency. of
Law, vol. 23, page 298

Claim # 472. The language of the Constitution where clear and unambiguous
must be given its plain evident meaning. REID V. COVERT, 354 U. S. 1 (1957)
Claim # 473. When the legislature manifests a clear understanding of its own
intention, which intention consists with its words, courts are bound by it.
UNITED STATES V. PALMER, 16 U. S. 610 (1818)

Claim # 474. The primary and general rule of statutory construction is that the
intent of the lawmaker is to be found in the language that he has used. He is
presumed to know the meaning of words and the rules of grammar. The courts
have no function of legislation, and simply seek to ascertain the will of the
legislator. UNITED STATES V. GOLDENBERG, 168 U. S. 95 (1897)

Claim # 475. It is only in the construction of statutes whose terms give rise to
some ambiguity, or whose grammatical construction is doubtful, that courts can
exercise the power of controlling the language in order to give effect to what
they suppose to have been the real intention of the law-makers. Newell v.
People, 7 N.Y. 9; Bartstow v. Smith, Walk. Ch. 394; Bidwell v Whitaker, 1 Mich.
469; McCluskey v. Cromwell, 11 N.Y. 593

Claim # 476. On every question of construction we should carry ourselves back


to the time, when the constitution was adopted; recollect the spirit manifested in
the debates; and instead of trying to find, what meaning may be squeezed out of
the text, or invented against it, conform to the probable one, in which it passed.
Thomas Jefferson to William Johnson, 1823. ME 15:449; MCINTYRE V. OHIO
ELECTIONS COMM'N (93-986), 514 U.S. 334 (1995)

We discern "original intent", says Robert Bork, "by asking what the words of the
Constitution meant to reasonable men at the time of the ratification. In that
inquiry, we have not only the text itself but the assistance of a great many
secondary materials, such as the records of the Philadelphia Convention and the
debates of the time." (Hadley Arkes, Russell Hittinger, Willian Bentley Ball, and
Robert H. Bork, "Natural Law and the Law: An Exchange", First Things, May
1992, pp. 45, 53)

Claim # 477. The language of the Constitution is to be read not as barren words
found in a dictionary but as symbols of historic experience illumined by the
presuppositions of those who employed them. Not what words did Madison and
Hamilton use, but what was it in their minds which they conveyed? DENNIS V.
UNITED STATES, 341 U. S. 494 (1951)

Claim # 478. The Constitution must be construed with due regard to the intent
of the framers and the people adopting it, and the fundamental principle in
interpreting a constitutional provision is to give effect to that intent.

Claim # 479. The intention of the lawmaker constitutes the law. STEWART V.
KAHN, 78 U. S. 493 (1870)
Claim # 480. The true key for the construction of everything doubtful in a law is
the intention of the law-makers. This is most safely gathered from the words,
but may be sought also in extraneous circumstances provided they do not
contradict the express words of the law. Thomas Jefferson to Albert Gallatin,
1808. ME 12:59

Claim # 481. In the construction of a law, even in judiciary cases of meum et


tuum, where the opposite parties have a right and counterright in the very
words of the law, the Judge considers the intention of the lawgiver as his true
guide, and gives to all the parts and expressions of the law, that meaning which
will effect, instead of defeating, its intention. But in laws merely executive,
where no private right stands in the way, and the public object is the interest of
all, a much freer scope of construction, in favor of the intention of the law,
ought to be taken, and ingenuity ever should be exercised in devising
constructions which may save to the public the benefit of the law. Its intention is
the important thing: the means of attaining it quite subordinate. Thomas
Jefferson to William H. Cabell, 1807. ME 11:318

Claim # 482. A provision of the Constitution does not admit of two distinctly
opposite interpretations. It does not mean one thing at one time and an entirely
different thing at another time. Constitutional grants of power and restrictions
upon the exercise of power are not flexible as the doctrines of the common law
are flexible. The whole aim of construction, as applied to a provision of the
Constitution, is to discover the meaning, to ascertain and give effect to the
intent, of its framers and the people who adopted it. The necessities which gave
rise to the provision, the controversies which preceded, as well as the conflicts
of opinion which were settled by its adoption, are matters to be considered to
enable us to arrive at a correct result. HOME BUILDING & LOAN ASSN. V.
BLAISDELL, 290 U. S. 398 (1934)

Claim # 483. The history of the times, the state of things existing when the
provision was framed and adopted, should be looked to in order to ascertain the
mischief and the remedy. As nearly as possible, we should place ourselves in
the condition of those who framed and adopted it. And if the meaning be at all
doubtful, the doubt should be resolved, wherever reasonably possible to do so,
in a way to forward the evident purpose with which the provision was adopted.
HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U. S. 398 (1934)

Claim # 484. A constitutional amendment must be agreed to not only by


Senators and Representatives, but it must be ratified by the legislatures, or by
conventions, in three-fourths of the States before such amendment can take
effect. The safe way is to read its language in connection with the known
condition of affairs out of which the occasion for its adoption may have arisen,
and then to construe it, if there be therein any doubtful expressions, in a way so
far as is reasonably possible to forward the known purpose or object for which
the amendment was adopted. MAXWELL V. DOW, 176 U. S. 581 (1900)
Claim # 485. The suggestion that the only check upon the exercise of the
judicial power, when properly invoked to declare a constitutional right superior
to an unconstitutional statute, is the judge's own faculty of self-restraint is both
ill-considered and mischievous. Self-restraint belongs in the domain of will, and
not of judgment. The check upon the judge is that imposed by his oath of office,
by the Constitution, and by his own conscientious and informed convictions.
WEST COAST HOTEL CO. V. PARRISH, 300 U. S. 379 (1937)

Claim # 486. The meaning of the Constitution does not change with the ebb and
flow of economic events. To say that the words of the Constitution mean today
what they did not mean when written is to rob that instrument of the essential
element which continues it in force as the people have made it until they, and
not their official agents, have made it otherwise. Constitutions cannot be
changed by events alone. They remain binding as the acts of the people in their
sovereign capacity, as the framers of Government, until they are amended or
abrogated by the action prescribed by the authority which created them. It is
not competent for any department of the Government to change a constitution,
or declare it changed, simply because it appears ill-adapted to a new state of
things. The judicial function is that of interpretation; it does not include the
power of amendment under the guise of interpretation. HOME BUILDING &
LOAN ASSN. V. BLAISDELL, 290 U. S. 398 (1934); WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379 (1937); Twitchell v. Blodgett, 13 Mich. 127, 139-140

Claim # 487. If the Constitution, intelligently and reasonably construed in the


light of these principles, stands in the way of desirable legislation, the blame
must rest upon that instrument, and not upon the court for enforcing it
according to its terms. The remedy in that situation-and the only true remedy-is
to amend the Constitution. WEST COAST HOTEL CO. V. PARRISH, 300 U. S.
379 (1937)

Judge Cooley, in the first volume of his Constitutional Limitations (8th Ed.) p.
124, very clearly pointed out that much of the benefit expected from written
Constitutions would be lost if their provisions were to be bent to circumstances
or modified by public opinion. He pointed out that the common law, unlike a
Constitution, was subject to modification by public sentiment and action which
the courts might recognize; but that 'a court or legislature which should allow a
change in public sentiment to influence it in giving to a written constitution a
construction not warranted by the intention of its founders, would be justly
chargeable with reckless disregard of official oath and public duty; and if its
course could become a precedent, these instruments would be of little avail.'

Claim # 488. The Constitution is meaningless if its underlying principles change


without the formal amendment process.
As Justice Antonin Scalia observes in his book A Matter of Interpretation, if the
Constitution’s guarantees are "indeterminate moral concepts" that can become
more or less expansive, depending on the passions of the age, then the
Constitution has guaranteed nothing at all. And Justice Scalia reminds us that
an evolving constitution can easily evolve to abandon long-cherished rights that
a present-day majority disfavors. He cites the Contract Clause, which forbids a
state to void or mitigate a private debt, as one protection that the courts have
neutered. The Founding generation was well aware that a society could believe
itself wiser than its predecessors and could use that arrogance as a justification
for turning its back on the Founders’ design. True, the Founders recognized
their lack of perfect wisdom by establishing an amendment procedure in Art. V
of the Constitution. But that procedure makes it very difficult to ratify any
amendments. This can only reflect a desire to bind future generations to a great
extent. As Justice Scalia argues, the “whole purpose” of constitutional
guarantees “is to prevent change—to embed certain rights in such a manner
that future generations cannot readily take them away.” In a similar vein, Chief
Justice Marshall, writing for the Supreme Court in Marbury v. Madison, stated
that “the people have an original right to establish, for their future government,
such principles as in their opinion, shall most conduce to their own happiness.”

The fairness of constitutional changes deeply troubled Jefferson. His solution


was to allow each generation to write a new basic charter. During the debates
on ratification, Noah Webster put the point bluntly. "The very attempt to make
perpetual constitutions is the assumption of a right to control the opinions of
future generations; and to legislate for those over whom we have as little
authority as we have over a nation in Asia." Madison disagreed, arguing in The
Federalist No.49 that frequent recurrence to the people to resolve constitutional
issues would destabilize a political system. One solution is to incorporate into
the constitutional text itself procedures for amendment. As obvious as this
option seems, its inclusion in the American charter of 1787 was a totally new
contribution to politics. Some constitutional commentators, including such
eminent jurists as Joseph Story, Thomas Cooley, George Sutherland, and Hugo
Black, have contended that formal amendments open the only rightful path to
constitutional change because a constitution's meaning should have a fixed,
uniform, and permanent construction. In comparing the processes of
constitutional amendment and judicial review, the former is certainly better
justified from a textual point of view than is the latter, and scholars and
dissenting justices frequently critique broad judicial decisions on the basis that
the changes are so extensive that they can only be justified by amendment.
Thus, in the First Income Tax Case, Justice White said that "if it was necessary
that the previous decisions of this Court should be repudiated, the power to
amend the Constitution existed and should have been availed of," while in the
Second Income Tax Case, Justice Harlan said that the previous cases upholding
the income tax should not have been voided "without an amendment of the
constitution." In Home Building & Loan Assn. v. Blaisdell (1934), Justice
Sutherland argued that "constitutions cannot be changed by events alone. They
remain binding as the acts of the people in their sovereign capacity, as the
framers of Government, until they are amended or abrogated by the action
prescribed by the authority which created them." In an even more classic
statement, Justice Black noted in the Griswold Decision that amendment was
preferable to judicial construction, the former method being both "good enough
for our Fathers" and "good enough for me." Similarly, in Harper v. Virginia
State Board of Electors (1966), Black argued that "when a "political theory"
embodied in our Constitution becomes outdated, it seems to me that a majority
of the nine members of this Court are not only without constitutional power, but
are far less qualified, to choose a new constitutional political theory than the
people of this country proceeding in the manner provided by Article V."

Claim # 489. Every well developed system of government must embrace among
its mechanisms two types of forces, first, forces to maintain the measure of
stability of institutions requisite to satisfy the natural desire of citizens for
continuity in their affairs; and, second, opposing forces effective to bring about
necessary changes to serve changing conditions. The American Constitution,
notwithstanding its precise written form, is implemented with both types of
forces. Its principles are stable but they are not immutable.

Claim # 490. The solemn determination of a people enacting a fundamental law


by which they and their descendants shall be governed cannot prevent that law,
however great the reverence they continue to profess for it, from being worn
away in one part, enlarged in another, modified in a third, by the ceaseless
action of influences playing upon the individuals who compose the people. Thus
the American Constitution has necessarily changed as the nation has changed,
has changed in the spirit with which men regard it, and therefore in its own
spirit.

Claim # 491. For practical purposes the Constitution is that which the
government, in its several departments, and the people in the performance of
their duties as citizens, recognize and respect as such; and nothing else is.

Claim # 492. The American Constitution must and does possess a realistic
flexibility which, kept within proper bounds, is a definite source of strength.

Claim # 493. The danger of disturbing the public tranquility by interesting too
strongly the public passions, is a still more serious objection against a frequent
reference of constitutional questions to the decision of the whole society.
Federalist 49

Claim # 494. A cardinal rule in dealing with written instruments is that they
shall receive an unvarying interpretation, and that their practical construction is
to be uniform. A constitution is not to be made to mean one thing at one time
and another at some subsequent time when the circumstances may have so
changed as perhaps to make a different rule in the case seem desirable. A
principal share of the benefit expected from written constitutions would be lost
if the rules they established were so flexible as to bend to circumstances or be
modified by public opinion. It is with special reference to varying moods of
public opinion, and with a view to putting the fundamentals of government
beyond their control that these instruments are framed; and there can be no
such steady and imperceptible change in their rules as inures in the principle of
the common law. Those beneficent maxims of the common law which guard
person and property have grown and expanded until they mean vastly more to
us than they did to our ancestors, and are more minute, particular and
pervading in their prosecution; and we may confidently look forward in the
future to still further modifications in the direction of improvement. Public
sentiment and action affect such changes, and the courts recognize them; but a
court or legislature which should allow a change in public sentiment to
influence it in giving to a written constitution a construction not warranted by
the intention of its founders, would be justly chargeable with reckless disregard
of official oath and public duty; and if its course could become a precedent,
these instruments would be of little avail. What a court is to do, therefore, is to
declare the law as written, leaving it to the people themselves to make such
changes as new circumstances may require. The meaning of the constitution is
fixed when it is adopted, and it is not different at any subsequent time when a
court has occasion to pass upon it. 1 Cooley's Const. Lim. (8th ed.), p. 124;
Girard v. Diefendorf, 54 Idaho 467, 34 P.2d 48 (1934); HOME BUILDING &
LOAN ASSN. V. BLAISDELL, 290 U. S. 398 (1934); WEST COAST HOTEL CO. V.
PARRISH, 300 U. S. 379 (1937)

Claim # 495. The duty of the court is to interpret the instrument the founders'
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. If
any of the Constitution's provisions are deemed unjust, there is a mode
prescribed in the instrument itself by which it may be amended; but while it
remains unaltered, it must be construed now as it was understood at the time of
its adoption. SCOTT V. SANDFORD, 60 U. S. 393 (1856)

Claim # 496. The meaning of our constitution was fixed when it was adopted,
and the question which is now before us is not different from what it would have
been had the constitution been recently adopted. Constitutions cannot be
changed by events alone. They remain binding as the acts of the people in their
sovereign capacity, as the framers of government, until they are amended or
abrogated by the action prescribed by the authority which created them. People
v Blodgett, 13 Mich 127, 138 (1865)

Claim # 497. The constitution means nothing now that it did not mean when it
was adopted. But it must be regarded as meant to apply to the present state of
things as well as to all other past or future circumstances. Blodgett, at 140. But
the principles do not change--the constitution does not change to meet the
times-the constitution is simply capable of application to new circumstances.
Claim # 498. The object of construction, as applied to a written constitution, is
to give effect to the intent of the people adopting it. T. Cooley, Constitutional
Limitations 97 (8th ed. 1927)

Claim # 499. The object of construction, applied to a constitution, is to give


effect to the intent of its framers and of the people in adopting it. This intent is
to be found in the instrument itself, and when the text of a constitutional
provision is not ambiguous, the courts, in giving construction thereto, are not at
liberty to search for its meaning beyond the instrument. LAKE COUNTY V.
ROLLINS, 130 U. S. 662 (1889)

Claim # 500. To get at the thought or meaning expressed in a statute, a


contract, or a constitution, the first resort in all cases is to the natural
signification of the words in the order of grammatical arrangement in which the
framers of the instrument have placed them. If the words convey a definite
meaning which involves no absurdity nor any contradiction of other parts of the
instrument, then that meaning, apparent on the face of the instrument, must be
accepted, and neither the courts nor the legislature have the right to add to it or
take from it. LAKE COUNTY V. ROLLINS, 130 U. S. 662 (1889)

Claim # 501. In order to arrive at the proper construction we should ascertain


the purpose and object sought to be attained by the framers of the Constitution
so as to make effective the intent of the people who adopted it. An elementary
rule of construction is that all related provisions of a constitution or statutes
must be considered and read together in construing one provision. Harrison v.
Day, Supreme Court of Virginia. 200 Va. 439; 106 S.E.2d 636; January 19, 1959

Claim # 502. The constitution must be viewed and construed as a whole, and
every section, phrase and word given effect and harmonized if possible.
Barbour v. Grimsley, 107 Va. 814, 61 S.E. 1135; Portsmouth v. Weiss, 145 Va.
94, 133 S.E. 781; Funkhouser v. Spahr, 102 Va. 306, 46 S.E. 378; Board of
Sup'rs v. Cox, 155 Va. 687, 156 S.E. 755

Claim # 503. The purpose and object sought to be attained by the framers of the
constitution is to be looked for, and the will and intent of the people who ratified
it is to be made effective. May v. Topping, 65 W.Va. 656, 64 S.E. 848

Claim # 504. Constitutions should be construed in light of their framers' intent.


American Fork City v. Crosgrove, 701 P.2d 1069, 1072 (Utah 1985). State v.
Rowe, 806 P.2d 730, 738-39 (Utah Ct. App. 1991) (interpreting Fourth
Amendment "with an eye toward what was considered reasonable at the time of
the adoption of the Fourth Amendment")

Claim # 505. The principles of our constitution were not only meant for their
time but for all time. The constitution must be construed in the sense in which
the framers understood it. In other words, its meaning was fixed at the time it
was adopted.

Claim # 506. The fundamental principle of constitutional construction is to give


effect to the intent of the framers of the organic law and of the people adopting
it. A constitutional clause must be construed reasonably to carry out the
intention of the framers, which gives rise to the corollary that it should not be
construed so as to defeat the obvious intent if another construction equally in
accordance with the words and sense may be adopted which will enforce and
carry out the intent. The intent must be gathered from both the letter and spirit
of the document. It has been very appropriately stated that the polestar in the
construction of Constitutions is the intention of the makers and adopters.
Wherever the purpose of the framers of a Constitution is clearly expressed, it
will be followed by the courts. Even where terms of a constitutional provision
are not entirely free from doubt, they must be interpreted as nearly as possible
in consonance with the objects and purposes in contemplation at the time of
their adoption, because in construing a constitutional provision, its general
scope and object should be considered. 11 Am. Jur., Constitutional Law, §§ 61,
63

Claim # 507. A constitutional provision should receive a consistent and uniform


interpretation. Even though the circumstances may have changed to make a
different rule seem more desirable, the constitution should not be taken to mean
one thing at one time and another at another time.

Claim # 508. It has always been an accepted rule of construction that the
technical and special terms used in the Constitution are to be given that
meaning which they had at the time that instrument was framed. Westel
Woodbury Willoughby, The Constitutional Law Of The United States. Baker,
Voorhis & Company, 1910

Claim # 509. The "polestar" in the construction of constitutions is to give effect


to the intent of the framers of the constitution and the people who adopted
it. The language in question must be considered in relation to the entire
constitutional provision, and in light of the purpose and objective of the section
of which it is a part. 11 Am.Jur., Constitutional Law § 61, p. 674 (1937); State v.
Clausen, 85 Wash. 260, 148 Pac. 28 (1915); State ex rel. Linn v. Superior Court,
20 Wn.2d 138, 146 P.2d 543 (1944); Crippen v. Pulliam, 161 Wash. Dec. 728
(1963)

Claim # 510. In the interpretation of an amendment to the Constitution the


object of the people in adopting it should be given effect; the polestar in the
construction of the constitutional, as well as legislative, provision is the
intention of the makers and adopters thereof. Castleberry v. Evatt (1946), 147
Ohio St. 30, 67 N.E.2d 861; State v. Ward, 166 Ohio App.3d 188, 2006-Ohio-
1407
Claim # 511. The task of interpreting the constitution is to accomplish the
manifest purpose of the provision. The polestar in the construction of
Constitutions, as well as other written instruments, is the intention of the
makers and adopters. The process of uncovering this "manifest purpose" is not
confined by the particular traditions or practices in place at the time of
adoption. Constitutional framers may use constitutions to counter or transcend –
rather than embody – existing community realities. The interpretation is not
limited to the specific understandings of the particular people who drafted and
adopted the provision. Rather, the pursuit of the "real intention of the people" is
best understood as a search for the values that the framers have enshrined in
the constitution. Hockett v. State Liquor Licensing Board, 110 N.E. 485 (1915);
Castleberry v. Evatt, 67 N.E. 2d 861 (1946); Ohio ex rel. Swetland v. Kinney, 433
N.E.2d 217, 220 (1982)

Claim # 512. Words or terms used in a constitution, being dependent on the


ratification by the people voting upon it, must be understood in the sense most
obvious to the common undertakings at the time of its adoption. Va. & S.W. Ry
Co. v. Clower’s Admx., 102 Va. 867, 871-72, 47 S.E. 1003, 1004 (1904); Dean v.
Paocelli, 194 Va. 219, 226, 72 S.E.2d 506, 510 (1952)

Claim # 513. In placing a construction on a constitutional provision, a Court may


and should look to the history of the times and examine the state of matters
existing when the constitutional provision was adopted. Almond v. Day, 197 Va.
782, 787, 91 S.E.2d 660, 664 (1956)

Claim # 514. The office and purpose of the constitution is to shape and fix the
limits of governmental activity. It thus proclaims, safeguards, and preserves in
basic for the pre-existing laws, rights, mores, habits and modes of thought and
life of the people as developed under the common law and as existed at the time
of its adoption to the extent and as therein stated. Its interpretation and
construction are to be made with recognition of the fact that it is based upon
and announces the fundamental theory and principles of sovereignty and
government as developed under the common law. The constitution must be
viewed and construed as a whole, and every section, phrase and word given
effect and harmonized if possible. The purpose and object sought to be attained
by the framers of the Constitution is to be looked for, and the will and intent of
the people who ratified it is to be made effective. Va. & S.W. Ry Co. v. Clower’s
Admx., 102 Va. 867, 47 S.E. 1003 (1904); Commonwealth v. Newport News, 158
Va. 521, 164 S.E. 689 (1932); Dean v. Paolicelli, 194 Va. 219, 226, 72 S.E.2d
506, 510, 511 (1952); 4 Michie's Jurisprudence, Constitutional Law, sec. 7, p. 94

Claim # 515. Constitutional provisions should be construed in consonance with


the objects and purposes in contemplation at the time of their adoption. To
ascertain the intent of those by whom the language was used, we must consider
the conditions as they then existed and the purpose sought to be accomplished.
Inquiry should be directed to the old law, the mischief, and the remedy. The
court should place itself as nearly as possible in the position of the men who
framed the instrument. A court should look to the history, general spirit of the
times, and the prior and the then existing law in respect of the subject matter of
the constitutional provision under consideration, to determine the extent and
nature of the remedy sought to be provided. Perry v. Stancil, 237 N.C. 442, 444,
75 S.E.2d 512, 514 (1953); State v. Webb, 358 N.C. 92, 94, 591 S.E.2d 505, 509
(2004)

Claim # 516. As part of our constitutional interpretation, it is fundamental to


give effect to the intent of the framers of the organic law and of the people
adopting it. More importance is to be placed upon the intent and purpose of a
provision than upon the actual language used. In arriving at the intent, we are
not required to accord the language used an unnecessarily literal meaning.
Greater regard is to be given to the dominant purpose than to the use of any
particular words. Perry, 237 N.C. at 444, 75 S.E.2d at 514; Sneed v. Greensboro
City Bd. of Educ., 299 N.C. 609, 613, 264 S.E.2d 106, 110 (1980)

Claim # 517. To ascertain the meaning of a constitutional provision or rule of


procedure we first look to the normal, plain meaning of the language.

Claim # 518. The intent of the framers is first sought from the terminology used
in the provision, with each word being given its ordinary and popularly
understood meaning.

Claim # 519. The intention of the framers is primarily discovered by considering


the words used by the draftsmen, and these words are deemed to have been
used in their ordinarily and generally accepted meaning.

Claim # 520. A constitutional provision, unlike the Acts of our legislature, owes
its whole force and authority to its ratification by the people, and they judged of
it by the meaning apparent on its face.

Claim # 521. Since Constitutions are the basic and organic law, and are meant
to be known and understood by all the people, the words used should be given
the meaning which would be given to them in common and ordinary usage by
the average man in interpreting them in relation to every day affairs.

Claim # 522. If the meaning of the text is clear, the inquiry ends.

Claim # 523. If the language is clear and unambiguous, we need not look
beyond the provision's terms to inform our analysis.

Claim # 524. If the words are not ambiguous, the inquiry is terminated, for the
Court is not at liberty to search beyond the Constitution itself where the
intention of the framers is clearly demonstrated by the phraseology utilized.
Claim # 525. It is axiomatic that where the language of a Constitution is clear
and unambiguous, there can be no resort to construction to attribute to the
founders a purpose or intent not manifest in its letter. Davis v. Slater, 383 Md.
599, 604, 861 A.2d 78 (2004); Brown v. Brown, 287 Md. 273, 278, 412 A.2d 396
(1980); Cohen v. Governor, 255 Md. 5, 16, 255 A.2d 320 (1969); Andrews v.
Governor, 294 Md. 285, 290, 449 A.2d 1144 (1982); Norris v. Mayor and City
Council. 172 Md. 667, 192 A. 531, 535 (1937)

Claim # 526. The constitution is an instrument from the people and a


construction thereof should effectuate their purpose from the words employed
in the document; and the courts may not color it by the addition of words or the
ingrafting of their views as to how it should be written. Ervin v. Collins, Fla. 85
S. 852; 59 ALR 706

Claim # 527. The meaning of the Constitution must necessarily depend on the
words of the Constitution and the meaning and intention of the convention
which framed and proposed it for adoption and ratification to the conventions of
the people of and in the several states. RHODE ISLAND V. MASSACHUSETTS,
37 U. S. 657 (1838)

Claim # 528. The line we must draw between the permissible and the
impermissible is one which accords with history and faithfully reflects the
understanding of the Founding Fathers. ABINGTON SCHOOL DIST. V.
SCHEMPP, 374 U.S. 203, 294 (1963); LEE V. WEISMAN, 505 U.S. 577, 632-633
(1992)

Claim # 529. In setting up an enduring framework of government the Framers


undertook to carry out for the indefinite future and in all the vicissitudes of the
changing affairs of men, those fundamental purposes which the instrument
itself discloses. Hence we read its words, not as we read legislative codes which
are subject to continuous revision with the changing course of events, but as the
revelation of the great purposes of which were intended to be achieved by the
Constitution as a continuing instrument of government. If we remember that "it
is a Constitution we are expounding", we cannot rightly prefer, of the possible
meanings of its words, that which will defeat rather than effectuate the
Constitutional purpose. UNITED STATES V. CLASSIC, 313 U. S. 299 (1941)

Claim # 530. If any of its provisions are deemed unjust, there is a mode
prescribed in the instrument itself by which it may be amended; but while it
remains unaltered, it must be construed now as it was understood at the time of
its adoption. SCOTT V. SANDFORD, 60 U. S. 393 (1856)

Claim # 531. The primary principle underlying an interpretation of constitutions


or statutes is that the intent is the vital part, and the essence of the law. Such
intent, however, is that which is embodied and expressed in the statute or
instrument under consideration. If the language employed is plain and
unambiguous, there is no room left for construction. It must be presumed that
in case of a constitution the people have intended whatever has been plainly
expressed. Courts are not at liberty to depart from that meaning which is plainly
declared. We are not at liberty to presume that the framers of the constitution,
or the people who adopted it, did not understand the force of language.
Rasmussen v. Baker, 7 Wyo. 117, 128, 50 P. 819, 821 (1897)

Claim # 532. In the case of a constitution, it must be presumed the people have
intended whatever has been plainly expressed and that intent must be given
effect and enforced. Rasmussen v. Baker, 7 Wyo. 117, 128, 50 P. 819, 821
(1897); Campbell County School Dist., 907 P.2d at 1257

Claim # 533. If the constitutional language is clear and unambiguous, we must


accept and apply the plain meaning of that language. The same rules apply to
the construction of provisions of the constitution as apply to the construction of
statutes. Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981, 991
(1918); County Court Judges Ass'n v. Sidi, 752 P.2d 960, 962 (Wyo. 1988);
Management Council of Wyoming Legislature v. Geringer, 1998 WY 12, 953
P.2d 839

Claim # 534. If the constitutional language is clear and unambiguous, we must


accept and apply the plain meaning of that language. Management Council of
Wyoming Legislature, 953 P.2d at 843

Claim # 535. As men whose intentions require no concealment generally employ


the words which most directly and aptly express the ideas they intend to
convey, the enlightened patriots who framed our Constitution, and the people
who adopted it, must be understood to have employed words in their natural
sense, and to have intended what they have said. GIBBONS V. OGDEN, 22 U. S.
1 (1824)

Claim # 536. A Constitution is the form of government, delineated by the mighty


hand of the people, in which certain first principles of fundamental laws are
established. The Constitution is certain and fixed; it contains the permanent will
of the people, and is the supreme law of the land; it is paramount to the power
of the Legislature, and can be revoked or altered only by the authority that made
it. The life-giving principle and the death-doing stroke must proceed from the
same hand. What are Legislatures? Creatures of the Constitution; they owe their
existence to the Constitution: they derive their powers from the Constitution: It
is their commission; and, therefore, all their acts must be conformable to it, or
else they will be void. The Constitution is the work or will of the People
themselves, in their original, sovereign, and unlimited capacity. Law is the work
or will of the Legislature in their derivative and subordinate capacity. The one is
the work of the Creator, and the other of the Creature. The Constitution fixes
limits to the exercise of legislative authority, and prescribes the orbit within
which it must move. In short, gentlemen, the Constitution is the sun of the
political system, around which all Legislative, Executive and Judicial bodies
must revolve. Whatever may be the case in other countries, yet in this there can
be no doubt, that every act of the Legislature, repugnant to the Constitution, as
absolutely void. VANHORNE'S LESSEE v. DORRANCE, 2 U.S. 304 (1795)

Claim # 537. The "means" by which the government pursues its enumerated
and fixed objects must be subject to perpetual modification, and change; they
must be adapted to the existing manners, habits, and institutions of society,
which are never stationary; to the pressure of dangers, or necessities; to the
ends in view; to general and permanent operations, as well as to fugitive and
extraordinary emergencies. At the same time, a rule of equal importance is, not
to enlarge the construction of a given power beyond the fair scope of its terms,
merely because the restriction is inconvenient, impolitic, or even mischievous.
The policy of one age may ill suit the wishes, or the policy of another. The
constitution is not to be subject to such fluctuations. It is to have a fixed,
uniform, permanent construction. It should be, so far at least as human infirmity
will allow, not dependent upon the passions or parties of particular times, but
the same yesterday, to-day, and forever. Joseph Story, Commentaries On The
Constitution Of The United States (Boston: Hillard, Gray, and Co., 1833), § 192,
§ 193 (1833)

Claim # 538. In construing the Constitution we are compelled to give it such


interpretation as will secure the result which was intended to be accomplished
by those who framed it and the people who adopted it. The Constitution, like a
contract between private parties, must be read in the light of the circumstances
which surrounded those who made it. If such a power did not then exist under
the Constitution of the United States, it does not exist under this provision of the
Constitution, which has not been amended. A construction which should give
the phrase 'a republican form of government' a meaning differing from the
sense in which it was understood and employed by the people when they
adopted the Constitution, would be as unconstitutional as a departure from the
plain and express language of the Constitution in any other particular. This is
the rule of interpretation adopted by all commentators on the Constitution, and
in all judicial expositions of that instrument. A change in the popular use of any
word employed in the Constitution cannot retroact upon the Constitution, either
to enlarge or limit its provisions. Judge Thomas Cooley wrote: The meaning of
the Constitution is fixed when it is adopted, and it is not different at any
subsequent time. The object of construction, as applied to a written
constitution, is to give effect to the intent of the people in adopting it. Senate
Report No. 21, 42nd Cong. 2d Session 2 (1872), reprinted in Alfred Avins, The
Reconstruction Amendments’ Debates 571 (1967)

Claim # 539. The object of construction applied to a written constitution is to


give effect to the intent of the people in adopting it. In the case of written laws it
is the intent of the lawgiver that is to be enforced. But it must not be forgotten
in construing our constitutions that in many particulars they are but the
legitimate successors of the great charters of English liberty whose provisions
declaratory of the rights of the subject have acquired a well understood
meaning which the people must be supposed to have had in view in adopting
them. We cannot understand these unless we understand their history. It is also
a very reasonable rule that a State Constitution shall be understood and
construed in the light, and by the assistance of the common law, and with the
fact in view that its rules are still in force. It is a maxim with the Courts that
statutes in derogation of the common law shall be construed strictly. Thomas M.
Cooley, "Constitutional Limitations"

Here, we have the language of Judge Cooley himself. It is as clear as the


noonday's sun, and he utterly repudiates the pernicious doctrine that the
Constitution can grow and develop so as to mean one thing when it is adopted,
and something else at another time. You can never inject anything into a
Constitution by construction which was not in it when adopted.

If the Constitution is to be construed to mean what the majority at any given


period in history wish the Constitution to mean, then why a written
Constitution?

Why not assume that the framers of the Constitution and the people who voted
it into existence, meant exactly what it says? At the first glance, its reading
produces no impression of doubt as to the meaning. It seems all sufficiently
plain; and in such case there is a well-settled rule which we must observe. The
object of construction applied to a Constitution, is to give effect to the intent of
its framers, and of the people in adopting it. This intent is to be found in the
instrument itself; and when the text of a constitutional provision is not
ambiguous the Courts in giving construction thereto, are not at liberty to search
for its meaning beyond the instrument. Board of Lake County Commissioners v.
Rollins, 32 L Ed 1063, 1063-1064

Justice Bronson, in the case of People v. Purdy (2 Hill, 35), in commenting on


the danger of departing from the import and meaning of the language used to
express the intent, and hunting after probable meanings embraced in that
language, said: "In this way, the constitution is made to mean one thing by one
man and something else by another, until in the end it is in danger of being
rendered a mere dead letter, and that too where the language is so plain and
explicit that it is impossible to mean more than one thing, unless we lose sight
of the instrument itself and roam at large in the fields of speculation."

Claim # 540. The Constitution is not intended to be the arena of legal quibbling
for men with long purses. It is made for the common people. It should generally
be so construed that they can understand and appreciate it. The Constitution
was written to be understood by the voters, its words and phrases were used in
their normal and ordinary as distinguished from technical meaning.
Claim # 541. If the enacting words are clear and unambiguous, there is little
room for the interpretation, except the cases leading to an obvious absurdity or
to a direct overthrow of the intention expressed in the Preamble. Commentaries
on the Constitution of the United States. Joseph Story, Vol. 1, De Capo Press
Reprints (1970), at pages 443, 444

Claim # 542. The Supreme Court has constantly reiterated that the language of
the Constitution where clear and unambiguous must be given its plain evident
meaning. SOLORIO V. UNITED STATES, 483 U.S. 435, 454 n.3 (1987) (quoting
REID V. COVERT, 354 U.S. 1, 8 (1957))

Claim # 543. Where constitutional principles are involved, uniformity was


intended. U.S. v. HOLT STATE BANK, 270 U.S. 49 (1926)

Claim # 544. Words are the common signs that mankind make use of to declare
their intention to one another, and when the words of a man express his
meaning plainly, distinctly, and perfectly, we have no occasion to have recourse
to any other means of interpretation.

Claim # 545. The possession of language, like the fact of birth, makes us human
beings. The faculty of language stands at the center of our conception of
mankind: speech makes us human and literacy makes us civilized. Man's power
to create and use symbols gives him power over his own magnetism. Speech is
the human force field. The fact that man can speak, and that he must speak, that
he has the power of speech, of the word, has always and rightly been regarded
as the most characteristic token of humanity. Animals have no language;
moreover, they are unable to hold in their minds truth which is independent of
an object or situation accessible to sense-perception. Speech is the expression
of reason, not merely of the intellect. But speech is far more than this; speech is
the expression of the fact that human existence consists of the relation between
one human being and another. The fact that even when we are 'by ourselves' we
cannot do without speech, and that something has only really been thought out
when it has been formulated in speech, is a sign that human existence is not a
solitary rational existence but that it is a common existence in which we impart
to one another. Speech is reason-in-community. We may indeed turn the
current phrase, speech is the means of reason (which is derived from the idea of
rational autonomy with its lack of community), the other way round and say:
reason is the means of speech. We have been created in order that we may have
'something to say to one another.' However that may be, among all the
indications of the creation of man in the Word of God, speech is the plainest. It
was not the 'Deed' but the 'Word' which was 'in the beginning', for God has not
created a world which is without meaning and without community. In the Word
He created the World: this is the basis for the truth that He created it in and for
love. Speech is not to be understood from the point of view of reason, but both
reason and speech should be understood from the point of view of the Word of
God, as the two most powerful indications of a lost divine origin, in which we
still live, though in a perverted manner. That is why God reveals Himself and
our origin through the Incarnation of the Word, and this again through the
proclamation of the Message: thus by means of human speech. Although man
has his created nature in common with all other creatures, he has been created
in a different manner, and he is a 'creature' in a different way.

Claim # 546. Man, in contrast from all the rest of creation, has not merely been
created by God and through God, but in and for God. He is, what he is
originally, by God and through God; he is also in and for God. Hence he can and
should understand himself in God alone. Just as it is said of no other creatures,
'let us make', so also it is said of no other that it has been created 'after His
likeness' or 'in His image'. The history of this idea is the history of the Western
understanding of man, in which both the great spiritual forces of the past two
thousand years, Greek philosophy and the Christian faith, have, so to speak, an
equal share.

Claim # 547. The first and most distinctive mark of humans is the power to
name, to create language, and by creating language to continue God's own
creative activity in the world. But when that power is distorted and misused, the
tongue becomes a world of wickedness within our members: it sets aflame the
cycle of life. Language is a world-creating capacity, an awesome power by
which humans can either structure life according to the word of truth, so that
humans are a kind of first-fruits of his creatures, or make a structure of meaning
in which God is omitted, ignored, or denied. The greatest peril of speech is not
the passing angry word or casual oath or even the malicious slander, though
these are a death-dealing poison, but the shaping of distorted worlds of
meaning within which the word of truth is suppressed. Human language is
arguably the single most remarkable characteristic that we have, the one that
most truly sets our species apart. Our faculty of language, which we usually take
for granted, exhibits a number of properties which are remarkable, even
astonishing. Without language, we could hardly have created the human world
we know. Our development of everything from music to warfare could never
have come about in the absence of language. More than any other single
characteristic, then, language is what makes us human. And human language is
unique. The Babel account offers clues as to the importance of shared language
in an ideal society. Once mankind is made righteous and entrusted with
stewarding the New Earth, God will likely again restore a common language
(perhaps the same as the language spoken in the Garden of Eden). On the New
Earth, all we propose to do will be for God's glory and our good. God will no
longer need to protect us from ourselves. We will never unite to destroy and
exploit, only to create and enhance. A shared language will likely be God's gift
to empower us.

Claim # 548. The idea of relationship between men from the Christian
standpoint, is that of brotherhood. Nations have their justification as units, but
not as hostile units. Humanity is the unit. There is but one great brotherhood
upon earth, with one common fatherhood. Both science and religion have
affirmed that the human family had a common origin, belong to a common
brotherhood, with a common Fatherhood and that while some races have had
better climatic conditions and other advantages that gave to them a better start,
yet all races of men are capable of the highest development regardless of their
present condition or the color of their skin. The belief in God necessarily
involves a belief in the brotherhood of man, and all peace conferences and
arbitrations are the result of this faith. Peace among all men and all nations is
the Christian ideal. Justice, humanity and fraternity is the Christian order, not
for one nation, but for all nations. The nation that does not recognize this
principle is not Christian at heart and needs to learn more of Christ until this
ideal will be attained. Civilization rises in the scale as the principle of the peace
of God is recognized and accepted as the rule of international relationship.

Claim # 549. Man is distinctly the religious animal. If a man is not religious he is
lacking in that human instinct, feeling or sentiment that invites the human mind
and heart to the Divine mind and heart. The Idolater, the Moslem, the Jew, the
Unitarian or the Trinitarian, each is religious in his own way. Christianity is the
religion of the Anglo-Saxon race. Faith in Christ, obedience to his will and
loyalty to his teachings is Christianity in life and practice, and there is no way to
attain to a good life so effectual as to live in the spirit of Christ. The Anglo-
Saxon turns from the philosophies of men and human systems and dogmas to
Christ, for pardon, peace, holiness and hope. Their appeal is the same as was
uttered centuries ago by the Apostle Peter, "Lord, to whom shall we go but to
thee, thou hast the words of eternal life."

Claim # 550. Everywhere in the Anglo-Saxon heart and life, religion is


recognized as the foundation of social order, the Bible is asserted as authority in
morals, the Lord's Day is observed as a day of rest and worship, Christ is
worshiped as the Savior of men, there is a belief that divine providence rules
over the destinies of men and with the wide divergence of Christian doctrines
the people worship God as best they know how. The first victories of
Christianity are the silent victories of the individual over the heart and life. The
fruits may be seen in the overthrow of human tyranny and social abuses and in
the gradual but sure growth and establishment of philanthropy, justice, truth
and brotherly love. The Anglo-Saxons endeavor to emphasize the great truth
that Christ taught on the Brotherhood of man. The great principles of
Brotherhood stand out boldly in contradiction to any of the noblest principles of
Paganism. In ancient Egypt there was a class civilization and on the top was the
tyrannical Pharaoh; amongst the Greeks men thanked God that they were males
and not females, Greeks and not barbarians; the Romans looked with scorn
upon the people of other countries and rejoiced in their citizenship of Rome
more than anything else; the Jews considered the Gentiles as dogs who might
be thankful for the crumbs that fell from their tables. This race prejudice ran
through all the ancient peoples and is manifest to-day in India and to some
extent amongst all nations without a democratic government, but Christ teaches
the Fatherhood of God and the Brotherhood of man. He teaches that God is no
respecter of persons, that the poor is worthy His care and sympathy as well as
the rich man, and the slave as well as the master; He taught the woman at the
well of Samaria as well as Nicodemus, the ruler of the Jews; He ate and drank
with publicans and sinners as well as with Zaccheus, the rich man. He taught
that the rich and the poor should meet together for the Lord is the maker of
them all. He tasted death for every man, He commanded that the gospel should
be preached to every creature. He had His disciples emphasize the great truth
that there is neither Greek nor Jew, Barbarian nor Scythian, bond nor free, for
they are all one in Christ, and the more Christianity a nation has the more
complete is the abolition of human distinctions, classes and slavery. The more
Christianity a nation has the more truly are men bound together in the bonds of
love; the greater the sympathy between the rich and poor, the learned and the
ignorant, and the greater the consideration between those of different nations
and tongues. This spirit of Christianity is manifested through the Anglo-Saxon
by the relief of suffering and the amelioration of the human race in many and
various directions and institutions.

Claim # 551. Altruism is paramount in the Anglo-Saxon race. No race is so


easily touched by the sight of suffering, so easily moved by the great moral
ideas, so quick to accept responsibility for the relief of the oppressed, the
education of the ignorant and the salvation of the heathen. This race is always
organizing and perfecting societies to help humanity, and it has sacrificed more
lives and treasures for these humanitarian purposes than all the other races
combined.

Claim # 552. The movement of civilization westward, from Babylon to Home,


from Borne to London, from London to San Francisco, has furnished a
succession of eras in which the stronger, more highly developed races, have
flung themselves in heavy masses upon the aboriginal populations. The latter
have yielded, have perished, are perishing. In Greece, the Hellenes came upon
the Pelasgians, and the latter were either exterminated or absorbed. Again, in
Southern Italy, the CEnotrians were overwhelmed by the aggressive colonists of
Magna Graecia. The Gaulish and British Celts sank into the earth under the
tremendous pressure of the Roman and the Saxon. The American aborigines,
forced back from the seaboard through the passes of the Alleghanies, were
swept across the great valley of the Mississippi, and thrown up like pebbles on
the plains of the West. In the great march which has thus substituted the wheat-
field for the cane-brake, and made the White man the exterminator of the Red
barbarian, there is this that is peculiar: in America the work has been done by a
class of men unknown in Europe—The Pioneers. Europe was peopled by large
bodies of men moving from one country to another. In many regions the
antiquarian finds the Age of Stone suddenly cut off by the Age of Bronze,
without any intervening Age of Copper. This means that a bronze-bearing
soldiery overwhelmed the people of the Stone Age before the latter had
developed into a capability of working the metals. The Hellenes came from the
east as migrating tribes. The original peoples of the peninsula were
extinguished by the invaders. The Gaulish nations were trodden under foot by
Caesar's armies. The followers of Hengist and Horsa, before whom the Celts of
Britain perished, were an innumerable horde. Everywhere, except in our own
country, the movement has been en masse. But in America the work has been
accomplished by a different process. Here we have had the gradual approach of
civilization, and the gradual recession of barbarism. Population has been flung
westward in a spray, which has fallen far out beyond the actual line of the
column. Hence the pioneers.

Mr. James Turner, in his "History of the Anglo-Saxons," dwells interestingly on


the origin of names from some root or simple form, and which by some suffix or
addition of a word becomes a compound, but leaves the sense exactly where it
was before. Names compounded with Man, says Forsterman, a foremost
authority on the origin and meaning of personal and surnames, are of vast
antiquity. We trace them, says another eminent authority, Ferguson ("Science of
Surnames"), "to our Aryan ancestors" - to the cradle of the human race, from
which begin the awe-inspiring onward and ever onward march which after its
descent into the valley of the Tigris spread it branches over India, Europe,
Britain, and, cross the broad Atlantic, founded and reared the mightiest republic
in the history of the world. In Dr. Joseph P. Widney’s monumental volumes,
"The Race-Life of the Aryan Peoples", says the New York Sun, he author "has
transversed a field of historical inquiry never, so far as we know, traversed
before in systematic order. Beginning in the Asiatic period in the life of the
Aryan races, he outlines in chronological order the various immigrations into
India, southern and western Europe, and finally into America, from all of which
has resulted what we know as ancient and modern civilization." And, says, the
Rev. Dr. Taylor, in "Words and Places", the roads they took and the empires
they founded may be traced by the names and the places they once inhabited;
from the names of the hills they once fortified; of the rivers by which they dwelt;
of the distant mountains upon which they gazed, and by the names of the
terminals which still exist, and the tenacity with which the names they gave
adhered to them, throwing light upon history when our records are in doubt.
Man, with our Aryan forefathers, meant something far beyond the mere man as
we now apply it. With them it implied elevation of mind, noble qualities,
superior wisdom, and manly heroic traits, and, as a compound in names, gives a
clue to their sources, significations, and vast antiquity. Solomon the all-wise
flourished 1000 B.C.; Roman or Romaus, German, Norman, Semanus, Khap or
Kapman (Chapman), Aleman, Angleman (English or Engleman), Bodman,
Wakeman, are more or less ancient forms of compounds. Chapman implies a
chief; Bod (Bode) man, an illustrious envoy or representative of high rank.
American Families of Historic Lineage. Long Island Edition. Issued under the
Editorial Supervision of William S. Pelletreau, Member of the New York
Historical Society and John Howard Brown. Vol. 2. National Americana Society,
New York

Claim # 553. The nations of Europe are nations of eternal war. All their energies
are expended in the destruction of the labor, property and lives of their people.
On our part, never had a people so favorable a chance of trying the opposite
system, of peace and fraternity with mankind, and the direction of all our means
and faculties to the purpose of improvement instead of destruction. Thomas
Jefferson to James Monroe, 1823. ME 15:436

Claim # 554. War is common to all human history. While the history of war is
not the history of humankind, humankind’s history cannot be studied fully
without reference to war. Moreover, the way in which a nation wages war
reveals a great deal about its basic values. Thus, the illuminating qualities of
war should be of greater interest to the historian of society than the actual stuff
of warfare, such as armaments, battles, and tactics. To examine a nation’s
experience of war, and its response to it, is to learn something fundamental
about a nation’s values and its social order. That war should be as common to
American history as to the history of other nations was a condition that many of
the Founding Fathers did not anticipate. They believed that the United States
would be signally different from Europe in many ways, but especially in its
elimination of war. In the new environment of the new world, the “new man” of
America (in Crèvecoeur’s phrase) would rise and live out the potential for
humankind that had never been allowed by the decadent and decrepit
institutions of Europe. Americans would turn their backs on the nations of
Europe, which, as Jefferson wrote, "are nations of eternal war . . . On our part,
never had a people so favorable a chance of trying the opposite system, of
peace and fraternity with mankind, and the direction of all our means and
faculties to the purpose of improvement instead of destruction." Jefferson was
able to express this belief because it was part of a larger philosophical
perspective on the "American experiment" itself. The very word experiment was
significant for him, because what happened in the United States "laboratory" of
self-government would be of great importance to the watching world. To James
Madison he wrote that in 1789 Europeans were already citing our experiences
as though they were "the bible". To John Hollins he wrote, in 1811, that "the
eyes of the virtuous all over the earth are turned with anxiety on us as the only
depositories of the sacred fire of liberty, and our falling into anarchy would
decide forever the destinies of mankind and seal the political heresy that man is
incapable of self-government." Thomas Jefferson to John Hollins, 1811. ME
13:58. In claiming social uniqueness for America, Jefferson was the most
eloquent spokesman for a tradition in American thought—perhaps shared by a
majority of the Revolutionary generation—that American political procedures
were a novelty in the history of civilization. To some observers, "the rising glory
of America" represented the final stage of human evolution. Writing in 1772,
Philip Freneau and Hugh H. Brackenridge spoke in glowing terms of the
peaceful and progressive future for America:
This is thy praise America thy pow'r
Thou best of climes by science visited
By freedom blest and richly stor'd with all
The luxuries of life. Hail happy land
The seat of empire the abode of kings,
The final stage where time shall introduce
Renowned characters, and glorious works
Of high invention and of wond'rous art.

The hyperbole of patriotism—in America, Fourth of July rhetoric—is common to


all nations. But in the United States the hyperbole about the uniqueness,
greatness, and future prospects of the realm seems to outstrip that of other
nations, and the American appeal to destiny seems to set this nation apart from
other modern nations. The rhetoric of a grandiose American consciousness was
always at some variance with the reality of the American experience on the
North American continent. The United States was born with ideas about itself
such that it demanded a special place in human history. Americans imposed
upon themselves the requirement that they either be the greatest success in
world history or the worst failure; nothing else would do. For Americans to have
regarded themselves as having to bear the common burdens of humanity was to
have adjudged themselves failures. To be a nation like any other nation would
be to accept a theory about humanity and about the future of "the experiment"
that most Americans found unacceptable. Because of their special "calling" in
history, Americans were a people before they were a nation. Americans believed
that their birthright was unique and that they were born heirs to freedom. Thus,
their revolution was "conservative" in that Americans revolted not to create but
to maintain their freedom.

The idea of territorial expansion was born when America was born. The
charters of most British colonies in America granted them dominion as far as
the Pacific Ocean. The Articles of Confederation explicitly reserved a place in
the new nation for Canada. Whenever one looks at an historical process a
posteriori, knowing what was the final outcome, it is difficult to perceive the
uncertainties at each stage, the range of alternative outcomes that might have
been. In retrospect, it may be hard to imagine how there could be any outcome
other than a USA stretching from Atlantic to Pacific and between what are now
the Canadian and Mexican borders. By the 1840s it already appeared inevitable
to a good many Americans. Justifying expansion into Texas, Mexico and
Oregon, the Jacksonian journalist John L. O'Sullivan wrote in 1845 that it was
"by right of manifest destiny" for the United States "to overspread and to
possess the whole of the continent which Providence has given us," both for
"the development of the great experiment in liberty and federative self-
government entrusted to us" and for "the free development of our yearly
multiplying millions." If the phrase was new, the idea had been steadily forming
for half a century. Thomas Jefferson had from an early stage had his eye on
expansion into the 'free land' to the west. And in 1812, just nine years after
Jefferson had doubled the national territory through the Louisiana Purchase,
John Quincy Adams wrote to his father: "The whole continent of North America
appears to be destined by Divine Providence to be peopled by one nation,
speaking one language, professing one general system of religious and political
principles, and accustomed to one general tenor of social usages and customs.
For the common happiness of them all, for their peace and prosperity, I believe
it is indispensable that they should be associated in one federal Union." This
echoed virtually word for word Jefferson's 1801 prediction to Monroe.

The political elite of the period did not believe that they were leading an
ethnically heterogeneous people. Despite the presence of settlers of Dutch,
French, German, Irish, Scottish, and Welsh ancestry, as well as, of course, the
presence of native Americans and peoples from Africa, the prevalent elite-held
and mass-held self-perception of the American people was that of an ethnically
homogeneous people of English descent. As perceived by would-be
revolutionary leaders of the time, if popular support for separation from Britain
was to be propagated, a major problem to be overcome was the colonists' sense
of belonging to a larger English family. Therefore, the framers of the
Declaration of Independence apparently concluded that the feeling of
transatlantic kinship should be directly confronted and countered in order to
ensure popular support for the separation. After itemizing the grievances
against the king, the Declaration turned to the transgressions of the branch of
the family still in Britain: "Nor have We been wanting in attention to our British
brethren … 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 connection and
correspondence. They too have been deaf to the voice of justice and of
consanguinity. We must, therefore, hold them, as we hold the rest of mankind,
Enemies in War, in Peace Friends." In sum, from the American viewpoint, the
apostates were 'they,' not 'we.' It was 'they' who had destroyed the family
through faithlessness to the sacred bond between kindred, through having been
'deaf to the voice of consanguinity.' Eleven years later, political reformers were
trying to entice the population, now spread throughout thirteen essentially
independent countries, to adopt a federal constitution. The situation was not
unlike that which would face Bismarck nearly a century later: How to appeal to
people, strewn throughout a number of states, to join together. And, just as
Bismarck, one of the authors of the Federalist Papers (which were designed to
elicit popular support for union) appealed to the popularly held self-perception
of the society as an ancestrally related nation. In the second of the eighty-five
papers, John Jay wrote: "With equal pleasure I have as often taken notice that
Providence has been pleased to give this one connected country to one united
people--a people descended from the same ancestors, speaking the same
language, professing the same religion, attached to the same principles of
government, very similar in their manners and customs … This country and this
people seem to have been made for each other, and it appears as if it was the
design of Providence, that an inheritance so proper and convenient for a band
of brethren, united to each other by the strongest ties, should never be split into
a number of unsocial, jealous, and alien sovereignties." Jay was saying in effect,
we are members of one family and the family should be reunited. And so, in the
case of the United States, charges of betrayal of an ancestral bond were first
used to gain popular support for politically dividing the family, and this was
followed years later by appeals to the ancestral bond to bring about the political
union of the American section of the family. Americans of Anglo-Saxon ancestry
continued for decades to manifest the staatsvolk perception that all Americans,
or rather 'all true Americans,' were blood relatives of the English. For example,
in a mid-nineteenth century poem, entitled 'TO ENGLISHMEN,' American John
Greenleaf Whittier wrote:

O Englishmen!--in hope and creed,


In blood and tongue our brothers!
We too are heirs of Runnymede;
And Shakespeare's fame and Cromwell's deed
Are not alone our mother's.

"Thicker than water," in one rill


Through centuries of story
Our Saxon blood has flowed, and still
We share with you its good and ill,
The shadow and the glory.

America is today less a nation than an encampment of suspicious and hostile


tribes quarreling viciously over the spoils of politics and power. We live on the
same land, under the same set of laws, but we are no longer the one people of
whom John Jay wrote in Federalist 2. Unlike Jay, Benjamin Franklin found
grappling with a variety of races and ethnicities while conceptualizing the
national identity more problematic. In "Observations Concerning the Increase of
Mankind," he seems to advocate the establishment of a white state when he
queries, "why increase the Sons of Africa, by Planting them in America, where
we have so fair an Opportunity, by excluding all Blacks and Tawneys, of
increasing the lovely White and Red?", but later reveals that his desire to
eradicate "Blacks and Tawneys" extends to other white ethnics as well. In the
same piece, while contemplating increasing German immigration to
Pennsylvania, he contends: "Why should the Palatine Boors be suffered to
swarm into our Settlements, and by herding together establish their Language
and Manners to the Exclusion of ours? Why should Pennsylvania, founded by
the English, become a Colony of Aliens, who will shortly be so numerous as to
Germanize us instead of our Anglifying them, and will never adopt our
Language or Customs, any more than they can acquire our Complexion. Which
leads me to add one Remark: That the Number of purely white People in the
World is proportionably very small. All Africa is black or tawny. Asia chiefly
tawny. America (exclusive of the new Comers) wholly so. And in Europe, the
Spaniards, Italians, French, Russians and Swedes, are generally of what we call
a swarthy Complexion; as are the Germans also, the Saxons only excepted, who
with the English, make the principal Body of White People on the Face of the
Earth." The hostile and exclusionary tones of these remarks are poignantly
obvious. They also foreshadow the nativist attitudes that would come to mark
the United States in the late 1800s and well into the twentieth century. It clearly
illustrates the fear that accompanied the increase among one national and
linguistic group in particular, and exemplifies notions of WASP cultural
superiority. These sentiments have historically greeted whoever has been
considered a non-WASP group, especially as they begin to establish a presence
in the United States, and as a measure by which to exclude their access to
resource and power.

Like Franklin and Jay, Thomas Jefferson was also preoccupied with creating a
homogeneous nation. In 1801, Jefferson wrote that "it is impossible not to look
forward to distant times, when our rapid multiplication will expand itself and
cover the whole northern, if not the southern, continent, with a people speaking
the same language, governed in similar forms and by similar laws; nor can we
contemplate with satisfaction either blot or mixture on that surface." The "blot
or mixture" that concerned him was the presence of Africans in the United
States. Jefferson worried that the black "blot" would lead to "mixture" and the
"staining" of "the fine mixture of red and white." Jefferson's solution was
expulsion: the African was "to be removed beyond the reach of mixture,"
perhaps to Santo Domingo or perhaps back to Africa as a last resort. When
Jefferson wrote, the United States possessed 838,000 square miles, an area
already about eight times as large as the kingdom from which it had separated.
The purchases of Louisiana and Florida more than doubled the national domain,
but the grandest acquisitions, geographically at least, took place between 1845
and 1848. Annexation of Texas, settlement of the Oregon boundary, and the
conquests of the Mexican War, all accomplished in the administration of James
K. Polk, raised the land area of the United States to three million square miles.
Later, in 1867, the Alaska Purchase brought holdings on the North American
continent to their present extent of three and a half million square miles. Brazil,
Canada, and China are about the same size, but only Russia, twice America's
size even after breakup of the Soviet Union, possesses a significantly larger
domain.

Claim # 555. On this continent was to be built up the largest, richest, most
intelligent, and powerful Israelite-Christian nation on earth. A fearless, self-
sacrificing, intelligent, hardy Israelite-Christian race, disciplined by perils and
hardships indescribable, could alone lay the foundations and work out the grand
problem.

If the New West shall fail of the achievements predicted, the Republic will fail to
maintain its advanced rank among the nations; and if the Republic fails,
mankind will fall also. The prediction that the unprecedented mixture of
nationalities in the New West will compromise, and possibly destroy, its noblest
institutions, will not be fulfilled, since the manifest drift of affairs is to the
absorption of all other races by the Anglo-Saxons, who now control the destiny
of the human family. This English-speaking portion of mankind never even nods
to foreign tongues, but the latter are constantly being absorbed by the former.
We have an amusing jargon of languages now; but the time is coming when the
French, German, Irish, Spanish, and every other nationality will join our
English-speaking people, and we shall have but one tongue spoken from the
Atlantic to the Pacific, and from the Lakes to the Gulf. Besides, the
representatives of these many nations in the New West are the most intelligent,
enterprising, and industrious of their countrymen. William M. Thayer, Marvels
of the New West

Claim # 556. The English language, culture and law have been the single
greatest force for good in this world.

Claim # 557. The spread of the English-speaking peoples during the past three
centuries over the world’s waste spaces has been not only the most striking
feature in the world’s history, but also the event of all others most far-reaching
in its effects and its importance. Theodore Roosevelt: The Winning of the West,
The Spread of the English-Speaking Peoples. Spread of the Modern English
Race

International communication began some 6,000 years ago when Proto-Indo-


European speakers left their homeland somewhere in the Pontic-Caspian region
or the Caucasus to expand eastward and westward covering a geographical
stretch from India to Iceland. In the process of this long expansion, Proto-Indo-
European split into the dialects that were to become the first generation of
daughter languages (New Encyclopedia Britannica 1998: 588). These
developments marked the beginnings of global/international communication.
Indo-European expansion in Eurasia during the pre-Christian era, as well as the
later expansion of Indo-European languages around the globe, shows that
globalization has been going on from prehistoric times. The prestige of
languages rose and fell with the rise and fall of hegemonic powers in the world
system. Moreover, in keeping with the Buddhist philosophy of impermanence,
these languages went through numerous changes (rebirths?) or died (reached
nirvana?) on the way to the present. Commerce, conquest, and religion
determined the international language order from the time languages evolved.
Throughout history, languages have moved up or down the center-periphery
structure of the world system depending on the power fortunes of their speech
communities.

English evolved from the West regional group of Germanic, a language group
that branched off from the ancestral Proto-Indo-European. Thus, original
English was most closely related to German, Dutch, Flemish, and Frisian.
Although Britain became part of the Roman Empire during the years 55 to 410,
imperial Latin, the “official language,” had little influence on the native Celtic
tongues (Stevenson 1993: 84). Both Celtic and Latin were the offspring of Proto-
Indo-European, but the birth of English had to await the arrival of the Germanic
branch of their common ancestral tongue. The pioneer Jutes, led by Hengist and
Horsa, who arrived on the Isle of Thanet in 449 probably in response to an
appeal for military help by the British king Vortigern, planted the first Germanic
roots. Jutes later settled in Kent and the Isle of Wight. Kentish became their
dialect. The Saxon invaders settled in the rest of England south of the Thames
and in modern Essex and Middlesex. West Saxon became their dialect. The
Angles, the third group of invaders, settled elsewhere as far north as the Firth of
Forth and in the Scottish Lowlands. Northumbrian (north of the Humber) and
Southumbrian or Mercian became their dialects. The home of these three
Germanic tribes, the progenitors of Englisc or Old English, became “Engla
land.” These Germanic invaders took little from the language of the Celts whom
they drove westward and northward. Contrary to the assumption of limited
intermarriage made in the apartheid simulation, there is evidence that
significant mixing of the British and Germanic peoples occurred, and that the
early law codes, such as that of King Ine of Wessex, could have deliberately
encouraged such mixing. More importantly, the simulation did not take into
account any northwest European immigration that arrived both before and after
the Early Anglo-Saxon period. Proceedings of the Royal Society. Volume 275,
Number 1650 / November 07, 2008. Pages 2423-2429

The colonization of the Americas in the seventeenth century followed by further


expansion into India, Australia, and New Zealand in the eighteenth century laid
the foundation for English ultimately becoming the “global” language. The
spread of English went hand in hand with British military and mercantile
expansion. Horsman (1976: 401) documents the rise of Anglo-Saxon racialism
in the mid-nineteenth century as evident in Thomas Arnold’s boast that the
English race and language had overrun the world, and together with the
Germanic peoples had dominated the world, with “half of Europe, and all
America and Australia [being] German more or less completely, in race, in
language, or in institutions, or in all.” The English and Spanish conquests in
America differed from each other very much as did the original conquests which
gave rise to the English and the Spanish Nations. The English had exterminated
or assimilated the Celts of Britain, and they substantially repeated the process
with the Indians of America; although of course in America there was very little,
instead of very much, assimilation. The Germanic strain is dominant in the
blood of the average Englishman, exactly as the English strain is dominant in
the blood of the average American. Twice a portion of the race has shifted its
home, in each case undergoing a marked change, due both to outside influence
and to internal development; but in the main retaining, especially in the last
instance, the general race characteristics. The English-speaking peoples have in
their veins less aboriginal American blood than any of their neighbors.
Claim # 558. Americans belong to the English race only in the sense in which
Englishmen belong to the German. The fact that no change of language has
accompanied the second wandering of our people, from Britain to America, as it
accompanied their first, from Germany to Britain, is due to the further fact that
when the second wandering took place the race possessed a fixed literary
language, and, thanks to the ease of communication, was kept in touch with the
parent stock. The change of blood was probably as great in one case as in the
other. The modern Englishman is descended from a Low-Dutch stock, which,
when it went to Britain, received into itself an enormous infusion of Celtic, a
much smaller infusion of Norse and Danish, and also a certain infusion of
Norman-French blood. When this new English stock came to America it mingled
with and absorbed into itself immigrants from many European lands, and the
process has gone on ever since. It is to be noted that, of the new blood thus
acquired, the greatest proportion has come from Dutch and German sources,
and the next greatest from Irish, while the Scandinavian element comes third,
and the only other of much consequence is French Huguenot. Theodore
Roosevelt: The Winning of the West, The Spread of the English-Speaking
Peoples. The Americans a Distinct People from the British

Claim # 559. The destinies of the English-speaking peoples lie together. The
exigencies and the perils of race life compel it. It was this that obliterated the
line of the old hate between the English and Irish immigrants to America. The
federation which is at least not yet possible between other peoples because of
race rivalries, race jealousies, and conflicting race ambitions, is a possibility
between the English peoples, for with them there are no such barriers of race
rivalries, or jealousies, or conflicting ambitions, while there are the all-powerful
ties of a common blood, a common speech, a common literature, a race history
which goes back to one common source, and a religious faith which makes of
them brothers. With them is possible as between themselves what is probably
not possible upon a wider scale between unlike and uncongenial peoples. The
English man may, at least, readily have peace within his own family. One fact
would seem to be clear, that the time is not far distant when the English-
speaking peoples, even apart from ties of sentiment, will be forced, in the great
race competitions and rivalries which are now upon the world, to stand
together. Self-preservation, even if no other motive influenced them, will
demand this. In the great race conflicts which are even now throwing their
oncoming shadow over the nations, war between English-speaking peoples
would be as treason in the camp in the presence of a common foe. They can not
allow of warring among themselves. It would be race suicide. Lesser
considerations, lesser interests, must give way to the greater family need. All
family differences must be sunk in the common family welfare.

Claim # 560. England will always stand as the mother of the early settlers and
civilization of the United States. Though we had some quarrels and
misunderstandings, yet the best blood and the best ideals of the early settlers in
the New World came from England. Never was the hand of Providence more
distinctly shown than in the settlement of this country and never did a nation
have a better beginning. The first settlers of Old Rome were robbers, murderers
and beggars; the first settlers of Greece were wandering tribes, and did not
Israel rise out of Egyptian brick-yards? The earlier settlers of Britain and
Germany wore the skins of beasts, made war upon their neighbors and spread
fire and desolation on every side. But when we look upon the earlier settlers of
America we look upon a civilized people. Our ancestors had in their brains and
hearts the ripest results of the highest civilization of the Old World. They were
educated and Christian men. They were courageous, conscientious and devout.
They were the best people on earth fitted to found a new world. Out of the
turbulent waves of Europe God called forth a people to form the nucleus of a
new civilization.

Claim # 561. The common characteristics and interests of the Anglo-Saxons is


evidence of the unity of the race. Other races of men may have developed more
rapidly but none have surpassed this race in the practical character and power
of its progress. The true order of national development in free government is
first to convert the natural liberties of man into clearly defined political rights;
next to guarantee the security of those rights by the establishment of forces
capable of maintaining them. Everywhere throughout Anglo-Saxon nations do
we find trial by jury, the legal right to resist oppression, legislative
representation, religious freedom, and the principle that all political power is a
trust held for the public good, and these are the blessed heritage of every
Anglo-Saxon nation. Some of the people of America may at times lose sight of
what England did for this country before we came to it. English history is to a
large extent our own history, as Hawthorne says, "It is our old home." Only a
couple of centuries ago and the record of America was one with that of the
mother country which first discovered and permanently settled it and gave to it
the great leaders in education and statesmanship; in descent the greater part of
our people are of English blood, and in language, literature, law, religion, forms
of government and all the essential features of civilization we owe England a
greater debt than to all the other nations of the world. All that is glorious in her
history is ours; her classic poets, essayists, historians and statesmen spoke and
wrote in our language for the instruction and delight of our ancestors who laid
the foundation for the greatness of our nation and made it possible for our
interests and sympathies to possess so much in common with England; interests
in the past, now and in the future, essentially the same; interests that bind
England and America so closely together that make the one necessary to the
other. And when we consider their vast territorial and colonial growth, their
abounding wealth, their power to absorb the millions of immigrants of every
race and tongue that have poured into their midst; their fundamental principles
of constitutional government; their common language, their intelligent
enterprise, fair dealings, steady growth, and religious convictions, may we not
say with Canon Farrar, "Whatever there be between the two nations to forgive
and forget, is forgiven and forgotten; and if these two people which are one be
true to their duty, who can doubt that the destinies of the world are in their
hands?"

Claim # 562. Providence has given this one connected country to one united
people—a people descended from the same ancestors, speaking the same
language, professing the same religion, attached to the same principles of
government, very similar in their manners and customs, and who, by their joint
counsels, arms, and efforts, fighting side by side throughout a long and bloody
war, have nobly established general liberty and independence. Federalist 2

Well-founded fear of domestic insurrection, as the Whiskey rebellion of Western


Pennsylvania and the Shays's rebellion of Western Massachusetts
demonstrated, drove the early American political establishment in their
constitutional labors. They knew that they did not have national unity in any
profound sense. They sought to create it through their constitutional
endeavors. Under guise of worrying about foreign invasions, Jay clearly laid out
what for him and his fellows was the much greater danger, one stemming from
a lack of national unity. What Jay worried about, in his words and in his
emphasis, was a "disunited America." He worried about "direct and unlax
violence" and about unjust wars. Providing for "the safety" of the people is the
first objective of government. While external aggression would be a natural fear
for those who had just fought for their independence from Great Britain, by
Federalist 3, clearly the danger to "peace and tranquility" "arising from
domestic causes" is the great concern of the Federalists.

The Federalists' beliefs about basic human nature complicated their task. They
were challenged by those who maintained that because Americans were one
people (as they had themselves proclaimed), they had no motive in fighting
each other and therefore no need of a strong central government. Hamilton
replied: A man must be far gone in Utopian speculations who can seriously
doubt that, if these States should either be wholly disunited, or only united in
partial confederacies, the subdivisions into which they might be thrown would
have frequent and violent contests with each other. To presume a want of
motives for such contests as an argument against their existence, would be to
forget that men are ambitious, vindictive, and rapacious. FEDERALIST No. 6,
Concerning Dangers from Dissensions Between the States. For the Independent
Journal. Alexander Hamilton

If the ordinary run of mankind could not be trusted, perhaps the rare,
extraordinary individual, the "great man" merited confidence. After all,
most Americans admired George Washington. His most ardent followers had
demanded that instead of an elected president, a grateful citizenry should crown
him emperor. These partisans of Washington had gone so far as to proscribe the
proper ceremony, including the stipulation of a robe of ermine. This was an age
that admired the Classical Period of Greece of the fifth century B.C. The "beau
ideal" of the framers was the Athenian statesman. They considered, therefore,
the greatest man of all time to be Pericles, lawgiver and leader of Athens at the
height of the polis' power.

What Does Hamilton Tell Us About Pericles? "The celebrated Pericles," in


compliance with the resentment of a prostitute, at the expense of much of the
blood and treasure of his countrymen, attacked, vanquished, and destroyed the
city of the SAMNIANS. The same man, stimulated by private pique against the
MEGARENSIANS, another nation of Greece, or to avoid a prosecution with
which he was threatened as an accomplice of a supposed theft of the statuary
Phidias, or to get rid of the accusations prepared to be brought against him for
dissipating the funds of the state in the purchase of popularity, or from a
combination of all these causes, was the primitive author of that famous and
fatal war, distinguished in the Grecian annals by the name of the
PELOPONNESIAN war; which, after various vicissitudes, intermissions, and
renewals, terminated in the ruin of the Athenian commonwealth." If you can't
trust Pericles, who can you trust? The answer is clear: no one. Especially to
govern. As Madison observes, "in framing a government which is to be
administered by men over men, the great difficulty lies in this: you must first
enable the government to control the governed; and in the next place oblige it
to control itself."

Claim # 563. We are but one people, one nation, one power. THE CHINESE
EXCLUSION CASE, 130 U. S. 581 (1889); FONG YUE TING V. UNITED STATES,
149 U. S. 698 (1893)

Claim # 564. We are just one race here. It is American. ADARAND


CONSTRUCTORS, INC. V. PEÑA, 515 U.S. 200 (1995)

Claim # 565. Since the early days of the Republic, we have pursued a policy of
patriotic assimilation. At the heart of patriotic assimilation is the transfer of
allegiance. For more than 200 years, immigrants have taken an oath renouncing
prior allegiance and transferring sole political allegiance to the United States of
America. The transfer of allegiance is central to America because of the kind of
country that we are. It is precisely because we are a nation of assimilated
immigrants that we must be serious about dual allegiance.

Claim # 566. Because we are a Nation of immigrants we want to continue this


great tradition of patriotic assimilation. It is precisely because we are a
multiethnic, multi-subcultural Nation of people from all over the world that
loyalty to the United States should be paramount and that people shouldn't
maintain loyalty to another country. If we were purely an ethnic Nation like
some other nations it would not make that much difference, but it is because we
are a multiethnic Nation specifically that we want to continue our great
tradition.
Claim # 567. We are a civic, not an ethnic nation. American citizenship is not
based on belonging to a particular ethnicity, but on political loyalty to American
democracy. Regimes based on ethnicity support the doctrine of perpetual
allegiance, for one is always a member of the ethnic nation. In 1812, Americans
went to war against the concept of the ethnic nation and the doctrine of
perpetual allegiance. At this time, Great Britain under the slogan ''Once an
Englishman, always an Englishman'' refused to recognize the renunciation
clause of our citizenship oath.

Claim # 568. Western individualism is intimately entwined with scientific


thinking and social structures based on hierarchic harmony, sexual
egalitarianism, and democratic and republican forms of government. These
uniquely Western tendencies suggest that reciprocity is a deeply ingrained
Western tendency. Western political forms from the democratic and republican
traditions of ancient Greece and Rome to the hierarchic harmony of the Western
Middle Ages and to modern democratic and republican governments assume
the legitimacy of a pluralism of individual interests. Within these social forms is
a tendency to assume the legitimacy of others' interests and perspectives in a
manner that is foreign to collectivist, despotic social structures characteristic of
much of the rest of the world.

Claim # 569. Collectivist cultures place a high emphasis on the goals and needs
of the ingroup rather on individual rights and interests. Ingroup norms and the
duty to cooperate and submerge individual goals to the needs of the group are
paramount. Collectivist cultures develop an "unquestioned attachment" to the
ingroup, including the perception that ingroup norms are universally valid (a
form of ethnocentrism), automatic obedience to ingroup authorities, and
willingness to fight and die for the ingroup. These characteristics are usually
associated with distrust of and unwillingness to cooperate with outgroups.
Socialization in collectivist cultures stresses group harmony, conformity,
obedient submission to hierarchical authority, and honoring parents and elders.
There is also a major stress on ingroup loyalty as well as trust and cooperation
within the ingroup. Each of the ingroup members is viewed as responsible for
every other member. However, relations with outgroup members tend to be
distant, distrustful, and even hostile. In collectivist cultures morality is
conceptualized as that which benefits the group, and aggression and
exploitation of outgroups are acceptable.

Claim # 570. In the long run highly successful group strategies spawn mirror
images of themselves as non-group members increasingly perceive a need to
organize against the group strategy. The result is a fascinating historical
dynamic in which the individualistic tendencies of prototypical Western
societies have been punctuated in critical historical eras by the development of
highly collectivist Western societies with powerful overtones of anti-Semitism.
Claim # 571. Ethnic cleansing has been in operation across the globe since time
immemorial. It is historically speaking neither new nor remarkable.

Claim # 572. Assimilation refers to the elimination of differences between


peoples, as smaller (or weaker) ethnic groups conform to the larger, dominant
or titular group. Assimilation of peoples of varying religions, cultures, languages
or ethnic backgrounds alters the composition of a population. Indeed, if people
define themselves by any of these characteristics, and they convert their religion
and cease using their native language in favor of another, then the relative size
of groups is altered. Thus, assimilation is an important tool in simultaneously
increasing numbers of one group and diminishing the size and consequently the
political potential of other groups. Assimilation is a weapon in the war of
numbers. In an atmosphere of competing nationalisms, where time is of the
essence, methods of assimilation that are fast and efficient are preferable to
those whose results are only revealed in the long run. Milica Bookman, The
Demographic Struggle for Power. London and Portland, Oregon: Frank Cass,
1997

The terms integration and assimilation are often used in conjunction with each
other. Assimilation refers to the acceptance of another's culture (or language or
religion or values) and the simultaneous loss of one’s own traditional
characteristics. Integration is a broader term that assimilation and it
underscores what the groups have in common rather than their differences.

Claim # 573. Assimilation takes place in the spheres of religion and language
most easily and is most successful among people who are culturally similar to
the dominant group. When race is the distinguishing feature, assimilation
efforts become irrelevant.

Claim # 574. In this great American asylum, individuals of all nations are melted
into a new race of men. J. Hector Sr., John De Crevecoeur: Letters from an
American Farmer (Philadelphia: Mathew Carey, 1793)

The White ethnic intermarriage that Crèvecoeur prematurely asserted as


evidence of his melting pot is now a reality. Alba (1991) reported that only half
as many third-generation Italians of unmixed ancestry born after 1949 had
spouses of unmixed Italian ancestry compared to third-generation Italian males
born before 1920. Lieberson and Waters (1988) found significant declines in
endogamous marriages among virtually all White groups. Although such
intermarriage patterns provide support for melting pot proponents, they do not
necessarily indicate assimilation. As Lisa Neidert and Reynolds Farley (1985)
reported, third-generation members of second-wave ethnic groups were not
indistinguishable from the core English group, although they had been
successful in their occupational achievements. That is, they remained distinct,
and a considerable social distance existed between them and mainstream
society. Furthermore, within-group marriages are still fairly common among
people of unmixed ethnic ancestry. When race and culture are similar, marital
assimilation is more likely. If the past patterns of 19th- and 20th-century White
Americans are an indicator, however, this process may require three or more
generations to blend together the post-1965 ethnic groups.

Assimilation is easiest among people who are culturally similar to the dominant
group, but when different races are involved, assimilation efforts become
irrelevant. The historical record indicates that ethnic separatism among
Caucasian-derived groups has a tendency to collapse within modern Western
societies unless active attempts at ethnic and cultural segregation are
undertaken. As expected from a resource-reciprocity point of view, in the
absence of rigid ethnic barriers, marriage in Western individualist societies
tends to be importantly influenced by a wide range of phenotypic features of the
prospective spouse, including not only genetic commonality but also social
status, personality, common interests, and other points of similarity. This
individualist pattern of marriage decisions has characterized Western Europe at
least since the Middle Ages. The result has been a remarkable degree of ethnic
assimilation in the United States among those whose ancestry derives from
Europe. This is particularly noteworthy because ethnic conflict and violence are
on the rise in Eastern Europe, yet European-derived groups in the United States
have an overwhelming sense of commonality. The long-term result of such
processes is genetic homogenization, a sense of common interest, and the
absence of a powerful source of intrasocietal division.

Claim # 575. America is the asylum of all nations—the energy of Irish, Swedes,
Poles, and Cossacks, and all the European tribes—of the Africans, and of the
Polynesians, will construct a new race, a new religion, a new state, a new
literature, which will be as vigorous as the new Europe which came out of the
smelting-pot of the Dark Ages, or that which earlier emerged from Pelasgic and
Etruscan barbarism. Journals ot Ralph Waldo Emerson, 10 vols., ed. Edward
Waldo Emerson and Waldo Emerson Forbes (Boston: Houghton Mifflin, 1909-
1914), 7:115-16

Claim # 576. America is God's Crucible, the Great Melting Pot where all the
races of Europe are melting and reforming! Quoted from Peter Freese, ed.,
Israel Zangwill, “The Melting Pot” (München: Langenscheidt, 2nd ed., 2006), 29

Claim # 577. The Western Traditionalist view of America as a "melting pot" is


based on the historical influx of immigrants attempting to escape poverty,
religious persecution, and oppression, in search of economic opportunities,
personal freedom, and a better quality of life. People of differing cultural and
ethnic backgrounds sought this land of opportunity with the hope of becoming
an American. The point of America was not to preserve old cultures, but to forge
a new, American culture.
Claim # 578. Racial homogeneity is the sine qua non of every stable nation
state.

Claim # 579. From the beginning, different peoples were added to the core
English heritage, making the American nation a cultural patchwork of
languages, manners, and traditions.

Claim # 580. Under the Constitution and the laws, this country is open to the
honest and the industrious immigrant. THE CHINESE EXCLUSION CASE, 130
U. S. 581 (1889)

Claim # 581. By an intermixture with our people, immigrants will get


assimilated to our customs, measures and laws: in a word, soon become one
people. Writings of George Washington, ed. John C. Fitzpatrick (Washington:
Government Printing Office, 1931-44), 34:23

Claim # 582. The genius of America lies in its capacity to forge a single nation
from peoples of remarkably diverse racial, religious, and ethnic origins. It has
done so because democratic principles provide both the philosophical bonds of
union and practical experience in civic participation. The American Creed
envisages a nation composed of individuals making their own choices and
accountable to themselves, not a nation based on inviolable ethnic communities.

Claim # 583. Contemporary multiculturalism in the context of high levels of


immigration of peoples of all racial and ethnic groups presents the greatest
challenge to Western universalism in its history.

Claim # 584. The incorporation of non-European peoples, and especially


peoples derived from Africa, into peculiarly Western cultural forms is
profoundly problematic.

Claim # 585. The problem of immigration of non-European peoples is not at all


confined to the United States but represents a severe and increasingly
contentious problem in the entire Western world and nowhere else: Only
European-derived peoples have opened their doors to the other peoples of the
world and now stand in danger of losing control of territory occupied for
hundreds of years.

Claim # 586. Unless the ideologies of multiculturalism and deethnicized


individualism are abandoned not only by the multicultural minorities (who have
been encouraged to pursue their group interests by a generation of American
intellectuals) but also by the European-derived peoples of Europe, North
America, New Zealand, and Australia, the end result will be a substantial
diminution of the genetic, political, and cultural influence of these peoples. It
would be an unprecedented unilateral abdication of such power.
Claim # 587. The recent multicultural movement may be viewed as tending
toward a profoundly non-Western form of social organization that has
historically been much more typical of Middle Eastern segmentary societies
centered around discrete homogeneous groups. Given that a great many human
cultures bear a strong resemblance to the collectivist, anti-assimilatory
tendencies present in Judaic culture, it is highly likely that many of our present
immigrants are similarly unable or unwilling to accept the fundamental
premises of a universalistic, culturally homogeneous, individualistic society.

Claim # 588. Ethnic separatism has historically been a divisive force within
societies. It has on several occasions unleashed enormous intrasocietal hatred
and distrust, ethnically based warfare, expulsions, pogroms, and attempts at
genocide. Moreover, there is little reason to suppose that the future will be
much different. At the present time there are ethnically based conflicts on every
continent, and clearly the establishment of Israel has not ended ethnically based
conflict for Jews returning from the diaspora.

Claim # 589. In the United States we are presently heading down a volatile
path—a path that leads to ethnic warfare and to the development of collectivist,
authoritarian, and racialist enclave.

Claim # 590. Not only do races differ, but they are in competition with each
other for supremacy.

Claim # 591. The present immigration policy essentially places the United States
and other Western societies "in play" in an evolutionary sense which does not
apply to other nations of the world, where the implicit assumption is that
territory is held by its historically dominant people: Each racial and ethnic
group in the world has an interest in expanding its demographic and political
presence in Western societies and can be expected to do so if given the
opportunity.

Claim # 592. At present the interests of non-European-derived peoples to


expand demographically and politically in the United States are widely
perceived as a moral imperative, while the attempts of the European-derived
peoples to retain demographic, political, and cultural control are represented as
"racist" and patently immoral. From the perspective of these European-derived
peoples, the prescribed morality entails altruism and self-sacrifice, and it is
unlikely to be viable in the long run.

Claim # 593. The shift to multiculturalism has coincided with an enormous


growth of immigration from non-European-derived peoples beginning with the
Immigration Act of 1965, which favored immigrants from non-European
countries. Many of these immigrants come from non-Western countries where
cultural and genetic segregation are the norm, and within the context of
multicultural America, they are encouraged to retain their own languages and
religions and encouraged to marry within the group. As indicated above, the
expected result will be between-group resource and reproductive competition
and increased vulnerability of democratic and republican political institutions in
a context in which long-term projections indicate that European-derived
peoples will no longer be a majority of the United States by the middle of the
next century. At present the interests of non-European-derived peoples to
expand demographically and politically in the United States are widely
perceived as a moral imperative, whereas the attempts of the European-derived
peoples to retain demographic, political, and cultural control is represented as
"racist," immoral, and an indication of psychiatric disorder. From the
perspective of these European-derived peoples, the prevailing ethnic morality is
altruistic and self-sacrificial. It is unlikely to be viable in the long run, even in an
individualistic society.

Claim # 594. As other groups become increasingly powerful and salient in a


multicultural society, the European-derived peoples of the United States will
become increasingly unified and that contemporary divisive influences among
the European-derived peoples of the United States (e.g., issues related to
gender and sexual orientation, social class differences, religious differences)
will be increasingly perceived as unimportant. Eventually these groups will
develop greater cohesion and a sense of common interest in their interactions
with the other ethnic groups with profound consequences on the future history
of America and the West.

Demographic competition is common among human groups. Group size is


important because size translates into greater political power within a multi-
ethnic state, and group size can give legitimacy to demands for political
autonomy and ultimately the creation of secessionist ethno-states. Greater
group size also facilitates resource competition within multi-ethnic states, at
least partly because of increased ability to manipulate the political process.
Multi-ethnic states tend to become arrayed as competing groups battling over
scarce resources, and it is rare for different ethnic groups to have the same size
and control of resources at any given time. Although there is a correlation
between group size and economic and political power, there are glaring
exceptions to the rule, the most common being exploitation of larger groups by
smaller groups with greater access to the forces of social control. Certain
groups have often been exceptions to the general pattern, at times showing
disparities between economic and political power, and often obtaining high
levels of economic or political power despite a small group size. Modernization
brings with it increased ethnic conflict as different groups begin competing in
larger economic and political systems in which, at any given point in time,
groups differ in their numbers and their control of resources.

Since ethnic/racial groups are a common form of human demarcation with at


least some biological underpinning, even in Western societies where
assimilation has historically been the rule, it is expected that conflicts over
resources will fairly often be conflicts between ethnic groups.

Claim # 595. Ethnic conflict is of obvious importance for understanding critical


aspects of American history, and not only for understanding Black/White ethnic
conflict or the fate of Native Americans. Immigration policy is a paradigmatic
example of conflict of interest between ethnic groups because immigration
policy influences the future demographic composition of the nation. Ethnic
groups unable to influence immigration policy in their own interests will
eventually be displaced or reduced in relative numbers by groups able to
accomplish this goal.

Immigration policy is a paradigmatic example of conflicts of interest between


ethnic groups because immigration policy determines the future demographic
composition of the nation. Ethnic groups unable to influence immigration policy
in their own interests will eventually be displaced by groups able to accomplish
this goal. Immigration policies and actual immigration are complex outcomes of
competing individual and group interests. For example, it has often been
observed that immigration policies in Western countries have not been voted in
by popular majorities but rather by elites bent on satisfying their own ethnic or
economic interests. In the United States there was a prolonged battle between
immigration restrictionists bent on maintaining the ethnic status quo versus
others intent on changing the ethnic status quo. An often-expressed argument
of the restrictionists was that immigration should maintain the ethnic status
quo, an argument that favored those already with a majority but opposed by
other groups who saw their interests as better served by an ethnically
fractionated society in which no one ethnic group would be able to control the
society. From an evolutionary perspective, such conflicts of interest between
ethnic groups essentially involve conflicts of interest over the future genetic
constitution of the population. When the immigrants and the native population
differ substantially in their genetic makeup, this constitutes natural selection
against the genes of the native population. Given that 90% of recent immigrants
to the U.S. are non-European, this implies selection differentials against
European peoples. Since there are substantial genetic differences between
human groups, the principle of relatively unrestricted immigration, at least
under the conditions obtaining in late twentieth-century Western societies,
clearly involves altruism by some individuals and established groups. Natives
are renouncing additional offspring in favor of offspring of people from different
racial/ethnic groups.

Claim # 596. Citizenship is membership in a political society and implies a duty


of allegiance on the part of the member and a duty of protection on the part of
the society. These are reciprocal obligations, one being a compensation for the
other. LURIA V. UNITED STATES, 231 U.S. 9 (1913)
Claim # 597. One who is without any sense of nationalism is not well bound or
held by the ties of affection to any nation or government. Such persons are
liable to be incapable of the attachment for and devotion to the principles of our
Constitution that are required of aliens seeking naturalization. UNITED STATES
V. SCHWIMMER, 279 U. S. 644 (1929)

The Naturalization Act of June 29, 1906, requires: "He [the applicant for
naturalization] shall, before he is admitted to citizenship, declare on oath in
open court . . . that he will support and defend the Constitution and laws of the
United States against all enemies, foreign and domestic, and bear true faith and
allegiance to the same."

Claim # 598. No alien has the slightest right to naturalization unless all statutory
requirements are complied with. UNITED STATES V. GINSBERG, 243 U. S. 472
(1917); ROGERS V. BELLEI, 401 U. S. 815 (1971)

Claim # 599. U.S. naturalization laws have always required an oath of allegiance
as a prerequisite to naturalization. As a promise of future conduct, the oath of
allegiance has been, and remains, an indispensable legal requirement of
naturalization. The alien makes a contract with the government of the United
States. In return for the benefits and high privileges bestowed upon the alien,
he makes a solemn agreement expressed in the oath required of all who
become citizens. Act of March 26, 1790, ch. 3, § 1, 1 Stat. 103, 103; KNAUER V.
UNITED STATES, 328 U.S. 654 (1946); United States v. Tuteur, 215 F.2d 415,
417 (7th Cir. 1954); United States v. Shapiro, 43 F. Supp. 927, 929 (S.D. Cal.
1942); Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, 7 Immigration
Law and Procedure § 96.05 (1996)

The current version of the oath of allegiance contains five elements: (1) support
the Constitution; (2) renounce all allegiance to any foreign state or sovereign;
(3) support and defend the Constitution and laws of the United States against all
enemies; (4) bear "true faith and allegiance" to the same; and (5) bear arms,
perform noncombatant service, or perform work of national importance on
behalf of the United States. 8 U.S.C. § 1448(a). In order to attain U.S.
citizenship, an applicant must satisfy each of these elements, for the INA
demands strict compliance with its statutory conditions. See 8 U.S.C. § 1421(d)
(1994) ("A person may only be naturalized as a citizen of the United States in
the manner and under the conditions prescribed in this subchapter and not
otherwise."); cf.INS v. Pangilinan, 486 U.S. 875, 884 (1988) (courts' role in
naturalization process requires "strict compliance with the terms of [the]
authorizing statute"). Moreover, courts have long recognized that naturalization
is a privilege, not a right, to be granted only in accordance with the precise
conditions established by Congress.

Claim # 600. Every society possesses the undoubted right to determine who
shall compose its members, and it is exercised by all nations, both in peace and
war. A memorable example of the exercise of this power in time of peace was
the passage of the alien law of the United States in the year 1798. FONG YUE
TING V. UNITED STATES, 149 U. S. 698 (1893)

Claim # 601. Every Society from a great nation down to a club has the right of
declaring the conditions on which new members should be admitted. 2 Max
Farrand, The Records of the Federal Convention of 1787, at 237 (1966) (remarks
of Gouverneur Morris)

Claim # 602. The control of the people within its limits, and the right to expel
from its territory persons who are dangerous to the peace of the state, are too
clearly within the essential attributes of sovereignty to be seriously contested.
The power to deny citizenship is also the power to keep an alien outside the
Nation's borders, and that authority is an incident of every independent nation.
Accordingly, courts have long recognized the power to expel or exclude aliens
as a fundamental sovereign attribute exercised by the Government's political
departments largely immune from judicial control. THE CHINESE EXCLUSION
CASE, 130 U.S. 581 (1889); FONG YUE TING V. UNITED STATES, 149 U.S. 698
(1893); SHAUGHNESSY V. MEZEI, 345 U.S. 206 (1953); PLYLER V. DOE, 457
U. S. 202 (1982)

Claim # 603. Any policy toward aliens is vitally and intricately interwoven with
the conduct of foreign relations. HARISIADES V. SHAUGHNESSY, 342 U. S. 580
(1952); PLYLER V. DOE, 457 U. S. 202 (1982)

Claim # 604. The power to exclude and expel aliens (which, again, necessarily
subsumes the power to deny them citizenship) is a weapon of defense and
reprisal confirmed by international law as a power inherent in every sovereign
state. Use of that "weapon" is committed to the political Branches, which are
responsible for the entire control of international relations. Any rule of
constitutional law that would inhibit the flexibility of the political branches of
government to respond to changing world conditions should be adopted only
with the greatest caution. NISHIMURA EKIU V. UNITED STATES, 142 U. S. 651
(1892); HARISIADES V. SHAUGHNESSY, 342 U. S. 580 (1952); MATHEWS V.
DIAZ, 426 U. S. 67 (1976)

Claim # 605. The Founders favored open immigration, and yet they worried that
the new republic would be endangered if large numbers of foreigners arrived
without learning the English language and embracing America's cultural and
political institutions. The Founders resolved the dilemma by insisting on the
rapid assimilation of newcomers. Men and women would be free to come to
America from every country in the world - but only if they became Americans.

The American Revolution, and its experiment in republican government, gave


fresh meaning to the concept of the New World as an escape from the Old.
Thomas Paine, himself a recent immigrant when he wrote Common Sense in
1776, called America "the asylum for the persecuted lovers of civil and religious
liberty from every part of Europe." The thought of America as a political refuge
was nothing new to the people of New England; their Puritan ancestors had
emigrated to escape religious persecution. Now, political asylum was part of the
very idea of the nation. George Washington wrote in 1785, "let the poor, the
needy and oppressed of the Earth, and those who want Land, resort to the
fertile plains of our western country, the Second Land of Promise, and there
dwell in peace, fulfilling the first and great commandment." The Founders
expected and welcomed a large influx of immigration. "Those who live under
arbitrary power do nevertheless approve of Liberty, and wish for it," Benjamin
Franklin wrote John Jay from Paris in 1777. "...They almost despair of
recovering it in Europe; they read the translations of our separate colony
constitutions with rapture; and there are such numbers everywhere, who talk of
removing to America, with their families and fortunes, as soon as peace and our
independence shall be established, that 'tis generally believed we shall have a
prodigious addition of strength, wealth, and arts from the emigrations of
Europe." There was also an expectation that the best immigrants would add to
the moral capital of the growing country, bringing with them the attributes
necessary for the workings of free government. America promised advantages
to those "who are determined to be sober, industrious and virtuous members of
Society," Washington told a Dutch correspondent in 1788. "And it must not be
concealed," he added, "that a knowledge that these are the general
characteristics of your compatriots would be a principal reason to consider their
advent as a valuable acquisition to our infant settlements."

The Founders' enthusiasm for immigration, like their optimism for republican
government, was tempered by the lessons of experience. We know from The
Federalist Papers that they were acutely aware of the many problems that faced
the "petty republics" of ancient history. One of those problems, it turns out, was
immigration and the extension of citizenship. "Among other instances, it is
known that hardly anything contributed more to the downfall of Rome than her
precipitate communication of the privileges of citizenship to the inhabitants of
Italy at large," Hamilton observed in 1802. "And how terribly was Syracuse
scourged by perpetual seditions, when, after the overthrow of the tyrants, a
great number of foreigners were suddenly admitted to the rights of
citizenship?"

Claim # 606. To admit foreigners indiscriminately to the rights of citizens the


moment they put foot in our country would be nothing less than to admit the
Grecian horse into the citadel of our liberty and sovereignty.

Claim # 607. The safety of a republic depends essentially on the energy of a


common national sentiment; on a uniformity of principles and habits; on the
exemption of the citizens from foreign bias and prejudice; and on the love of
country, which will almost invariably be found to be closely connected with
birth, education, and family. The opinion advanced in the Notes on Virginia is
undoubtedly correct, that foreigners will generally be apt to bring with them
attachments to the persons they have left behind; to the country of their nativity,
and to its particular customs and manners. They will also entertain opinions on
government congenial with those under which they have lived; or if they should
be led hither from a preference to ours, how extremely unlikely is it that they
will bring with them that temperate love of liberty, so essential to real
republicanism? There may, as to particular individuals, and at particular times,
be occasional exceptions to these remarks, yet such is the general rule. The
influx of foreigners must, therefore, tend to produce a heterogeneous
compound; to change and corrupt the national spirit; to complicate and
confound public opinion; to introduce foreign propensities. In the composition
of society, the harmony of the ingredients is all-important, and whatever tends
to a discordant intermixture must have an injurious tendency. The United States
have already felt the evils of incorporating a large number of foreigners into
their national mass; by promoting in different classes different predilections in
favor of particular foreign nations, and antipathies against others, it has served
very much to divide the community and to distract our councils. It has been
often likely to compromit the interests of our own country in favor of another.
The permanent effect of such a policy will be, that in times of great public
danger there will be always a numerous body of men, of whom there may be
just grounds of distrust; the suspicion alone will weaken the strength of the
nation, but their force may be actually employed in assisting an invader. In the
recommendation to admit indiscriminately foreign emigrants of every
description to the privileges of American citizens, on their first entrance into our
country, there is an attempt to break down every pale which has been erected
for the preservation of a national spirit and a national character; and to let in the
most powerful means of perverting and corrupting both the one and the other.
Hamilton, “The Examination,” nos. 7-9 (1802), Papers of Alexander Hamilton,
ed. Harold C. Syrett (New York: Columbia University Press, 1961-), 25:491-501

Claim # 608. Every species of government has its specific principles. Ours is a
composition of the freest principles of the English constitution, with others
derived from natural rights and natural reason. To these nothing can be more
opposed than the maxims of absolute monarchies. Yet, from such, we are to
expect the greatest number of emigrants. They will bring with them the
principles of government they leave, imbibed in their early youth; or if able to
throw them off, it will be in exchange for an unbounded licentiousness, passing,
as is usual, from one extreme to another. It would be a miracle were they to
stop precisely at the point of temperate liberty. These principles, with their
language, they will transmit to their children. In proportion to their numbers,
they will share with us the legislation. They will infuse into it their spirit, warp
and bias its direction, and tender it a heterogeneous, incoherent, distracted
mass. Thomas Jefferson, Notes on the State of Virginia, 1787, ed. William Peden
(Chapel Hill: University of North Carolina Press for the Institute of Early
American History and Culture, Williamsburg, Virginia, 1954), 84-5
"Natural right and natural reason" refer to the "laws of nature and of nature’s
God" of the Declaration of Independence. These laws, discovered by reason,

Hamilton "real republicanism"—based on "the unalienable rights of mankind"


held equally by all—can only be sustained by a temperate love of liberty. That in
turn, requires that immigrants leave behind their "foreign bias and prejudice
and acquire republican "opinions on government" and republican habits of
moderation.

Claim # 609. If the immigrant who comes here in good faith becomes an
American and assimilates himself to us, he shall be treated on an exact equality
with everyone else, for it is an outrage to discriminate against any such man
because of creed, or birthplace, or origin. But this is predicated upon the man's
becoming in very fact an American, and nothing but an American. There can be
no divided allegiance here. Any man who says he is an American, but something
else also, isn't an American at all. We have room for but one flag, the American
flag, and this excludes the red flag, which symbolizes all wars against liberty
and civilization, just as much as it excludes any foreign flag of a nation to which
we are hostile. We have room for but one language here, and that is the English
language and we have room for but one soul loyalty and that is a loyalty to the
American people.

Claim # 610. By the very nature of the principles upon which it is established,
the United States—more than any other nation in history—beckons to its shores
the downtrodden, the persecuted, and all those "yearning to breathe free." With
only a very few exceptions, America has always welcomed immigrants who
come to this country honestly, with their work ethic and appreciation of liberty,
seeking the promises and opportunities of the American Dream. At the same
time, there is also the legitimate concern that large numbers and concentrations
of foreigners, and the ideas and influences they bring with them to this nation,
exacerbate the risk of factional and sectional conflict and potentially undermine
the civic culture, republican institutions, and national identity vital for free
government in the United States. The long-standing resolution of this seemingly
irreconcilable conflict, and the key to America’s uniquely successful
immigration story, lies in a deliberate and self-confident policy of patriotic
assimilation—welcoming newcomers while insisting that they learn and
embrace America’s civic culture and political institutions, thereby forming one
nation from many peoples.

Language is the glue that holds societies together. Republican government and
ordered liberty—not to mention the articulation of common political
principles—require clear communication, mutual deliberation and civic
education, and that demands that citizens share one common language. English
is that language in the United States.
"The bond of language is perhaps the strongest and most durable that exists
among men." Alexis de Tocqueville
"... to preserve a sameness of language throughout our own wide spreading
country, that alone would be an object worthy of public attention." The Papers
of John Marshall: Vol. V: Selected Law Cases, 1784-1800. University of North
Carolina Press, 1987

Claim # 611. Mankind is divided, physically, into three great races, entirely
distinct in appearance, color, and even in anatomical structure: the black or
Ethiopian race, the yellow or Mongolian race, and the white or Caucasian race.
These are the only three pure and simple types of man. All the other races, the
red race, the Malayan-Polynesian races, etc., are but varieties and mixtures of
these three primitive races. The particular characteristics that distinguish each
of these three types are so marked that many of the learned have considered
them, not as different modes, so to speak, of the same human type, but as three
distinct types, as three patterns of the human form. The Caucasian or white race
is divided into two great branches: the Semitic race, and the Indo-European or
Japhetic race. All the civilization of modern humanity has come from these two
races; to the Semitic race we owe our religious and moral life, our life of
conscience; to the Japhetic race we owe our intellectual, political and social life.
Cyclopædia of Political Science, Political Economy, and the Political History of
the United States By the Best American and European Writers. Edited by: Lalor,
John J. New York: Maynard, Merrill, and Co. 1881, 1899. III.116.3, III.116.9

Claim # 612. History belongs to the white race, and to no other. Civilization is its
true work, and all the societies, political or other, formed by the men of the
other races, are but imperfect, gross or repulsive figures of those which had
their origin in the white race. It is through the Caucasian race that man has
taken possession of the earth; it is through it that he has broken and every day
breaks the net-work of external fatalities with which nature surrounded him. All
the different religions of mankind sprung up under the pressure of the force of
sympathy of that race; all the literatures of the world were produced by the glow
of its imagination; its power of invention seems inexhaustible, and its fertility of
combination infinite. Only its labor has been blessed, for only its labor has been
truly fruitful. When we take a rapid glance at all that has been accomplished by
our race, we experience a feeling similar to that experienced by the traveler,
who, from a mountain height, sees spread before his eyes cultivated fields and
rich cities, and we feel ourselves taken hold of by veneration and respect.
Cyclopædia of Political Science, Political Economy, and the Political History of
the United States By the Best American and European Writers. Edited by: Lalor,
John J. New York: Maynard, Merrill, and Co. 1881, 1899. III.116.5

Claim # 613. The languages of those nations with whom our civilization
originated belong to two primal races, the Indo-Germanic and the Semitic. The
ancient culture of the former reached its culminating point in Greece; of the
later, in Judaea. In these two countries the typical antithesis between the Indo-
Germanic and Semitic races reached its highest point, and the fundamental
differences in the views of life of these two races were expressed in the classical
works of the Hellenes and Hebrews. We see, from those works, that the former
viewed life as a multiplicity and the latter as a unity; the one, looked upon the
world as eternal being, the other, as eternal becoming. The spirit of the one
expressed itself in terms of space, that of the other, in terms of time. In the
expression of the Greek spirit, there is the underlying idea of a perfectly created
world; the Hebrew spirit, on the other hand, is permeated with the invisible
energy of becoming, and the world, according to it, is governed by a principle
which will begin its workday in social life, when it has arrived at a standstill in
the world of Nature. After the antithesis of the two spiritual tendencies reached
its culminating points in two historical peoples, the conciliation of these two
points of view became the task of the civilized nations. The first attempt at a
reconciliation of the two types of civilization was made by Christianity, followed
by that of Islam, which contested the right to dominion of the former, in Asia,
Africa and even in a part of Europe itself, namely, in Spain. Moses Hess, Rome
and Jerusalem (1862)

Claim # 614. The history of the ancient world is largely made up of the struggle
between the southern Semitic line, which issued from the southern grasslands,
and the northern Indo-European line, which came forth from the northern
grasslands to confront the older civilizations represented in the southern line.
Thus we see the two great races facing each other across the Mediterranean
like two vast armies stretching from Western Asia westward to the Atlantic. The
later wars between Rome and Carthage represent some of the operations on the
Semitic left wing, while the triumph of Persia over Chaldea is a similar outcome
on the Semitic right wing. The result of the long conflict was the complete
triumph of our ancestors (the Indo-European line), who conquered along the
center and both wings and finally, as represented by the Greeks and Romans,
gained unchallenged supremacy throughout the Mediterranean world. This
triumph was accompanied by a long struggle for mastery between the members
of the northern line themselves. Among them the victory moved from the east
end to the west end of the northern line, as first the Persians, then the Greeks,
and finally the Romans gained control of the Mediterranean and oriental world.
James Henry Breasted, The Conquest of Civilization (New York: Literary Guild of
America, 1938), 200-202

Claim # 615. The two opposite races have everywhere come into contact,
everywhere into hostility. Edward Shepherd Creasy. The Fifteen Decisive Battles
Of The World From Marathon To Waterloo (1851). CHAPTER IV. THE BATTLE
OF THE METAURUS, B.C. 207

Scipio at Zama trampled in the dust the power of Carthage, but that power had
been already irreparably shattered in another field, where neither Scipio, nor
Hannibal commanded. When the Metaurus witnessed the defeat and death of
Husdrubal, it witnessed the ruin of the scheme by which alone Carthage could
hope to organize decisive success - the scheme of enveloping Rome at once
from the north and the south of Italy by two chosen armies, led by two sons of
Hamilcar. That battle was the determining crisis of the contest, not merely
between Rome and Carthage but between the two great families of the world,
which then made Italy the arena of their oft-renewed contest for pre-eminence.
The French historian Michelet whose "Histoire Romaine" would have been
invaluable, if the general industry and accuracy of the writer had in any degree
equalled his originality and brilliancy, eloquently remarks: It is not without
reason that so universal and vivid a remembrance of the Punic wars has dwelt in
the memories of men. They formed no mere struggle to determine the lot of two
cities or two empires; but it was a strife on the event of which depended the fate
of two races of mankind, whether the dominion of the world should belong to
the Indo-Germanic or to the Semitic family of nations. Bear in mind, that the
first of these comprises, besides the Indians and the Persians, the Greeks, the
Romans, and the Germans. In the other are ranked the Jews and the Arabs, the
Phoenicians and the Carthaginians. On the one side is the genius of heroism, of
art, and legislation: on the other is the spirit of industry, of commerce, of
navigation. The two opposite races have everywhere come into contact,
everywhere into hostility. In the primitive history of Persia and Chaldea, the
heroes are perpetually engaged in combat with their industrious and perfidious,
neighbours. The struggle is renewed between the Phoenicians and the Greeks
on every coast of the Mediterranean. The Greek supplants the Phoenician in all
his factories, all his colonies in the east: soon will the Roman come, and do
likewise in the west. Alexander did far more against Tyre than Salmanasar or
Nabuchodonosor had done. Not content with crushing her, he took care that
she never should revive: for he founded Alexandria as her substitute, and
changed for ever the track of commerce of the world. There remained Carthage-
-the great Carthage, and her mighty empire,--mighty in a far different degree
than Phoenicia's had been. Rome annihilated it. Then occurred that which has
no parallel in history,--an entire civilisation perished at one blow--vanished, like
a falling star. The 'Periplus' of Hanno, a few coins, a score of lines in Plautus,
and, lo, all that remains of the Carthaginian world! Many generations must
needs pass away before the struggle between the two races could be renewed;
and the Arabs, that formidable rear-guard of the Semitic world, dashed forth
from their deserts. The conflict between the two races then became the conflict
of two religions. Fortunate was it that those daring Saracenic cavaliers
encountered in the East the impregnable walls of Constantinople, in the West
the chivalrous valour of Charles Martel and the sword of the Cid. The crusades
were the natural reprisals for the Arab invasions, and form the last epoch of that
great struggle between the two principal families of the human race. Creasy,
Battle Of The Metaurus, B.C. 207

The great victory won by Charles Martel over the Saracens gave a decisive
check to the career of Arab conquest in Western Europe, rescued Christendom
from Islam, preserved the relics of ancient and the germs of modern civilization,
and re-established the old superiority of the Indo-European over the Semitic
family of mankind. Sismondi and Michelet have underrated the enduring
interest of this great Appeal of Battle between the champions of the Crescent
and the Cross. But, if French writers have slighted the exploits of their national
hero, the Saracenic trophies of Charles Martel have had full justice done to
them by English and German historians. Gibbon devotes several pages of his
great work to the narrative of the battle of Tours, and to the consideration of the
consequences which probably would have resulted, if Abderrahman's enterprise
had not been crushed by the Frankish chief. [Vol, vii. p. 11, ET SEQ. Gibbon's
remark, that if the Saracen conquest had not then been checked, "Perhaps the
interpretation of the Koran would now be taught in the schools of Oxford, and
her pulpits might demonstrate to a circumcised people the sanctity and truth of
the revelation of Mahomat," has almost an air of regret.] Schlegel speaks of this
"mighty victory" in terms of fervent gratitude; and tells how "the arms of
Charles Martel saved and delivered the Christian nations of the West from the
deadly grasp of all-destroying Islam;" [Philosophy of History, p. 331.] and Ranke
points out, as "one of the most important epochs in the history of the world, the
commencement of the eighth century; when, on the one side, Mahommedanism
threatened to overspread Italy and Gaul, and on the other, the ancient idolatry
of Saxony and Friesland once more forced its way across the Rhine. In this peril
of Christian institutions, a youthful prince of Germanic race, Karl Martell, arose
as their champion; maintained them with all the energy which the necessity for
self-defence calls forth, and finally extended them into new regions." [History of
the Reformation in Germany, vol. i. p. 5.] Arnold ranks the victory of Charles
Martel even higher than the victory of Arminius, "among those signal
deliverances which have affected for centuries the happiness of mankind."
[History of the later Roman Commonwealth, vol ii. p. 317.] In fact, the more we
test its importance, the higher we shall be led to estimate it; and, though the
authentic details which we possess of its circumstances and its heroes are but
meagre, we can trace enough of its general character to make us watch with
deep interest this encounter between the rival conquerors of the decaying
Roman empire. That old classic world lay, in the eighth century of our era,
utterly exanimate and overthrown. On the north the German, on the south the
Arab, was rending away its provinces. At last the spoilers encountered one
another, each striving for the full mastery of the prey. Their conflict brought
back upon the memory of Gibbon the old Homeric simile, where the strife of
Hector and Patroclus over the dead body of Cebriones is compared to the
combat of two lions, that in their hate and hunger fight together on the
mountain-tops over the carcass of a slaughtered stag: and the reluctant yielding
of the Saracen power to the superior might of the Northern warriors, might not
inaptly recall those other lines of the same book of the Iliad, where the downfall
of Patroclus beneath Hector is likened to the forced yielding of the panting and
exhausted wild boar, that had long and furiously fought with a superior beast of
prey for the possession of the fountain among the rocks, at which each burned
to drink. Creasy, Battle Of Tours, A.D. 732
Claim # 616. When we compare the purest types, the guiding genius of the
Indo-European and Semitic races seems to be almost opposite in spirit
manifested and in mode of thinking.

Claim # 617. The Indo-European is enterprising, adventurous, progressive,


inventive, analytical in thought, and philosophical. The people of this stock have
ever been of a restless, venturesome disposition, always seeking more worlds to
conquer. Tractless forests and unbounded seas must yield up their secrets to
these explorers, and even the uncharted skies are traversed by IndoEuropean
ships of the air.

Claim # 618. The Semite is unadventurous and more stationary in locality. He is,
therefore, naturally more narrow in his interests, but he is very intense in
thought and feeling at the spot where he applies himself. His imagination is of
the concrete sort rather than the abstract. In his mode of getting at truth he is
intuitional and prophetic rather than argumentative and rational.

Claim # 619. The philosopher and the scientist, analytical in thought and cold in
feeling, represent the highest type of thinking among the Indo-Europeans; the
prophet, intuitional and very intense, is the climax of Semitic attainment.

Claim # 620. Western civilization has its roots in the Indo-European and Semitic
cultures.

Claim # 621. The two principal branches of the Caucasian race—the Aryans and
the Semites—are distinguishable from each other, not only by their languages,
but by moral and intellectual qualities which have never been known to change
throughout all the generations.

Claim # 622. The intellectual qualities predominate in the Japhetite, and the
moral in the Semite. Philosophy is the vocation of the one, and religion is the
mission of the other.

Claim # 623. Through the Semitic race have come forth the most sensual and
debased conceptions in mythology which have ever cured mankind, while from
its deep sense of divinity have sprung all the religions of the civilized world.

Claim # 624. The two great culture-races — the Aryans and the Semites — have
been destined to conquer the world and to lead the human species to unity.
Other races do not count, in the face of that, as more than an essay, as a
hindrance or a help in that process.

Claim # 625. The variety of the world's races and language families formed part
of a providential pattern in human history. Different races had contributed, by
way of their particular aptitudes and mentalities, to the unfolding of civilization,
religion and progress. The Aryan alone could not supply man's deeper spiritual
wants. The Semite, while ennobling man in his 'moral bearings', was incapable
of bringing about wider intellectual and scientific changes. The Chinese and
Negritic peoples had their own particular characters and aptitudes, but would
have raised only a low level of civilization without the beneficial leavening of
Semitic and Aryan race influences. A mixture of quite different racial cultures
supported the elevation of humanity.

Claim # 626. The eventual mixture of the allied varieties of the Aryan race
forming the population, will produce a more powerful type of man than has
hitherto existed, and a type of man more plastic, more adaptable, more capable
of undergoing the modifications needful for complete social life. Herbert
Spencer

Claim # 627. This amalgamation and conglomeration of races living in America,


this admixture of Saxon and Celt and Latin and Teuton, will result in a higher
type of manhood than now appears upon the continent.

Races do not fall from heaven, they are bred. The Aryan, the Semite, the
Hamite, never existed. These terms are abstractions. Race is not an original
phenomenon, it is produced; physiologically by characteristic mixture of blood,
followed by inbreeding; psychically by the influence which long-lasting
historical and geographical conditions exercise upon that special, specific,
physiological foundation.

Claim # 628. The term "Aryan" has to do with linguistic, and not at all with
physical, characteristics, and it would seem reasonably clear that mere
resemblance in language, indicating a common linguistic root buried in
remotely ancient soil, is altogether inadequate to prove common racial origin.
There is, and can be, no assurance that the so-called Aryan language was not
spoken by a variety of races living in proximity to one another. Our own history
has witnessed the adoption of the English tongue by millions of negroes, whose
descendants can never be classified racially with the descendants of white
persons, notwithstanding both may speak a common root language. It may be
true that the blond Scandinavian and the brown Hindu have a common ancestor
in the dim reaches of antiquity, but the average man knows perfectly well that
there are unmistakable and profound differences between them today, and it is
not impossible, if that common ancestor could be materialized in the flesh, we
should discover that he was himself sufficiently differentiated from both of his
descendants to preclude his racial classification with either. UNITED STATES V.
BHAGAT SINGH THIND, 261 U. S. 204 (1923)

Claim # 629. The word "Caucasian" is, at best, a conventional term, with an
altogether fortuitous origin, which, under scientific manipulation, has come to
include far more than the unscientific mind suspects. According to Keane, for
example (The World's Peoples 24, 28, 307 et seq.), it includes not only the
Hindu, but some of the Polynesians (that is, the Maori, Tahitians, Samoans,
Hawaiians, and others), the Hamites of Africa, upon the ground of the Caucasic
cast of their features, though in color they range from brown to black. We
venture to think that the average well informed white American would learn
with some degree of astonishment that the race to which he belongs is made up
of such heterogeneous elements. The various authorities are in irreconcilable
disagreement as to what constitutes a proper racial division. For instance,
Blumenbach has five races; Keane, following Linnaeus, four; Deniker, twenty-
nine. The explanation probably is that "the innumerable varieties of mankind
run into one another by insensible degrees," and to arrange them in sharply
bounded divisions is an undertaking of such uncertainty that common
agreement is practically impossible. It may be, therefore, that a given group
cannot be properly assigned to any of the enumerated grand racial divisions.
The type may have been so changed by intermixture of blood as to justify an
intermediate classification. Something very like this has actually taken place in
India. Thus, in Hindustan and Berar, there was such an intermixture of the
"Aryan" invader with the dark-skinned Dravidian. In the Punjab and Rajputana,
while the invaders seem to have met with more success in the effort to preserve
their racial purity, intermarriages did occur producing an intermingling of the
two and destroying to a greater or less degree the purity of the "Aryan" blood.
The rules of caste, while calculated to prevent this intermixture, seem not to
have been entirely successful. UNITED STATES V. BHAGAT SINGH THIND, 261
U. S. 204 (1923)

Encyclopaedia Britannica (11th ed.) p. 113: "The ill chosen name of Caucasian,
invented by Blumenbach in allusion to a South Caucasian skull of specially
typical proportions, and applied by him to the so-called white races, is still
current; it brings into one race peoples such as the Arabs and Swedes, although
these are scarcely less different than the Americans and Malays, who are set
down as two distinct races. Again, two of the best marked varieties of mankind
are the Australians and the Bushmen, neither of whom, however, seems to have
a natural place in Blumenbach's series."

Keane himself says that the Caucasic division of the human family is "in point of
fact the most debatable field in the whole range of anthropological studies."
Man: Past and Present, p. 444. And again: "Hence, it seems to require a strong
mental effort to sweep into a single category, however elastic, so many different
peoples -- Europeans, North Africans, West Asiatics, Iranians, and others all the
way to the Indo-Gangetic plains and uplands, whose complexion presents every
shade of color, except yellow, from white to the deepest brown or even black."
"But they are grouped together in a single division because their essential
properties are one, . . . their substantial uniformity speaks to the eye that sees
below the surface . . . we recognize a common racial stamp in the facial
expression, the structure of the hair, partly also the bodily proportions, in all of
which points they agree more with each other than with the other main
divisions. Even in the case of certain black or very dark races, such as the Bejas,
Somali, and a few other Eastern Hamites, we are reminded instinctively more of
Europeans or Berbers than of negroes, thanks to their more regular features
and brighter expression." Id., 448.

Claim # 630. In some cases the crossing of distinct races has led to the
formation of a new race. The singular fact that the Europeans and Hindoos, who
belong to the same Aryan stock, and speak a language fundamentally the same,
differ widely in appearance, whilst Europeans differ but little from Jews, who
belong to the Semitic stock, and speak quite another language, has been
accounted for by Broca ('On Anthropology,' translation, 'Anthropological
Review,' Jan. 1868, p. 38.), through certain Aryan branches having been largely
crossed by indigenous tribes during their wide diffusion. When two races in
close contact cross, the first result is a heterogeneous mixture: thus Mr. Hunter,
in describing the Santali or hill- tribes of India, says that hundreds of
imperceptible gradations may be traced "from the black, squat tribes of the
mountains to the tall olive- coloured Brahman, with his intellectual brow, calm
eyes, and high but narrow head"; so that it is necessary in courts of justice to
ask the witnesses whether they are Santalis or Hindoos. ('The Annals of Rural
Bengal,' 1868, p. 134.) Whether a heterogeneous people, such as the
inhabitants of some of the Polynesian islands, formed by the crossing of two
distinct races, with few or no pure members left, would ever become
homogeneous, is not known from direct evidence. But as with our domesticated
animals, a cross-breed can certainly be fixed and made uniform by careful
selection ('The Variation of Animals and Plants under Domestication,' vol. ii. p.
95.) in the course of a few generations, we may infer that the free intercrossing
of a heterogeneous mixture during a long descent would supply the place of
selection, and overcome any tendency to reversion; so that the crossed race
would ultimately become homogeneous, though it might not partake in an equal
degree of the characters of the two parent-races. Charles Darwin, Descent of
Man [1871], Chapter VII - On the Races of Man. On the Formation of the Races
of Man

Claim # 631. Races are breeding populations that differ from one another in
gene frequencies and that vary in a number of intercorrelated visible features
that are highly heritable.

Claim # 632. The kindred blood which flows in the veins of American citizens,
the mingled blood which they have shed in defense of their sacred rights,
consecrate their Union, and excite horror at the idea of their becoming aliens,
rivals, enemies. Federalist 14

Claim # 633. Dual allegiance violates a core American principle of equality of


citizenship. Dual citizens are specially privileged, supra citizens who have
voting power in more than one nation and special privileges like EU privileges
that the majority of their fellow American citizens do not have.
Claim # 634. The natives, or natural-born citizens, are those born in the country,
of parents who are citizens. As the society cannot exist and perpetuate itself
otherwise than by the children of the citizens, those children naturally follow the
condition of their fathers, and succeed to all their rights. Vattel: The Law of
Nations: I. XIX. § 212

Claim # 635. By the law of nature alone, children follow the condition of their
fathers, and enter into all their rights (§ 212); the place of birth produces no
change in this particular, and cannot, of itself, furnish any reason for taking
from a child what nature has given him. Vattel: The Law of Nations: I. XIX. §
215

Claim # 636. When we apply the term "citizens" to the inhabitants of States, it
means those who are members of the political community. The civil law
determined the condition of the son by that of the father. A man whose father
was not a citizen was allowed to be a perpetual inhabitant, but not a citizen,
unless citizenship was conferred on him. Rep. A. Smyth (VA), House of
Representatives, December 1820.

Claim # 637. A man is a "citizen" of the country to which his father owes
allegiance. Savage v. Umphries (TX) 118 S. W. 893, 909

Claim # 638. The true bond which connects the child with the body politic is not
the matter of an inanimate piece of land, but the moral relations of his
parentage. The place of birth produces no change in the rule that children
follow the condition of their fathers, for it is not naturally the place of birth that
gives rights, but extraction.

Claim # 639. Nationality is, in its essence, dependent on descent. To what


nation a person belongs is by the laws of all nations closely dependent on
descent; it is almost an universal rule that the citizenship of the parents
determines it.

Claim # 640. The relationship of a person to a nation is, like the relationship
between husband and wife, parent and child, derived from the law of nature, not
from positive law. Thus, a person born to parents whose covenant allegiance to
a nation has previously been established is a natural born citizen, born into the
civil covenant, just like a child born into the marriage covenant of his father and
mother. Such a person need not swear allegiance to become a citizen, for his
allegiance is determined by birth. In contrast, a person born to parents in
covenant allegiance to another nation could become a naturalized citizen, but
only by swearing allegiance to another nation.

Claim # 641. 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. Article II of the United States Constitution. If the Founders
had not wanted an expansive definition of citizenship, it would only have been
necessary to say, 'no person, except a native-born citizen.'

There is a difference between the terms "native-born" and "natural-born." The


dictionary, which follows the English precedents, defines "native-born" as
"belonging to or associated with a particular place (as a country) by birth
therein" and "natural-born" as "having a specified status or character by birth."
(These definitions are from Webster's Third New International Dictionary of the
American Language, unabridged edition (Springfield, MA: Merriam-Webster,
Inc, 1981)).

Principles of Statutory Construction. Borrowing heavily from Blackstone, but


finding support as well from such noted authorities as Bacon and Vattel, Story
affirmed Blackstone’s first rule of interpretation: to construe the instrument
“according to the sense of the terms and the intentions of the parties.”
Continuing, Story laid out the rule as follows: Mr. Justice Blackstone has
remarked that the intention of a law is to be gathered from the words, the
context, the subject matter, the effects and consequence, or the reason and
spirit of the law. He goes on to justify the remark by stating, that words are
generally to be understood in their usual and most known signification, not so
much regarding the propriety of grammar as their general and popular use; that
if words happen to be dubious, their meaning may be established by the
context, or by comparing them with other words and sentences in the same
instrument; that illustrations may be further derived from the subject matter,
with reference to which the expressions are used; that the effect and
consequence of a particular construction is to be examined because, if a literal
meaning would involve a manifest absurdity, it ought not to be adopted; and
that the reason and spirit of the law, or the causes which led to its enactment,
are often the best exponents of the words, and limit their application. From this
it followed, said Story, that in many instances there is no problem of
interpretation unless “there is some ambiguity or doubt” about the meaning of a
particular word or phrase. “Where the words are plain and clear, and the sense
distinct and perfect arising from them, there is generally no necessity to have
recourse to other means of interpretation.” In this situation, the instrument in
question, whether it be a contract, a will, a statute, or the Constitution, is said to
interpret itself, and the judge has only to acknowledge and declare the obvious
intent of the parties. Applying these principles to the interpretation of the
Constitution, Story asserted that the first rule is to examine both the general
structure and the component parts of the Constitution, keeping in mind its
overall objectives and scope of power. “Where the words are plain, clear, and
determinate, they require no interpretation.” This is true of most provisions of
the Constitution. Article I, Section 3, for example, states that “The Senate of the
United States shall be composed of two Senators from each State.” This seems
clear enough. Each State is entitled to two Senators, no more, no less. In some
instances, however, “the words admit of two senses, each of which is
conformable to common usage.” In this situation, said Story, “that sense is to be
adopted which, without departing from the literal import of the words, best
harmonizes with the nature and objects, the scope and the design, of the
instrument.” A good example of this sort of difficulty would be Article II, Section
1, which provides that, “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.” The clause making eligible persons who were
citizens of the United States in 1787 was necessary, of course, since nobody old
enough to become President in 1787, or for a long time afterward, was a
“natural born” citizen of the United States. Every adult born in this country
before 1776 had been born a British subject. (The first President born under the
American flag was Martin Van Buren, who did not come into office until the
elections of 1836.)

But what is a “natural born” citizen? An obvious interpretation of a “natural


born” person would be a child born in the United States to American parents.
Likewise, a “naturalized” citizen, that is a person born in a foreign country to
foreign parents who later acquired American citizenship through naturalization,
would not be eligible to serve as President because that person would not be a
“natural born” citizen. What about a child born in a foreign country to American
parents? This issue actually arose in 1967, when George Romney, Governor of
Michigan, sought the presidency. Romney’s American parents were living in
Mexico when he was born. Was he eligible for the office of President? As Judge
Story suggests, the proper way in which to interpret the eligibility clause under
the circumstances would be to look at its original purpose, and to adopt that
interpretation which “best harmonizes with the nature and objects, the scope
and design, of the instrument.” Although the delegates to the Philadelphia
Convention and the authors of The Federalist did not discuss at length the
eligibility clause, we know from reason and experience, as Story explained, that
“the great fundamental policy of all governments” is “to exclude foreign
influence from their executive councils.” This, he observed, “cuts off all chances
for ambitious foreigners, who might otherwise be intriguing for the office; and
interposes a barrier against those corrupt interferences of foreign governments
in executive elections, which have inflicted the most serious evils upon the
elective monarchies of Europe.” It was thought dangerous, in other words, to
make the presidency available to a person who might have just recently come to
the United States and might still feel an allegiance to a king, a czar, or a foreign
government. In light of these considerations, a ruling that George Romney, born
of American parents, was a “natural born” citizen would seem to be consistent
with the basic purpose of the eligibility clause. Principles of Statutory
Construction - James McClellan, Liberty, Order, and Justice: An Introduction to
the Constitutional Principles of American Government [1989] (3rd ed.)
(Indianapolis: Liberty Fund, 2000)

Claim # 642. The President should at least be the child of citizens owing
allegiance to the United States at the time of his birth.
Claim # 643. A natural-born citizen is one whose citizenship is established by
the jurisdiction which the United States already has over the parents of the
child, not what is thereafter acquired by choice of residence in this country.

Both the Founders and the first Congress, which passed the 1790 Naturalization
Act, defined a "natural born" citizen as one "whose citizenship is established by
the jurisdiction which the United States already has over the parents of the
child, not what is thereafter acquired by choice of residence in this country".
The Naturalization Act of 1790 was designed to make it clear that people born
overseas to American parents are already "natural-born" and do not need to be
"naturalized." Whoever drew the Act followed closely the various parliamentary
statues of Great Britain, and its language in this relation indicates that the first
Congress entertained and declared that children of American parentage,
wherever born, were within the constitutional designation, "natural-born
citizens." The Act is declaratory: but the reason that such children are natural
born remains: that is, their American citizenship is natural, the result of
parentage, and is not artificial or acquired by compliance with legislative
requirements. By drawing on the "natural born" term so well known from
English law, the Founders were recognizing the law of hereditary, rather than
territorial allegiance. In other words, they were drawing on the English legal
tradition, which protected allegiance to the king by conferring citizenship on all
children whose fathers were natural-born subjects, regardless of where the
children were born. Thus, the framers thought it wise, in view of the probable
influx of European immigration, to provide that the President should at least be
the child of citizens owing allegiance to the United States at the time of his
birth.

Claim # 644. All children born in a country of parents who are its citizens
become themselves, upon their birth, citizens also. These are natives or natural-
born citizens, as distinguished from aliens or foreigners. Some authorities go
further and include as citizens children born within the jurisdiction without
reference to the citizenship of their parents. As to this class there have been
doubts, but never as to the first. MINOR V. HAPPERSETT, 88 U. S. 162 (1874)

Bingham argued before the House in 1871 "That Dr. [John Emilio] Houard is a
natural-born citizen of the United States there is not room for the shadow of a
doubt. He was born of naturalized parents within the jurisdiction of the United
States, and by the express words of the Constitution, as amended today, he is
declared to all the world to be a citizen of the United States by birth."

Claim # 645. The Constitution of the United States does not grant citizenship at
birth to just anyone who happens to be born within American borders. It is the
allegiance (complete jurisdiction) of the child's birth parents at the time of birth
that determines the child's citizenship.
Claim # 646. There is a distinction between territorial jurisdiction, on the one
hand, and the more complete, allegiance-obliging jurisdiction that the
Fourteenth Amendment codified, on the other. 'The one, natural and perpetual;
the other, local and temporary.' U.S. v. WONG KIM ARK, 169 U.S. 649 (1898)

Claim # 647. there is a distinction between partial, territorial jurisdiction, which


subjects all who are present within the territory of a sovereign to the jurisdiction
of that sovereign's laws, and complete political jurisdiction, which requires
allegiance to the sovereign as well.

Claim # 648. Mere birth on U.S. soil is not sufficient to meet the constitutional
prerequisites for birthright citizenship.

Claim # 649. Birth on U.S. territory has never been an absolute claim to
citizenship. The Fourteenth Amendment does not automatically extend to
children born to alien parents at war with the United States, or to the children of
diplomatic agents, or to American Indians, or to illegal aliens. {Its Citizenship
Clause extends to "all persons born or naturalized in the United States, and
subject to the jurisdiction thereof." U.S. Const. Amend. XIV.} If it did, American
Indians would automatically have been American citizens since they were born
on what is U.S. territory. But Indians who belong to tribes were not citizens
until given that status by Congress.

The Supreme Court held in 1884 in Elk v. Wilkins that "Indians born within the
territorial limits of the United States, members of, and owing immediate
allegiance to, one of the Indian tribes (an alien, though dependent, power),
although in a geographical sense born in the United States, are no more `born
in the United States and subject to the jurisdiction thereof,' within the meaning
of the first section of the Fourteenth Amendment, than the children of subjects
of any foreign government born within the domain of that government, or the
children born within the United States, of ambassadors or other public ministers
of foreign nations." The logic of this decision applies with equal force to visitors
or aliens who remain loyal to foreign powers. The Fourteenth Amendment did
not change this.

Claim # 650. It is not the physical location of birth that defines citizenship, but
whether your parents are citizens, and the express or implied consent to
jurisdiction of the sovereign.

Claim # 651. Fundamental principles of statutory interpretation require that the


term "jurisdiction" be construed in the context of "citizenship", which means far
more than physical presence.

Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961) ("The maxim noscitur a
sociis, a word is known by the company it keeps, while not a inescapable rule, is
often wisely applied where a word is capable of many meanings in order to
avoid the giving of unintended breadth to the Acts of Congress.");
Massachusetts v. Morash, 490 U.S. 107, 115 (1989) (noting that a term should
not be viewed "in isolation but in light of the words that accompany it and give
it meaning").

Claim # 652. The widely held, though erroneous, view today is that any person
entering the territory of the United States—even for a short visit; even
illegally—is considered to have subjected himself to the jurisdiction of the
United States, which is to say, subjected himself to the laws of the United
States. Surely one who is actually born in the United States is therefore “subject
to the jurisdiction” of the United States and entitled to full citizenship as a
result, or so the common reasoning goes.

Textually, such an interpretation is manifestly erroneous, for it renders the


entire “subject to the jurisdiction” clause redundant. Anyone who is “born” in
the United States is, under this interpretation, necessarily “subject to the
jurisdiction” of the United States. Yet it is a well-established doctrine of legal
interpretation that legal texts, including the Constitution, are not to be
interpreted to create redundancy unless any other interpretation would lead to
absurd results. [See, e.g., Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 562 (1995)
(“this Court will avoid a reading which renders some words altogether
redundant”); see also Richard A. Posner, Legal Formalism, Legal Realism, and
the Interpretation of Statutes and the Constitution, 37 Case. W. Res. L. Rev. 179
(1989).] The “subject to the jurisdiction” provision must therefore require
something in addition to mere birth on U.S. soil. The language of the 1866 Civil
Rights Act, from which the Citizenship Clause of the Fourteenth Amendment
was derived, provides the key to its meaning. The 1866 Act provides: “All
persons born in the United States, and not subject to any foreign power,
excluding Indians not taxed, are hereby declared to be citizens of the United
States.” [14 Stat. 27, ch. 31 (April 9, 1866).] As this formulation makes clear,
any child born on U.S. soil to parents who were temporary visitors to this
country and who, as a result of the foreign citizenship of the child’s parents,
remained a citizen or subject of the parents’ home country was not entitled to
claim the birthright citizenship provided by the 1866 Act.

Claim # 653. Citizenship, and all the rights and obligations that it entails, is not
solely a function of place of birth. Ever since the Roman Empire, citizenship has
been an honor granted to those who earn it, by inheritance or deed. St. Paul
held Roman citizenship when most of his peers, born in the same location, did
not. St. Paul invoked his citizenship at an opportune moment to stop an
injustice: Is it legal for you to flog a Roman citizen who is uncondemned? Acts
22:25

Claim # 654. Citizenship has always been a privilege, revocable by the


sovereign, rather than a birthright. Throughout history, forfeiture of citizenship
and the corollary practices of banishment and exile have been used as
punishment. In the Roman Empire, when people lost their freedoms, they
necessarily lost citizenship as well. For example, a Roman sold into slavery as
an insolvent debtor, or condemned to the mines for his crimes as servus
poenae, suffered not just a loss of his freedom, but a loss of citizenship as well.
Similarly, banishment was a weapon in the English legal arsenal for centuries.

Claim # 655. There is no precedent for the claim that physical location of birth
alone establishes citizenship. Citizenship must be far more than that,
transcending the vagaries of chance and manipulation. At a minimum, it
requires consent by the sovereign.

Claim # 656. The Fourteenth Amendment embodies the consensual meaning of


citizenship.

Claim # 657. Dire consequences await any dilution of citizenship based on the
superficiality of physical location.

Claim # 658. There is no legitimate claim to birthright citizenship for foreigners


under the Fourteenth Amendment.

Claim # 659. Citizenship must be consensual rather than ascriptive.

Claim # 660. The legal concept of citizenship has always been based on
consent.

Justice Joseph Story wrote in his Commentaries that: "The doctrine maintained
by many eminent writers upon public law in modern times is, that civil society
has its foundation in a voluntary consent or submission; and, therefore, it is
often said to depend upon a social compact of the people composing the nation.
And this, indeed, does not, in substance, differ from the definition of it by
Cicero, Multitudo, juris consensu et utilitatis communione sociata; that is, (as
Burlamaqui gives it,) a multitude of people united together by a common
interest, and by common laws, to which they submit with one accord."

John Locke’s theory of social compact, underlying the Declaration of


Independence, emphasized that citizenship must ultimately be based on
consent. Locke maintained that a child did not attain citizenship until s/he
could legitimately give consent upon reaching adulthood.

Claim # 661. Consensual citizenship is the essential basis of the social compact
between individual and the sovereign. Then, when the sovereign later exercises
its jurisdiction, a citizen cannot complain, because he has voluntarily submitted
himself to such a form of government. Where that voluntary submission is
lacking, so is citizenship. UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 551
(1876)
Claim # 662. The jurisdictional limitation on citizenship ensures that children of
enemy combatants do not automatically become citizens of the United States by
virtue of birth on American soil; nor do offspring of illegal aliens or foreign
visitors.

The large and growing population of illegal aliens and even foreign visitors
amplifies the significance of birthright citizenship. By the government’s own
estimates, in January 2000 there were seven million illegal aliens living in the
United States. “Estimates of the Unauthorized Immigrant Population Residing in
the United States: 1990 to 2000,” Office of Policy and Planning, U.S.
Immigration and Naturalization Service 1 (2003). The number is surely even
higher today, as illegal immigration is continuing to accelerate. In a mere six
years, from 1994 to 2000, gov rnment estimates of the numbers of illegal aliens
nearly doubled. See U.S. General Accounting Office, Illegal Aliens: National Net
Cost Estimates Vary Widely 4 (1995) (estimating illegal alien population at four
million in 1994). “We have noted before the dimensions of the immigration
problem in this country,” Justice Powell wrote twenty years ago. Immigration &
Naturalization Service v. Delgado, 466 U.S. 210, 222 (1984) (Powell, J.,
concurring) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878-79
(1975) and United States v. Martinez-Fuerte 428 U.S. 543, 551-53 (1976)).
“Recent estimates of the number of illegal aliens in this country range between
2 and 12 million, although the consensus appears to be that the number at any
one time is between 3 and 6 million. One of the main reasons they come—
perhaps the main reason—is to seek employment.” 466 U.S. at 222 (footnote
omitted). If birthright citizenship implicitly becomes a constitutional
requirement here, then the problems will greatly multiply. It would create an
unprecedented incentive to break the law. The Constitution should not be
construed to induce lawlessness. Nor should an easily manipulated fact—place
of birth—take precedence over the substantive values inherent in citizenship.
Non-citizens owing allegiance to foreign powers should not have a right to
endow their children with citizenship simply by crossing our border to give
birth.

“Gabriela Nicolas felt her first contractions while at a downtown San Diego
movie theater. She could have easily rushed home to Tijuana, Mexico. But that
wasn’t the plan. She drove to a hospital in a San Diego suburb, where she gave
birth to Miguel Angel about 12 hours later.” Anna Gorman, “Crossing border for
birth rights; Parents pursue U.S. citizenship,” Chicago Tribune, April 30, 2003,
3A. Why? “By being born in the United States, Miguel has something that his
parents don’t: American citizenship. ‘I wanted him to have more choices,’ said
Nicolas, a psychologist who also had her first child in the United States. Women
have long been crossing the border from Mexico to give birth, pursuing the age-
old yearning of parents everywhere to give their children better lives.” Id.

Mexico is just of one of many countries from which visitors now come to claim
birthright citizenship. “Women from Mexico are not the only foreigners coming
to the United States to give birth. Although there are no solid figures, expectant
mothers routinely obtain tourist visas and travel to America from as far away as
Hong Kong and Korea.” Id.

Indeed, “an entire cottage industry now caters to people from South Korea,
China, the Middle East and elsewhere who visit the United States just to give
birth and then go back home. Once the child reaches 21, he can petition to have
his families outside the country join him legally in the United States. These
children are called ‘anchor babies.’” “Immigration: Stop the Abuse,” Florida
Times-Union (Jacksonville, Fla.), April 4, 2003, at B-4. The overall numbers are
largely unknown, but some estimates are that anchor babies exceed 200,000
each year.

The Constitution surely does not require allowing this exploitation by foreigners
who reject American sovereignty. The Fourteenth Amendment does not
mandate this disdain of the legal procedures for immigrating to this country.
England changed its rule enabling birthright citizenship nearly twenty years
ago. See British Nationality Act 1981, ch. 61, 1(1) (Eng.) (limiting citizenship to
offspring of citizens and of aliens in the United Kingdom who have legally
settled there). England does not grant citizenship to the offspring of non-settled
or illegal aliens who do not spend the first ten years of their lives there. It would
be an absurd triumph of form over substance to require citizenship to be
beholden entirely to the place of birth. In an increasingly mobile society, the
location of birth conveys nothing about the desire of the sovereign to grant
citizenship and little about the person. A constitutional amendment is not
necessary to adhere to principles of citizenship existing from the days of the
Roman Empire: a set of obligations and rights conferred by a people upon those
whom a sovereign chooses. Citizenship must not be manipulated based on a
travel itinerary; rather, it is a function of consent between the sovereign and the
subjects.

Citizenship is a privilege not due of common right. One who lays claim to it as
his, and does this in justification or excuse of an act otherwise illegal, may fairly
be called upon to prove his title good. Morrison v. California, 291 U.S. 82, 89
(1934).

Claim # 663. The effort to read Wong Kim Ark as interpreting the Citizenship
Clause to confer birthright citizenship on the children of those not subject to the
full and sovereign (as opposed to territorial) jurisdiction of the United States,
not only ignores the text, history, and theory of the Citizenship Clause, but it
permits the Court to intrude upon a plenary power assigned to Congress itself.

Claim # 664. Only a complete jurisdiction, of the kind that brings with it a total
and exclusive allegiance, is sufficient to qualify for the grant of citizenship to
which the people of the United States actually consented.
In Wong Kim Ark, the Supreme Court held that “a child born in the United
States, of parents of Chinese descent, who, at the time of his birth, were
subjects of the Emperor of China, but have a permanent domicile and residence
in the United States,” was, merely by virtue of his birth in the United States, a
citizen of the United States as a result of the Citizenship Clause of the
Fourteenth Amendment. Justice Horace Gray, writing for the Court, correctly
noted that the language to the contrary in The Slaughter-House Cases was
merely dicta and therefore not binding precedent. He found the Slaughter-
House dicta unpersuasive because of a subsequent decision, in which the
author of the majority opinion in Slaughter-House had concurred, holding that
foreign consuls (unlike ambassadors) were “subject to the jurisdiction, civil and
criminal, of the courts of the country in which they reside.” Justice Gray appears
not to have appreciated the distinction between partial, territorial jurisdiction,
which subjects all who are present within the territory of a sovereign to the
jurisdiction of its laws, and complete, political jurisdiction, which requires as
well allegiance to the sovereign. More troubling than his rejection of the
persuasive dicta from Slaugher-House was the fact that Justice Gray also
repudiated the actual holding in Elk v. Wilkins, which he himself had authored.
After quoting extensively from the opinion, including the portion, reprinted
above, noting that the children of Indians owing allegiance to an Indian tribe
were no more “subject to the jurisdiction” of the United States within the
meaning of the Fourteenth Amendment than were the children of ambassadors
and other public ministers of foreign nations born in the United States, Justice
Gray simply held, without any analysis, that Elk “concerned only members of
the Indian tribes within the United States, and had no tendency to deny
citizenship to children born in the United States of foreign parents of Caucasian,
African or Mongolian descent, not in the diplomatic service of a foreign
country.” By limiting the “subject to the jurisdiction” clause to the children of
diplomats, who neither owed allegiance to the United States nor were (at least
at the ambassadorial level) subject to its laws merely by virtue of their residence
in the United States as the result of the long-established international law fiction
of extraterritoriality by which the sovereignty of a diplomat is said to follow him
wherever he goes, Justice Gray simply failed to appreciate what he seemed to
have understood in Elk, namely, that there is a difference between territorial
jurisdiction and the more complete, allegiance-obliging jurisdiction that the
Fourteenth Amendment codified.

Justice Gray’s failure even to address, much less appreciate, the distinction
between territorial jurisdiction and complete, political jurisdiction was taken to
task by Chief Justice Fuller, joined by Justice Harlan, in dissent. Drawing on an
impressive array of legal scholars, from Vattel to Blackstone, Chief Justice Fuller
correctly noted that there was a distinction between two sorts of allegiance—
“the one natural and perpetual; the other local and temporary.” The Citizenship
Clause of the Fourteenth Amendment referred only to the former, he contended.
He contended that the absolute birthright citizenship urged by Justice Gray was
really a lingering vestige of a feudalism that the Americans had rejected,
implicitly at the time of the Revolution, and explicitly with the 1866 Civil Rights
Act and the Fourteenth Amendment. Quite apart from the fact that Justice
Fuller’s dissent was logically compelled by the text and history of the
Citizenship Clause, Justice Gray’s broad interpretation led him to make some
astoundingly incorrect assertions. He claimed, for example, that “a stranger
born, for so long as he continues within the dominions of a foreign government,
owes obedience to the laws of that government, and may be punished for
treason.” And he necessarily had to recognize dual citizenship as a necessary
implication of his position, despite the fact that, ever since the Naturalization
Act of 1795, “applicants for naturalization were required to take not simply an
oath to support the Constitution of the United States, but of absolute
renunciation and abjuration of all allegiance and fidelity to every foreign prince
or State, and particularly to the prince or State of which they were before the
citizens or subjects.” That requirement still exists, though it no longer seems to
be taken seriously.

Finally, Justice Gray’s position is simply at odds with the notion of consent that
underlies the sovereign’s power over naturalization. What it meant,
fundamentally, was that foreign nationals could secure American citizenship for
their children unilaterally, merely by giving birth on American soil, whether or
not their arrival on America’s shores was legal or illegal, temporary or
permanent. Justice Gray saw only two classes of children ineligible for U.S.
citizenship: the children of ambassadors and other foreign diplomats, and the
children of members of invading armies who were born on U.S. soil while it was
occupied by a foreign army. Apart from these two narrow exceptions, all
children of foreign nationals who managed to be born on U.S. soil were, in
Justice Gray’s formulation, citizens of the United States. Children born of
parents who had been offered permanent residence but were not yet citizens,
and who as a result had not yet renounced their allegiance to their prior
sovereign, would become citizens by birth on U.S. soil. Children of parents
residing only temporarily in the United States on a student or work visa would
also become U.S. citizens. Children of parents who had overstayed their
temporary visas would likewise become U.S. citizens, even though born of
parents who were now in the United States illegally. And, perhaps most
troubling from the “consent” rationale, even children of parents who never were
in the United States legally would become citizens as the direct result of the
illegal action by their parents. This would be true even if the parents were
nationals of a regime at war with the United States and even if the parents were
here to commit acts of sabotage against the United States, at least as long as the
sabotage did not actually involve occupying a portion of the territory of the
United States. The notion that the framers of the Fourteenth Amendment, when
seeking to guarantee the right of citizenship to former slaves, also sought to
guarantee citizenship to the children of enemies of the United States who were
in its territory illegally is simply too absurd to be a credible interpretation of the
Citizenship Clause.
Once one considers the full import of Justice Gray’s language in Wong Kim Ark,
it becomes clear that his proposition is simply incompatible not only with the
text of the Citizenship Clause, but with the political theory of the American
Founding as well. At its core, as articulated by Thomas Jefferson in the
Declaration of Independence, that political theory posits the following:
Governments are instituted among particular peoples, comprised of naturally
equal human beings, to secure for themselves certain unalienable rights. Such
governments, in order to be legitimate, must be grounded in the consent of the
governed—a necessary corollary to the self-evident proposition of equality. This
consent must be present, either explicitly or tacitly, not just in the formation of
the government, but also in the ongoing decision whether to embrace others
within the social compact of the particular people. The most significant truth to
come out of the entire Wong Kim Ark ruling comes from Chief Justice Fuller
himself, when he said, “the words ‘subject to the jurisdiction thereof,’ in the
amendment, were used as synonymous with the words ‘and not subject to any
foreign power.’” He was absolutely correct. The most damning indictment
against the majority’s conclusion came in the year 1874 with a joint
Congressional report that declared the “United States have not recognized a
double allegiance.” This makes it impossible to argue the words “subject to the
jurisdiction thereof” was merely to reassert the common law doctrine of
demanding unconditional allegiance through birth. The common law doctrine
by operation creates double allegiances by making children of other nation’s
citizens born locally forever subjects of the crown whether they consent or not.
There is also a disturbing ethical aspect of Wong Kim Ark in terms of the
majorities’ apparent willingness to place themselves unethically above both
facts and the supreme law of the land. The United States by treaty with China
was prevented from admitting Chinese subjects to citizenship. This treaty was
ratified by the same senators who had adopted both Section 1992 of the US
Revised Statutes and the Fourteenth Amendment. Furthermore, the court was
also prohibited under 22 Stat. § 14 to admit subjects of China to U.S.
citizenship: “that hereafter no state court or court of the United States shall
admit Chinese to citizenship, and all laws in conflict with this act are hereby
repealed.”

Claim # 665. The idea of "birthright" citizenship is contrary to the principle of


consent that is one of the bedrock principles of the American regime.

Claim # 666. It is unreasonable to conclude that "natural-born citizen" applies to


everybody born within the geographical tract known as the United States,
irrespective of circumstances, and that the children of foreigners, happening to
be born to them while passing through the country, whether of royal parentage
or not, or whether of the Mongolian, Malay or other race, are eligible to the
Presidency, while children of our citizens, born abroad, are not. U.S. v. WONG
KIM ARK, 169 U.S. 649 (1898)
Claim # 667. Both the Founders and the first Congress, which passed the 1790
Naturalization Act, defined a "natural born" citizen as one whose citizenship is
established by the jurisdiction which the United States already has over the
parents of the child, not what is thereafter acquired by choice of residence in
this country.

Claim # 668. The Naturalization Acts of 1790 and 1795 help us understand that
the Founding Fathers considered a child of two U.S. citizens as "natural born,"
even when born abroad, unless the citizen parents showed less than total
allegiance to the United States by accepting a foreign citizenship for their child,
thus potentially compromising their child's future allegiance to the United
States and making their child ineligible for the office of President of the United
States. However unlikely, the possibility might exist for a child of one U.S.
citizen and one foreigner to have only U.S. citizenship at birth, but the child
would still not be a "natural born" citizen due to the foreign allegiance of the
foreign parent. Further, "natural born" citizenship might exclude any dual
citizenship at any point in one's life.

Claim # 669. Whoever drew the Naturalization Act of 1790 followed closely the
various parliamentary statues of Great Britain; and its language in this relation
indicates that the first congress entertained and declared that children of
American parentage, wherever born, were within the constitutional designation,
"natural-born citizens." The act is declaratory: but the reason that such children
are natural born remains; that is, their American citizenship is natural -- the
result of parentage -- and is not artificial or acquired by compliance with
legislative requirements.

Claim # 670. The Founding Fathers used the term "natural born" as an
expansive definition of citizenship, that is, as a way to make certain that people
born overseas to American citizens would have the full rights of other American
citizens. By drawing on the term so well known from English law, the Founders
were recognizing the law of hereditary, rather than territorial allegiance. In
other words, they were drawing on the English legal tradition, which protected
allegiance to the king by conferring citizenship on all children "whose fathers
were natural-born subjects," regardless of where the children were born. Thus,
the framers thought it wise, in view of the probable influx of European
immigration, to provide that the President should at least be the child of citizens
owing allegiance to the United States at the time of his birth.

Claim # 671. At common law the children of our citizen born abroad were
always natural born citizen from the standpoint of this government. UNITED
STATES V. WONG KIM ARK, 169 U. S. 649 (1898); WEEDIN V. CHIN BOW, 274
U. S. 657 (1927)

Claim # 672. Every human being born within the jurisdiction of the United
States of parents not owing allegiance to any foreign sovereignty is, in the
language of our Constitution itself, a natural-born citizen. Rep. John Bingham.
CONGRESSIONAL GLOBE, 39th Congress, 1st Sess., 1291 (1866)

Claim # 673. The 1866 Civil Rights Act provided that all persons born in the
United States were as a result citizens both of the United States and of the state
in which they resided, provided they were not at the time subjects of any
foreign power.

Claim # 674. The post-Civil War Amendments to the Constitution—purchased at


the price of immeasurable human suffering—rekindled the ideal of race
neutrality embodied in the Declaration. ADARAND CONSTRUCTORS, INC. V.
PEÑA, 515 U.S. 200 (1995)

Claim # 675. The Fourteenth Amendment’s requirement of ‘equal protection of


the laws,’ combined with the Thirteenth Amendment’s abolition of the
institution of black slavery, leaves no room for doubt that laws treating people
differently because of their race are invalid. RUTAN V. REPUBLICAN PARTY,
497 U. S. 62 (1990)

The abolition of slavery was, to be certain, the most immediate and profound
post-war objective. See U.S. Const. amend. XIII. However, amending the
Constitution to outlaw slavery, see id., and to grant the right of suffrage to
former slaves, see id. amend. XV, without more, would have been insufficient to
meet the grander objective. See McDonald v. Santa Fe Trail Transp. Co., 427
U.S. 273, 296 (1976): “The 39th Congress was intent upon establishing in the
federal law a broader principle than would have been necessary simply to meet
the particular and immediate plight of the newly freed Negro slaves.” The
Fourteenth Amendment therefore announced that “no State shall . . . deny to
any person within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. The Equal Protection Clause, by its terms, does not admit to
racial classifications of any kind—for any reason. Indeed, the Framers of the
Reconstruction Amendments viewed their task as restoring the broader
principle of individual equality that, as the Declaration explained, underlies the
legitimacy of republican governance: “the duty of the law-maker is to know no
race, no color, no religion, no nationality, except to prevent distinctions on any
of these grounds, so far as the law is concerned.” 3 Cong. Rec. 945 (1875)
(Statement of
Rep. John Lynch); see also Cong. Globe, 42d Cong., 2d Sess. 3193 (1872)
(Statement of Sen. John Sherman) (stating that the key to restoring peace in the
South was to “wipe out all legal discriminations between white and black”); 2
Cong. Rec. 4083 (1874) (Statement of Sen. Daniel Pratt) (explaining that “free
government demands the abolition of all distinctions founded on color and
race”). The historical evidence surrounding the framing of the Reconstruction
amendments thus confirms the race-neutral command of the Equal Protection
Clause.
Claim # 676. It is not unlikely that among the Framers were many who would
have applauded a reading of the Equal Protection Clause that states a principle
of universal application. REGENTS OF UNIV. OF CALIFORNIA V. BAKKE, 438
U. S. 265 (1978)

Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L.


Rev. 947, 993 (1995) (stating that the Fourteenth Amendment’s framers
understood it to mean that “legally enforceable civil rights are the same for all .
. . persons . . . without distinction on the basis of race [or] color”)

Claim # 677. Our Constitution is color-blind, and neither knows nor tolerates
classes among citizens. 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. PLESSY V. FERGUSON, 163 U. S.
537 (1896)

Claim # 678. Although the American Revolution freed us from British rule, the
Constitution of the new Nation, while heralding liberty, in effect declared all
men to be free and equal—except black men who were to be neither free nor
equal. BELL V. MARYLAND, 378 U. S. 226 (1964)

Claim # 679. Our Nation was founded on the principle that ‘all Men are created
equal.’ Yet candor requires acknowledgment that the Framers of our
Constitution, to forge the 13 Colonies into one Nation, openly compromised this
principle of equality with its antithesis: slavery. REGENTS OF UNIV. OF
CALIFORNIA V. BAKKE, 438 U. S. 265 (1978)

It would be wrong, however, to suggest that the immorality of slavery was lost
on the Founders. Although our nation's founders were forced to compromise
with the inherited evil of slavery in order to forge a national union, it was their
most fervent prayer that by so doing, slavery would be placed in the course of
ultimate extinction and the stain on our national commitment to the principle of
equality would be forever removed. See, e.g., Thomas Jefferson, Notes on the
State of Virginia, 288-89 (Merrill D. Peterson ed., Library of America 1984)
(1871-72) (“And with what execration should the statesman be loaded, who,
permitting one half the citizens thus to trample on the rights of the other,
transforms those into despots, and these into enemies, destroys the morals of
the one part, and the amor patriae of the other. . . . Indeed I tremble for my
country when I reflect that God is just: that his justice cannot sleep for ever. . . .
the Almighty has no attribute which can take side with us in such a contest
[between slaves and masters]”); James Madison, Address Before the
Constitutional Convention (June 6, 1787), in 1 The Records of the Federal
Convention of 1781, at 135 (Max Farrand ed., Yale Univ. Press 1911) (“We have
seen the mere distinction of colour made in the most enlightened period of
time, a ground of the most oppressive dominion ever exercised by man over
man.”); Benjamin Franklin, Address to the Public from the Pennsylvania Society
for Promoting the Abolition of Slavery (reprinted in J. A. Leo Lemay, ed.,
Benjamin Franklin: Writings 1154 (1987)) ("Slavery is ... an atrocious
debasement of human nature."). See also Thaddeus Stevens, Speech before the
House of Representatives urging passage of the Fourteenth Amendment, Cong.
Globe, 39th Cong. 2459 (May 8, 1866) (“It cannot be denied that this terrible
struggle sprang from the vicious principles incorporated into the institutions of
our country. Our fathers had been compelled to postpone the principles of their
great Declaration, and wait for their full establishment till a more propitious
time. That time ought to be present now”).

The Founders understood that slavery severely tarnished the nation's


commitment to the principle of equality, but they were forced to make what they
thought would be a temporary compromise with the political power of slave
owners in order to secure a national union that could withstand threats from
abroad (and hence keep alive the promise of equality). They thus inserted into
the Constitution specific and (they hoped) temporary protections for
slavery. See U.S. Const. Art. I, § 2, cl. 3 (three fifths clause); Art. IV, § 2, cl. 3
(fugitive slave clause); see also Art. I, § 9, cl. 1 (permitting Congress to prohibit
the slave trade after twenty years). Still, the Founders believed they had placed
slavery in the “course of ultimate extinction” by establishing the principle of
equality in our founding charter. That is why Chief Justice Taney found it
necessary to claim that blacks were not “intended to be included in the general
words used in that memorable instrument” in order to justify his ruling
perpetuating slavery. Dred Scott, 60 U.S., at 407. Earlier courts, however, had
recognized what to the Founders was self-evident: slavery was “contrary to
natural right and the plain principles of justice.” Commonwealth v. Aves, 35
Mass. 193, 210 (1836). Addressing the equality provision in the Massachusetts
Constitution of 1780's Declaration of Rights, for example, the Supreme Judicial
Court of Massachusetts stated: “It would be difficult to select words more
precisely adapted to the abolition of negro slavery.” Id. In Jackson v. Bulloch, 12
Conn. 38, 42-43 (1837), the Connecticut Supreme Court held slavery
unconstitutional because the State constitution's “bill of rights, in its 1st section,
declares, that all men, when they form a social compact, are equal in
rights.” Even the Supreme Court of Mississippi admitted in 1818 that slavery
was “condemned by reason and the laws of nature.” Harry v. Decker & Hopkins,
1 Miss. 36, 42 (1818). Abraham Lincoln's Emancipation Proclamation in 1863
was thus not a revolution in American principle, but a fulfillment of the principle
to which the nation had committed itself four score and seven years earlier, in
the Declaration of Independence.

Claim # 680. The Civil War was the sad consequence of our failure to heed the
Declaration of Independence in the first instance.

See A. Lincoln, Gettysburg Address (1863) (“Fourscore 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.”) Abraham Lincoln rose to the
challenge presented by the Taney Court and, though unfortunately at great cost,
restored our nation's commitment to what Lincoln himself termed “our ancient
faith,” that principle of equality shared by all human beings at all times, that
enabled the most recent immigrant to be on a par with the most revered
daughter of the revolution. See, e.g., A. Lincoln, Speech at Chicago, Illinois (July
10, 1858), reprinted in R. P. Basler ed., 3 Collected Works of Abraham Lincoln
484, 499 (1953) (describing the Declaration's statement of equality as the
“father of all moral principle,” applicable as much to recent immigrants as to
descendants of the framers themselves)

Claim # 681. The acceptance of slavery reflected a fundamental departure from


the American creed, a departure which it took a tragic civil war to set right.
BELL V. MARYLAND, 378 U. S. 226 (1964)

Claim # 682. We of this nation are one people undivided in ability or freedom by
differences in race, color or creed. AKINS V. TEXAS, 325 U. S. 398 (1945)

See Loving v. Virginia, 388 U.S. 1, 11 (1967) (“Over the years, this Court has
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.”)

Claim # 683. 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.
REGENTS OF UNIV. OF CALIFORNIA V. BAKKE, 438 U. S. 265 (1978)

Claim # 684. A core purpose of the Fourteenth Amendment was to do away with
all governmentally imposed discrimination based on race. PALMORE V. SIDOTI,
466 U. S. 429 (1984)

Claim # 685. The Fourteenth Amendment’s central purpose is to prevent the


States from purposefully discriminating between individuals on the basis of
race. Laws that explicitly distinguish between individuals on racial grounds fall
within the core of that prohibition. SHAW V. RENO, 509 U.S. 630 (1993)

Claim # 686. Any individual suffers an injury when he or she is disadvantaged


by the government because of his or her race, whatever that race may be.
ADARAND CONSTRUCTORS, INC. V. PEÑA, 515 U.S. 200 (1995)

Claim # 687. The moral imperative of racial neutrality is the driving force of the
Equal Protection Clause. CITY OF RICHMOND V. J. A. CROSON CO., 488 U. S.
469 (1989)
see also Metro Broad., Inc. v. FCC, 497 U.S. 547, 610 (1990) (O’Connor, J.,
dissenting), overruled by Adarand, 515 U.S. at 227 (explaining that this is a
“Nation not of black and white alone, but one teeming with divergent
communities knitted together by various traditions and carried forth, above all,
by individuals. Upon that basis, we are governed by one Constitution, providing
a single guarantee of equal protection, one that extends equally to all citizens.”).

Claim # 688. However it is rationalized, a preference to any group constitutes


inherent inequality. Our nation gave its word over and over again: it promised in
every document of more than two centuries of history that all persons shall be
treated Equally. Price v. Civil Serv. Comm’n, 604 P.2d 1365 (Cal. 1980)

Only by interpreting the Equal Protection Clause as color-blind and rejecting all
racial classifications can we fulfill this promise.

Claim # 689. Any discrimination on the basis of race must cease, except
(perhaps) as a remedy for government's own prior or continuing discrimination
on the basis of race. The time for mere 'deliberate speed' [to fully enforce this
principle] has run out. BROWN V. BOARD OF EDUCATION OF TOPEKA, 349 U.
S. 294 (1955); GRIFFIN V. SCHOOL BOARD, 377 U. S. 218 (1964); GREEN V.
COUNTY SCH. BD. OF NEW KENT COUNTY, 391 U. S. 430 (1968); CITY OF
RICHMOND V. J. A. CROSON CO., 488 U. S. 469 (1989)

The time for government to cease treating individuals on the basis of their skin
color rather than their merit is long overdue. It is also time to realize that the
principles of the Declaration will likewise not countenance racial discrimination
that purports to remedy for past wrongs against individuals of one race by
conferring benefits upon others who happen to share the same skin color, at the
expense of those who do not.

Claim # 690. The lesson of the great decisions of the Supreme Court and the
lesson of contemporary history have been the same for at least a generation:
discrimination on the basis of race is illegal, immoral, unconstitutional,
inherently wrong, and destructive of democratic society. Alexander M. Bickel,
The Morality of Consent 133 (1975); CITY OF RICHMOND V. J. A. CROSON CO.,
488 U. S. 469 (1989)

Failure to heed this call, as Justice Harlan explained, only serves to “keep alive
the conflict of races” that any classification on the basis of ancestry necessarily
assures. Plessy v. Ferguson, 163 U.S. 537 (1896)

Claim # 691. The fundamental creed upon which this nation was founded is that
“all men are created equal.” Declaration of Independence ¶2
As Abraham Lincoln would later note, the equality principle articulated in the
Declaration is a “great truth, applicable to all men at all times.” Letter from
Abraham Lincoln to H.L. Pierce (Apr. 6, 1859), reprinted in R. P. Basler ed., 3
Collected Works of Abraham Lincoln 374, 376 (1953). The principle had
previously been articulated by John Locke, whose political theory greatly
influenced many of our nation's founders: “All Men by Nature are equal [and
have an] equal Right…to [their] Natural Freedom without being subjected to the
Will or Authority of any other Man.” John Locke, Two Treatises of Civil
Government 346 (P. Laslett, ed., 1963) (1689) (emphasis in original). “All men”
meant all human beings, men as well as women, black as well as white. See,
e.g., James Otis, Rights of the British Colonies Asserted and Proved (“The
colonists are by the law of nature freeborn, as indeed all men are, white or
black”), reprinted in B. Bailyn, ed., Pamphlets of the American Revolution 439
(1965); id. (“Are not women born as free as men? Would it not be infamous to
assert that the ladies are all slaves by nature?”). These sentiments were codified
in the first State constitutions established after the American colonies declared
their independence. The Virginia Declaration of Rights, for example, provided
that “all men are by nature equally free and independent.” Virginia Declaration
of Rights § 1 (1776), reprinted in P. Kurland & R. Lerner, eds., 1 The Founders'
Constitution 6 (1987)'. And the Massachusetts Declaration of Rights stated
simply, “All men are born free and equal[.]” Massachusetts Declaration of
Rights (1780), reprinted in 1 The Founders' Constitution 11'. Even those of the
founders who owned slaves recognized that slavery was inconsistent with the
principle of equality articulated in the Declaration of Independence. “The mass
of mankind has not been born with saddles upon their backs,” wrote Thomas
Jefferson, “nor a favored few, booted and spurred, ready to ride them
legitimately, by the grace of God.” Letter from Thomas Jefferson to Roger C.
Weightman (June 24, 1826), reprinted in M. Petterson, ed., Jefferson: Writings
1516, 1517 (1984). This was true, according to Jefferson, even if people were
not of equal intellectual capacity. “Whatever be their degree of talent it is no
measure of their rights,” wrote Jefferson shortly before the end of his second
term as President. “Because Sir Isaac Newton was superior to others in
understanding, he was not therefore lord of the person or property of
others.” Letter from Thomas Jefferson to Henri Gregoire (Feb. 25, 1809),
reprinted in id. at 1202. The Founders regularly exhibited an understanding of
equality that is strikingly similar to what we today refer to as equality of
opportunity, not equality of result. Indeed, James Madison even described the
“protection of different and unequal faculties” as “the first object of
government.” The Federalist No. 10, at 78 (Rossiter ed. 1961) (1788). Alexander
Hamilton echoed this understanding of equality, one of equal rights and
opportunities despite inequalities of strengths and talents. See The Federalist
No. 36, at 217 (“There are strong minds in every walk of life that will rise
superior to the disadvantages of situation, and will command the tribute due to
their merit, not only from the classes to which they particularly belong, but from
the society in general. The door ought to be equally open to all”; see also J.
Locke, Two Treatises, at 346 (“Age or virtue may give men a just precedency.
Excellency of parts and merit may place others above the common level … yet
all this consists with … the equality I there spoke”).

Claim # 692. To pursue the concept of racial entitlement—even for the most
admirable and benign of purposes—is to reinforce and preserve for future
mischief the way of thinking that produced race slavery, race privilege and race
hatred. In the eyes of government, we are just one race here. It is American.
ADARAND CONSTRUCTORS, INC. V. PEÑA, 515 U.S. 200 (1995)

Claim # 693. It was precisely to eradicate all racial distinctions, invidious as well
as so-called benign, that the Thirteenth, Fourteenth, and Fifteenth Amendments
were added to the Constitution. The primary purpose of these Amendments
was to place the newly freed slaves on an equal footing with whites, but the
language adopted is not limited to such a purpose. It is instead designed to
protect all Americans equally. The Civil Rights Act of 1866 declared that
“citizens, of every race and color … shall have … full and equal benefit of all
laws … and shall be subject to like punishment, pains and penalties, and to
none other.” Civil Rights Act of 1866, 14 Stat. 27 (codified as amended at 42
U.S.C. §1981)

After President Andrew Johnson vetoed the Act, Senator Lyman Trumbull
denounced him, saying that “The bill … simply declares that in civil rights there
shall be equality among all classes of citizens and that all alike shall be subject
to the same punishment….All that is required is that, in this respect, its laws
shall be impartial.” Cong. Globe 39th Cong. 1st Sess. 1760 (1866) (Sen.
Trumbull). Congress overrode Johnson's veto, and passed the Fourteenth
Amendment to guarantee its constitutionality. That Amendment provides that
“no State shall … deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend XIV, § 1, cl. 4. Senator Sherman, one of the
principal authors of the Amendment, hoped that “the common sense, the love of
fair play, and the spirit of liberty which animate the great body of the people of
the United States will cause all those distinctions founded on the old law of
slavery to melt away under the progress of our civilization.” Cong. Globe 42nd
Cong. 2d Sess. 845 (1872). Senator Morton responded that the word
“protection”… means substantially that no person shall be deprived by a State
of the equal benefit of the laws … not simply the protection of the person from
violence, the protection of his property from destruction, but it is substantially
in the sense of the equal benefit of the law….In other words, the States cannot
create inequalities by their own legislation....[The Amendment] was intended to
strike at all class legislation, to provide that laws must be general in their
effects. Cong. Globe 42d Cong. 2d Sess. 846-847 (1872)

Claim # 694. The Civil War Amendments were meant to remove certain burdens
and disabilities, the necessary incidents of slavery, and to secure to all citizens
of every race and color … those fundamental rights which are the essence of
civil freedom, namely, the same right to make and enforce contracts, to sue, be
parties, give evidence, and to inherit, purchase, lease, sell, and convey property
as is enjoyed by white citizens. CIVIL RIGHTS CASES, 109 U.S. 3 (1883)

Claim # 695. The principle of equal protection was purchased at the price of
immeasurable human suffering. ADARAND CONSTRUCTORS, INC. V. PEÑA,
515 U.S. 200 (1995)

Claim # 696. Even if enacted with the best of intentions and thought to be
benign, racial classifications and preferences can be the most divisive of all
policies, containing within them the potential to destroy confidence in the
Constitution and in the idea of equality. GRUTTER V. BOLLINGER, 539 U.S. 306
(2003)

Claim # 697. Classifications based on race carry a danger of stigmatic harm.


Unless they are strictly reserved for remedial settings, they may in fact promote
notions of racial inferiority and lead to a politics of racial hostility. A watered-
down version of equal protection review effectively assures that race will always
be relevant in American life, and that the ultimate goal of eliminating entirely
from governmental decisionmaking such irrelevant factors as a human being’s
race will never be achieved. CITY OF RICHMOND V. J. A. CROSON CO., 488 U.
S. 469 (1989)

To permit the constitutional endorsement of such classifications, for any reason


other than to directly remedy de jure racial discrimination, will ensure that the
promise of individual equality forever remains unfulfilled.

Claim # 698. 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. REGENTS OF UNIV. OF CALIFORNIA V. BAKKE, 438 U. S. 265 (1978)

see also Freeman v. Pitts, 503 U.S. 467, 494 (1992) (“Racial balance is not to be
achieved for its own sake.”); Grutter, 539 U.S. at 388-89 (Kennedy, J.,
dissenting) (“An effort to achieve racial balance . . . is . . . patently
unconstitutional.”). Racial balancing does not strive to achieve equality in any
real sense. Instead, racial balancing operates on the superficial assumption that
people are defined, first and foremost, by the color of their skin. Such a pursuit
improperly subjugates individual equality to promote numerical aesthetics.
Worse still, it plants a badge of inferiority upon those it purports to help. See
Jenkins, 515 U.S. at 114 (Thomas, J., concurring) (“It never ceases to amaze me
that the courts are so willing to assume that anything that is predominantly
black must be inferior.”).

More than five decades have passed since Brown overturned Plessy and
unmasked the ignobility of state-sanctioned racial classifications. In so doing,
the Court fulfilled the promise of the Declaration of Independence and restored
the Fourteenth Amendment’s guarantee of equal protection. And yet sadly, the
heart of Jim Crow beats on. The belief that people are first and foremost
members of a race is alive and well and living under the rubric ‘affirmative
action’—or, as we now call it, ‘diversity.’ Once, affirmative action was seen as a
way to promote equal opportunity, to redress generations of discrimination by
helping those who had been hurt by it. Today, the goal of affirmative action is
racial diversification. . . . But why? When did diversity of skin color become a
virtue? Become the virtue? Racial diversity for its own sake is no more or less
praiseworthy than racial unity for its own sake. Diversity is a condition, not a
state of grace. Sometimes it is good, sometimes bad, usually irrelevant. Only if
the most meaningful thing about each of us is our pigmentation can the quotas
and preferences of affirmative action—or the segregated railway cars of Jim
Crow—make sense. The truth is that few things matter less than our race.
Character matters more. Upbringing matters more. Neighborhood matters
more. Work habits matter more. Aptitude matters more. Beliefs matter more.
The planted axiom, of course, is that all whites speak one way and all blacks
speak another—that there is ‘white’ thinking and ‘black’ thinking, ‘white’
viewpoints and ‘black’ viewpoints. However you slice it, the premise of
affirmative action is that above all else, we are black or we are white. Know a
man’s color, and you know how he thinks, how he acts, what he wants, what he
is. Achieving diversity is simply a matter of getting the racial numbers right.

Claim # 699. Classifications based solely upon race are contrary to our
traditions and hence constitutionally suspect. BOLLING V. SHARPE, 347 U. S.
497 (1954)

Claim # 700. The principle of inherent equality that underlies and infuses our
Constitution. ADARAND CONSTRUCTORS, INC. V. PEÑA, 515 U.S. 200 (1995)

Claim # 701. There cannot be in this Republic, any class of human beings in
practical subjection to another class, with power in the latter to dole out to the
former just such privileges as they may choose to grant. The supreme law of the
land has decreed that no authority shall be exercised in this country upon the
basis of discrimination, in respect of civil rights, against freemen and citizens
because of their race, color, or previous condition of servitude. To that decree—
for the due enforcement of which, by appropriate legislation, Congress has been
invested with express power—everyone must bow, whatever may have been, or
whatever now are, his individual views as to the wisdom or policy, either of the
recent changes in the fundamental law, or of the legislation which has been
enacted to give them effect. CIVIL RIGHTS CASES, 109 U. S. 3 (1883)

Claim # 702. Freedmen are created as equal as are all other American citizens
and with the same unalienable rights to life, liberty, and the pursuit of
happiness. United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 873
(5th Cir. 1966), aff ’d en banc, 380 F.2d 385 (5th Cir. 1967)
Claim # 703. The self-evident proposition enshrined in the Declaration—the
proposition that all men are created equal—is not merely an aspect of social
policy that judges are free to accept or reject; it is a matter of principle that is so
firmly grounded in the 'traditions of our people' that it is properly viewed as a
component of the liberty protected by the Fifth Amendment. John Paul Stevens,
The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 23-24 (Winter,
1992)

Claim # 704. The equal protection principle reflects our Nation's understanding
that racial classifications ultimately have a destructive impact on the individual
and our society. ADARAND CONSTRUCTORS, INC. V. PEÑA, 515 U.S. 200
(1995)

Claim # 705. The Equal Protection Clause does not allow racial classifications
absent a most compelling public necessity because 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.

Claim # 706. Laws which distinguish between people on the basis of race are
incompatible with these foundational principles because they judge people not
as individuals, but as fungible members of a racial class.

Claim # 707. At the heart of the Equal Protection Clause lies the principle that
the Government must treat citizens as individuals, and not as members of racial,
ethnic or religious groups. MISSOURI V. JENKINS, 515 U.S. 70 (1995)

The Constitution's text makes clear that the rights it was designed to protect are
individual rights, not group rights. See U.S. Const. amend. V (“No Person shall
be … deprived of life, liberty or property, without due process of law”); U.S.
Const. amend. XIV (“No state shall…deny to any person within its jurisdiction
the equal protection of the laws”); see also Bakke, 438 U.S., at 289-90 (“The
guarantees of the Fourteenth Amendment extend to all persons …. It is settled
beyond question that the 'rights created by the Fourteenth Amendment are, by
its terms, guaranteed to the individual. The rights established are personal
rights ….'” (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948))); see also
McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 161-162 (1914);
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Oyama v. California, 332
U.S. 633 (1948). Indeed, the Court recognized that the Constitutional protection
is afforded to individuals, not groups, even under the ignominious separate-but-
equal regime approved in Plessy. See McCabe, 235 U.S., at 161-62 (“It is the
individual who is entitled to the equal protection of the laws, and if he is denied
by a common carrier, acting in the matter under the authority of a state law, a
facility or convenience in the course of his journey which, under substantially
the same circumstances, is furnished to another traveler, he may properly
complain that his constitutional privilege has been invaded”). This
understanding of equality as an individual rather than a group right dates back
to the founding. “A nation,” wrote John Dickenson, “is but an assembly of
individuals … [and a] confederation should promote the happiness of
individuals, or it does not answer the intended purpose.” Fabius [John
Dickenson], Observa-tions on the Constitution Proposed by the Federal
Convention III (April 17, 1788), reprinted in B. Bailyn, ed., 2 The Debate on the
Constitution 409, 410 (1993). That is why “distinctions between citizens solely
because of their ancestry are by their very nature odious to a free people whose
institutions are founded upon the doctrine of equality.” Hirabayashi v. United
States, 320 U.S. 81, 100 (1943). “What is [equal protection],” asked the Court in
Strauder v. West Virginia, “but declaring that the law in the States shall be the
same for the black as for the white; that all persons, whether colored or white,
shall stand equal before the laws of the States.” 100 U.S. 303, 307 (1879). The
Court finally held in Brown v. Education and a series of per curiam decisions
decided shortly thereafter that the separate-but-equal doctrine articulated in
Plessy was incompatible with the Fourteenth Amendment's guarantee of equal
protection. At the same time, it also held in Bolling v. Sharpe, 347 U.S. 497
(1954), that the Due Process Clause of the Fifth Amendment afforded
individuals the same equal protection of law from the federal government that
the Fourteenth Amendment guaranteed from state governments. Since Brown,
the rightness of equal protection has come to be widely accepted. See, e.g.,
Freeman v. Pitts, 503 U.S. 467 (1993). Yet government racial classifications
remain in many places. These programs, often called collectively “affirmative
action,” are said to satisfy the Constitutional requirement of equal protection
because they establish “benign” racial classifications. See Adarand I, 515 U.S.,
at 245 (Stevens, J., dissenting). In fact, they violate equal protection, because
they violate the fundamental principle that the protection afforded by the equal
protection clause is afforded to individuals, not groups. Such programs punish
those not included in the favored class, merely because of race, and they place
an unconstitutional badge of inferiority on the alleged “beneficiaries” of such
classifications.

Claim # 708. So-called “benign” racial classifications violate the principle of


equality because they punish those whose race is not favored by the law. Those
disfavored by the classification scheme, solely because of their race, are
essentially being punished for the transgressions of their ancestors who owned
slaves or discriminated against minorities in centuries past—without even
evidence that their actual ancestors transgressed.

This racial classification punishes innocent Americans who are not included
among the preferred class. See U.S. Const. Art. I, § 9; see also Federalist No.44,
at 282 (J. Madison) (noting that Bills of Attainder--an English tradition which
resulted in “corruption of blood” by declaring a family guilty of the crimes of
their ancestor—were “contrary to the first principles of the social compact and
to every principle of sound legislation”).
Claim # 709. There is no constitutional right for any race to be preferred. A
person who is white is entitled to no advantage by reason of that fact; nor is he
subject to any disability, no matter what his race or color. Whatever his race, he
has a constitutional right to have his application considered on its individual
merits in a racially neutral manner. DEFUNIS V. ODEGAARD, 416 U. S. 312
(1974)

See also Bakke, 438 U.S., at 298 (1978) (“there is a measure of inequity in
forcing innocent persons in [Alan Bakke's] position to bear the burdens of
redressing grievances not of their making”); id., at 290 (“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”).

Claim # 710. 'Benign' racial classification is a contradiction in terms. METRO


BROADCASTING V. FCC, 497 U. S. 547 (1990)

Frederick Douglass, speaking to a group of abolitionists almost 140 years ago,


delivered a message lost on today's majority: "In regard to the colored people,
there is always more that is benevolent, I perceive, than just, manifested
towards us. What I ask for the negro is not benevolence, not pity, not sympathy,
but simply justice. Everybody has asked the question, and they learned to ask it
early of the abolitionists, “What shall we do with the Negro?” I have had but
one answer from the beginning. Do nothing with us! Your doing with us has
already played the mischief with us. Do nothing with us! If the apples will not
remain on the tree of their own strength, if they are worm-eaten at the core, if
they are early ripe and disposed to fall, let them fall! I am not for tying or
fastening them on the tree in any way, except by nature’s plan, and if they will
not stay there, let them fall. And if the Negro cannot stand on his own legs, let
him fall also. All I ask is, give him a chance to stand on his own legs! Let him
alone! If you see him on his way to school, let him alone - don’t disturb him - If
you see him going to the dinner-table at a hotel, let him go. If you see him
going to the ballot-box, let him alone - don’t disturb him! If you see him going
into a workshop, just let him alone - your interference is doing him a positive
injury. Let him fall if he cannot stand alone! If the Negro cannot live by the line
of eternal justice the fault will not be yours; it will be His who made the Negro,
and established that line for his government. Let him live or die by that. If you
will only untie his hands, and give him a chance, I think he will live." F.
Douglass, What The Black Man Wants (Jan. 26, 1865), reprinted in J.
Blassingame & J. McKivigan, eds., 4 Frederick Douglass Papers 59, 68-69
(1991); Grutter v. Bollinger, 539 U.S. 306 (2003). In other words, Frederick
Douglass understood “benign” race classifications to be just as pernicious and
harmful even to their supposed beneficiaries as were other racial
classifications. The Court echoed the sentiment in Adarand I: “Absent searching
judicial inquiry into the justification for such race-based measures, there is
simply no way of determining what classifications are 'benign' or 'remedial' and
what classifications are in fact motivated by illegitimate notions of racial
inferiority or simple racial politics.” 515 U.S., at 226 (quoting Croson, 488 U.S.,
at 493)); see also id. (“it may not always be clear that a so-called preference is in
fact benign” (quoting Regents of Univ. of California v. Bakke, 438 U.S. 265, 298
(1978) (opinion of Powell, J.))); Croson, 488 U.S., at 516-17 (Stevens, J.,
concurring in part and concurring in judgment) (“Although [the legislation at
issue] stigmatizes the disadvantaged class with the unproven charge of past
racial discrimination, it actually imposes a greater stigma on its supposed
beneficiaries”); Fullilove v. Klutznick, 448 U.S. 448, 545 (1980) (Stevens, J.,
dissenting) (“a statute of this kind inevitably is perceived by many as resting on
an assumption that those who are granted this special preference are less
qualified in some respect that is identified purely by their race. Because that
perception—especially when fostered by the Congress of the United States—
can only exacerbate rather than reduce racial prejudice, it will delay the time
when race will become a truly irrelevant, or at least insignificant, factor”);
Bakke, 438 U.S., at 295 (opinion of Powell, J.) (noting that the four justices who
argued for lower scrutiny offered “no principle for deciding whether
preferential classify-cations reflect a benign remedial purpose or a malevolent
stigmatic classification”).

Claim # 711. “Benign” racial classifications amount to a legislative declaration


that minority groups are incapable of competing in the marketplace and must
be given special assistance. The result is a growing tendency to presume that
those minority group members who do succeed were unable to compete fairly,
but instead were beneficiaries of government “help.” By formally drawing racial
and ethnic lines, affirmative action invites judgments about the abilities and
achievements of those who are members of the targeted groups. One persistent
judgment is that those who received a benefit through affirmative action could
not have secured it on their own.

Claim # 712. Racial paternalism hurts minority group members by not teaching
them to compete fairly in the marketplace, and by provoking resentment among
those who believe that they have been wronged by the government's use of
race. ADARAND CONSTRUCTORS, INC. V. PEÑA, 515 U.S. 200 (1995)

This racial classification constitutes a badge of inferiority because it presumes


that minority group members are incapable of competing in the marketplace.
“Benign” racial classifications in the law punish innocent individuals, yet that is
not the only reason such classifications are constitutionally problematic. As the
Court noted in Anderson v. Martin, “the vice lies not in the resulting injury but
in the placing of the power of the State behind a racial classification that
induces racial prejudice.” 375 U.S. 399, 402 (1964)

Claim # 713. Paternalism is at war with the principle of inherent equality that
underlies and infuses our Constitution. ADARAND CONSTRUCTORS, INC. V.
PEÑA, 515 U.S. 200 (1995)
Claim # 714. Paternalistic programs constitute badges of slavery and servitude.
CIVIL RIGHTS CASES, 109 U. S. 3 (1883)

They are akin to legislation that once blocked women from entering a variety of
professions, which was “apparently designed to benefit or protect women [but]
could often, perversely, have the opposite effect.” Ruth Bader Ginsburg,
Constitutional Adjudication in the United States As A Means of Advancing The
Equal Statute of Men And Women under The Law, 26 Hofstra L. Rev. 263, 269
(Winter, 1997). Such legislation was “ostensibly to shield or favor the sex
regarded as fairer but weaker, and dependent-prone,” id., but was in fact
“premised on the notion that women could not cope with the world beyond
hearth and home without a father, husband, or big brother to guide them.” Id.,
at 270. In exactly the same way, racial set-asides are ostensibly designed to
shield minority group members, but in fact are premised on the notion that they
are incapable of competing without a big brother—a white big brother—to
guide them. The government may defend these programs by claiming that they
are “entirely rational,” because minorities as a class are more in need of
financial assistance than are whites, but under strict scrutiny, laws reflecting the
situation of the average minority member are no longer good enough. Cf. id., at
268. Indeed, this court explicitly rejected the same statistical arguments
proferred by the government and accepted by the Tenth Circuit below when
they were put forward in Justice Marshall's dissenting opinion in Croson. See
488 U.S., at 504-506. Laws act upon individuals, and the principle of equal
protection does not permit the government to attach a badge of inferiority to
racial groups merely to achieve some statistical race balance. See Adarand I,
515 U.S. at 241 (Thomas, J., concurring).

Claim # 715. Government can never have a 'compelling interest' in


discriminating on the basis of race in order to 'make up' for past racial
discrimination in the opposite direction. ADARAND CONSTRUCTORS, INC. V.
PEÑA, 515 U.S. 200 (1995)

Claim # 716. The classification of persons on the basis of race for the purpose of
diversity frustrates, rather than facilitates, the goals of equal protection.
Hopwood v. State of Texas, 78 F.3d 932, 944 (5th Cir. 1996)

Claim # 717. Apart from remedying past or ongoing discrimination by


government itself (and even then only when the classification is narrowly
tailored to provide the remedy only to those who were actually discriminated
against), Government can have no legitimate—let alone “compelling”—interest
in creating racial categories among citizens, regardless of whether the
categorizations are classified as “benign” or “malign.”

Government has no compelling interest in dividing Americans by race.


Recognizing that there is virtually no legitimate reason for classifying
individuals according to race, this Court subjects such classifications to the
strictest of scrutiny. Adarand I, 515 U.S., at 227; see also id., at 236 (agreeing
with Justice Stevens dissenting opinion in Fullilove contending for strict
scrutiny “"because racial characteristics so seldom provide a relevant basis for
disparate treatment, and because classifications based on race are potentially so
harmful to the entire body politic”). Apart from remedying past or ongoing
discrimination by government itself (and even then only when the classification
is narrowly tailored to provide the remedy only to those who were actually
discriminated against), Government can have no legitimate--let alone
“compelling”--interest in creating racial categories among citizens, regardless
of whether the categorizations are classified as “benign” or “malign.” As Justice
Harlan noted in his Plessy dissent, “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…. 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 involved.” 163 U.S. at 554-555 (Harlan, J., dissenting); see
also Buchanan v. Warley, 245 U.S. 60, 73-74 (1917) (“the police power, broad
as it is, cannot justify the passage of a law or ordinance which runs counter to
the limitations of the Federal Constitution”); Cooper v. Aaron, 358 U.S. 1, 16
(1958) (“'It is urged that this proposed segregation will promote the public
peace by preventing race conflicts. Desirable as this is … this aim cannot be
accomplished by laws or ordinances which deny rights created or protected by
the Federal Constitution'” (quoting Buchanan, 245 U.S., at 81)); Watson v.
Memphis, 373 U.S. 526, 536 (1963) (asserted purpose of preventing racial
conflict is insufficient to overcome equal protection guaranties); Palmore v.
Sidoti, 466 U.S. 249, 434 (1984) (“effects of racial prejudice, however real,
cannot justify a racial classification removing an infant child from the custody of
its natural mother found to be an appropriate person to have such custody”);
Adarand I, 515 U.S. at 239 (Scalia, J., concurring in part) (“government can
never have a 'compelling interest' in discriminating on the basis of race in order
to 'make up' for past racial discrimination in the opposite direction.”)

A variety of alleged justifications for racial classifications have been proffered


to, and rejected by, the Court. See E. Chemerinsky, Constitutional Law:
Principles And Policies 590-593 (1997). The so-called “diversity rationale”
suggested by Justice Powell's separate opinion in Bakke, 438 U.S., at 314, was
rejected in Adarand I, 515 U.S., at 226. See also Hopwood v. Texas, 78 F.3d
932, 944, cert. denied, 518 U.S. 1033 (1996) (“Justice Powell's argument in
Bakke garnered only his own vote and has never represented the view of a
majority of the Court in Bakke or any other case…. [T]he classification of
persons on the basis of race for the purpose of diversity frustrates, rather than
facilitates, the goals of equal protection.”); Johnson v. Board of Regents of the
Univ. Sys. of Georgia, 106 F. Supp. 2d 1362, 1368-69 (S.D. Ga. 2000). The
justification of racial categories in order to “provide role models” was likewise
rejected in Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 275-276 (1986). The
suggestion that racial classifications may be used to remedy general social
discrimination has also been rejected. Id., at 274. The only interest the Court
has accepted as justifying racial classifications is to remedy actual past
discrimination by the government agency involved. Croson, 488 U.S., at 493
(“Classifications based on race carry a danger of stigmatic harm. Unless they
are strictly reserved for remedial settings, they may in fact promote notions of
racial inferiority and lead to a politics of racial hostility.”); Adarand I, 515 U.S.,
at 237. Racial classifications are not abandoned easily. Experience has shown
that racism is not overcome easily. The Court spent more than two decades
fighting such classifications after the Brown I case. Yet, America has made
remarkable progress. Today, Americans generally believe that race is an
illegitimate factor for government classification. Across the country, Americans
have rejected the notion of racial classifications, including supposedly “benign”
ones. See C. Bolick, Blacks and Whites on Common Ground, 10 Stan. L. & Pol'y
Rev 155, 158 (Spring 1999)''(citing polls which show that “although blacks and
whites have differences over racial preferences, many (if not most) blacks agree
with a large majority of their fellow Americans that preferences are wrong.”);
Eastland, supra, at 164-165 (same).

Claim # 718. Central both to the idea of the rule of law and to our own
Constitution's guarantee of equal protection is the principle that government
and each of its parts remain open on impartial terms to all who seek its
assistance. A law declaring that in general it shall be more difficult for one
group of citizens than for all others to seek aid from the government is itself a
denial of equal protection of the laws in the most literal sense. ROMER V.
EVANS, 517 U.S. 620 (1996)

Claim # 719. The point of the Equal Protection Clause is not to enforce strict
race-mixing, but to ensure that blacks and whites are treated equally by the
State without regard to their skin color. MISSOURI V. JENKINS, 515 U.S. 70
(1995)

Claim # 720. The use of a racial characteristic to establish a presumption that


the individual also possesses other, and socially relevant, characteristics,
exemplifies, encourages, and legitimizes the mode of thought and behavior that
underlies most prejudice and bigotry in modern America. R. Posner, The
DeFunis Case and the Constitutionality of Preferential Treatment of Racial
Minorities, 1974 Sup. Ct. Rev. 12 (1974)

Claim # 721. The immediate impulse for the passage of the Fourteenth
Amendment was to constitutionalize the Civil Rights Act of 1866. This was an
attempt to put the question of citizenship and matters of Federal civil rights
beyond the reach of simple congressional majorities. Thus it is clear that the
idea of allegiance ("not subject to any foreign power") was somehow central to
understanding the jurisdiction clause of the Fourteenth Amendment.
Claim # 722. 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. Amendment XIV [1868] Section 1

Claim # 723. Every person born within the limits of the United States, and
subject to their jurisdiction, is by virtue of natural law and national law a citizen
of the United States. This will not, of course, include persons born in the United
States who are foreigners, aliens, who belong to the families of ambassadors or
foreign ministers accredited to the Government of the United States, but will
include every other class of persons. It settles the great question of citizenship
and removes all doubt as to what persons are or are not citizens of the United
States. This has long been a great desideratum in the jurisprudence and
legislation of this country. Senator Jacob Merritt Howard. CONGRESSIONAL
GLOBE, 39th Cong., 1st Sess. 2890 (1866)

Claim # 724. The mere fact that a man is born in the country has not heretofore
entitled him to the right to exercise political power. Senator Edgar Cowan.
CONGRESSIONAL GLOBE, 39th Cong., 1st Sess. 2890 (1866)

Claim # 725. Those who framed the Fourteenth Amendment, and the Congress
which proposed it, as well as the legislatures which adopted it, understood that
the Indian tribes were not made citizens, but were excluded by the restricting
phrase, "and subject to the jurisdiction," and that such has been the universal
understanding of all our public men since the Amendment became a part of the
Constitution.

Claim # 726. The jurisdiction clause of the Fourteenth Amendment was


intended by its framers to have independent force; not all persons born in the
geographical limits of the United States are within the jurisdiction of the United
States. To be within the jurisdiction of the United States means to be within its
political jurisdiction. Those who today advocate birth-right citizenship for
children of illegal aliens born within the geographical boundaries of the United
States believe that the fourteenth amendment extends to these children what
the framers of the fourteenth amendment said did not extend to Native
Americans.

As the Supreme Court said in Elk v. Wilkins (1884), "the evident meaning of [the
jurisdiction clause] is, not merely subject in some respect or degree to the to the
jurisdiction of the United States, but completely subject to their political
jurisdiction and owing them direct and immediate allegiance . . . Indians, born
within the territorial limits of the United States, members of and owing
immediate allegiance to one of the Indian Tribes, an alien though dependent
power, although in a geographical sense born in the United States, are no more
born in the United States and subject to the jurisdiction thereof,' . . . than the
children of subjects of any foreign government born within the domain of that
government; or the children, born within the United States, of ambassadors or
other public ministers of foreign Nations."

Indeed, if anything, American Indians, as members of tribes that were


themselves dependent upon the United States (and hence themselves subject to
its jurisdiction), had a stronger claim to citizenship under the Fourteenth
Amendment merely by virtue of their birth within the territorial jurisdiction of
the United States than did children of foreign nationals. But the Court in Elk
rejected even that claim and in the process necessarily rejected the claim that
the phrase, “subject to the jurisdiction” of the United States, meant merely
territorial jurisdiction as opposed to complete, political jurisdiction. Such was
the interpretation of the Citizenship Clause initially given by the Supreme Court,
and it was the correct interpretation.

In this case, Elk had renounced his tribal allegiance and had lived for some
years apart from the tribe. But the Court was adamant that the ascription of
citizenship could not be a unilateral or self-selected act. "The alien and
dependent condition of the members of the Indian Tribes could not be put off at
their own will, without the action or assent of the United States" signified either
by treaty or legislation. Neither "the Indian Tribes" nor "individual members of
those Tribes," no more than "other foreigners" can "become citizens of their
own will." It must be emphasized that no individual can be made a citizen
against his will or consent. Yet, self-selected citizenship is not enough; it must
be ratified by those are already members of the political community. As the
Court concluded, the jurisdiction requirement of the fourteenth amendment
embodied "the principle that no one can become a citizen of a nation without its
consent."

The Supreme Court in Elk noted that several congressional acts had been
passed subsequent to the fourteenth amendment to bring various Indian tribes
within the jurisdiction of the United States, acts "which would have been
superfluous if they were or might become, without an action of the government,
citizens of the United States." In this regard, the Court mentions the "Act of July
15, 1870," extending the jurisdiction of the United States to any member of the
Winnebago tribe who desired to become a citizen. A similar act was passed on
March 3, 1873, extending jurisdiction to members of the Miami tribe of Kansas.
Indeed, this was the method used by Congress exercising its section 5 powers
to enforce the provisions of the fourteenth amendment to bring various
members of Indian tribes within the jurisdiction of the United States. General
legislation was passed in the Indian Citizenship Act of 1924 which provided that
"all non-citizen Indians born within the territorial limits of the United States be,
and they are hereby, declared to be citizens of the United States." Most
recently, the amnesty provision of the Immigration Reform and Control Act of
1986 extended the jurisdiction of the United States to include illegal aliens
residing in the United States for a specified period. Thus, Congress has a long
history of exercising its section 5 powers to define who falls within the
jurisdiction of the United States.

Claim # 727. The republican basis for citizenship is consent. This is the natural
law principle of the Declaration of Independence that proclaims that legitimate
governments derive "their just powers from the consent of the governed."

Claim # 728. Governments are instituted among particular peoples, comprised


of naturally equal human beings, to secure for themselves certain unalienable
rights. Such governments, in order to be legitimate, must be grounded in the
consent of the governed—a necessary corollary to the self-evident proposition
of equality. This consent must be present, either explicitly or tacitly, not just in
the formation of the government, but also in the ongoing decision whether to
embrace others within the social compact of the particular people.

Claim # 729. The end of the institution, maintenance, and administration of


government, is to secure the existence of the body-politic, to protect it, and to
furnish the individuals who compose it with the power of enjoying in safety and
tranquility their natural rights. The body-politic is formed by a voluntary
association of individuals; it is a social compact by which the whole people
covenants with each citizen and each citizen with the whole people that all shall
be governed by certain laws for the common good.

Claim # 730. The social contract requires reciprocal consent. Not only must the
individual consent to be governed, but he must also be accepted by the
community as a whole. If all persons born within the geographical limits of the
United States are to be counted citizens—even those whose parents are in the
United States illegally— then this would be tantamount to the conferral of
citizenship without the consent of the whole people. In other words, birthright
citizenship is contrary to the principle of consent that is one of the bedrock
principles of the American regime.

Such a claim of birthright citizenship traces its roots not to the republicanism of
the American Founding, grounded as it was in the consent of the governed, but
to the feudalism of medieval England, grounded in the notion that a subject
owed perpetual allegiance and fealty to his sovereign. A necessary corollary of
the feudal notion of citizenship was the ban on expatriation, embraced by
England and described by Blackstone as follows:

Natural allegiance is such as is due from all men born within the king’s
dominions immediately upon their birth. For, immediately upon their birth, they
are under the king’s protection…Natural allegiance is therefore a debt of
gratitude; which cannot be forfeited, canceled, or altered, by any change of
time, place, or circumstance…For it is a principle of universal law, that the
natural-born subject of one prince cannot by any act of his own, no, not by
swearing allegiance to another, put off or discharge his natural allegiance to the
former: for this natural allegiance was intrinsic, and primitive, and antecedent to
the other, and cannot be divested without the concurrence act of that prince to
whom it was first due. (William Blackstone, 1 Commentaries on the Laws of
England 357–58 (1979) (1765).)

Claim # 731. When Congress passed as a companion to the Fourteenth


Amendment the Expatriation Act of 1868, which provided simply that "the right
of expatriation is a natural and inherent right of all people, indispensable to the
enjoyment of the rights of life, liberty, and the pursuit of happiness," it
necessarily rejected the feudal birthright citizenship doctrine of medieval
England as fundamentally incompatible with the principles of the Declaration of
Independence. Such remnants of feudalism were rejected by our nation’s
Founders when they declared to a candid world that they no longer owed
allegiance to the king of their birth. They were rejected again by the Congress
in 1866 and by the nation when it ratified the Fourteenth Amendment.

Claim # 732. Only a complete jurisdiction, of the kind that brings with it a total
and exclusive allegiance, is sufficient to qualify for the grant of citizenship to
which the people of the United States actually consented.

Claim # 733. The word "jurisdiction" under the Fourteenth Amendment must be
understood to mean absolute and complete jurisdiction, such as the United
States had over its citizens before the adoption of this amendment.

Claim # 734. To be entitled constitutionally to United States citizenship, one


must not just be born in the United States, but be subject to the jurisdiction
thereof. To claim that "it is impossible to construe the words 'subject to the
jurisdiction thereof' as less comprehensive than the words 'within its
jurisdiction, '" as the Wong Kim Ark court did, is to disregard the significance of
the word, "subject." When used in relation to citizenship, the word means more
than mere physical presence, but expresses an allegiance or fidelity to the
nation within whose boundaries one found oneself. Thus, one does not lose
one's citizenship simply by removing oneself from within the physical
boundaries of a nation, but only by acts demonstrating a breaking of allegiance
or fidelity.

Claim # 735. To be born "subject to the jurisdiction" of the United States is not
just to be physically present within the nation’s boundaries. Rather, to be
"subject" is to evidence allegiance and fidelity to the American nation.

Claim # 736. The words "subject to the jurisdiction thereof" as employed under
the Fourteenth Amendment mean: absence of owing any allegiance to any other
foreign power, which in return allows the United States to exercise full and
complete jurisdiction over the person.
Claim # 737. A citizen by birth must not only be born within the United States,
but he must also be subject to the jurisdiction thereof; and by this is meant that
full and complete jurisdiction to which citizens generally are subject, and not
any qualified and partial jurisdiction, such as may consist with allegiance to
some other government. Thomas M. Cooley, The General Principles Of
Constitutional Law In The United States Of America 270 (Boston, Little, Brown,
& Co. 1898)

Claim # 738. The phrase, "subject to its jurisdiction" was intended to exclude
from its operation children of ministers, consuls, and citizens or subjects of
foreign States born within the United States. SLAUGHTERHOUSE CASES, 83 U.
S. 36 (1872)

Claim # 739. The main object of the opening sentence of the fourteenth
amendment was to settle the question, upon which there had been a difference
of opinion throughout the country, as to the citizenship of free negroes, and to
put it beyond doubt that all persons, white or black, and whether formerly slaves
or not, born or naturalized in the United States, and owing no allegiance to any
alien power, should be citizens of the United States and of the state in which
they reside. ELK v. WILKINS, 112 U.S. 94 (1884)

Claim # 740. The evident meaning of the words 'all persons born or naturalized
in the United States, and subject to the jurisdiction thereof' is, not merely
subject in some respect or degree to the jurisdiction of the United States, but
completely subject to their political jurisdiction, and owing them direct and
immediate allegiance.

Claim # 741. The words "subject to the jurisdiction thereof" in the amendment
are synonymous with the words "and not subject to any foreign power". U.S. v.
WONG KIM ARK, 169 U.S. 649 (1898)

Claim # 742. If the act of 1866 had not contained the words 'and not subject to
any foreign power,' the children neither of public ministers nor of aliens in
territory in hostile occupation would have been included within its terms on any
proper construction, for their birth would not have subjected them to ties of
allegiance, whether local and temporary, or general and permanent. There was
no necessity as to them for the insertion of the words, although they were
embraced by them. But there were others in respect of whom the exception was
needed, namely, the children of aliens, whose parents owed local and temporary
allegiance merely, remaining subject to a foreign power by virtue of the tie of
permanent allegiance, which they had not severed by formal abjuration or
equivalent conduct, and some of whom were not permitted to do so if they
would. And it was to prevent the acquisition of citizenship by the children of
such aliens merely by birth within the geographical limits of the United States
that the words were inserted.
Claim # 743. "Subject to the jurisdiction" of the United States means simply that
the person does not owe allegiance, partial allegiance if you please, to some
other government. In other words, rather than believing that presence in the
United States would immediately and automatically oust any and all other
allegiances to other governments, the authors of the jurisdiction requirement
believed that allegiance to a foreign government could remain even while an
alien was within the territory of the United States. The remaining allegiance to a
foreign power, even if only "partial," was cognizable in determining whether
someone was "subject to the jurisdiction" of the United States.

Claim # 744. If a person retains even some allegiance to another government


while within the United States, the person is not subject to the "complete
jurisdiction" of the United States.

Claim # 745. Persons born of citizens have no such partial allegiances. Persons
on the road to citizenship or otherwise precluded from immediate citizenship
could demonstrate allegiance through their intentions to join society as best
they could. They have, in other words, "talismans of dedicated attachment."
Rogers v. Bellei, 401 U.S. at 834. Persons who were only temporary
"sojourners" would have more difficulty demonstrating they did not have at
least partial allegiances to another power.

Claim # 746. The words "subject to the jurisdiction of the United States" mean
subject to its complete jurisdiction, not owing allegiance to anybody else. It
cannot be said of any person who owes allegiance to some other Government
that he is "subject to the jurisdiction of the United States." It is only those
persons who completely within our jurisdiction, who are subject to our laws,
that we think of making citizens; and there can be no objection to the
proposition that such persons should be citizens. Sen. Lyman Trumbull,
Chairman of the Judiciary Committee, author of the Thirteenth Amendment.
CONGRESSIONAL GLOBE, 39th Congress, 1st Sess., 2893 (May 30, 1866)

Claim # 747. The words 'subject to the jurisdiction of the United States' mean
fully and completely subject to the jurisdiction of the United States.
CONGRESSIONAL GLOBE, 39th Congress (1866) pg. 2897

Claim # 748. The word "jurisdiction" ought to be construed so as to imply a full


and complete jurisdiction on the part of the United States, whether exercised by
Congress, by the executive, or by the judicial department; that is to say, the
same jurisdiction in extent and quality as applies to every citizen of the United
States now. In other words, only children born to American citizens can be
considered citizens of the United States. Citizenship by birth is established by
the jurisdiction which the United States already has over the parents of the
child. Sen. Jacob Howard. CONGRESSIONAL GLOBE, 39th Congress (1866) pg.
2895
Claim # 749. All persons born within the territory of the United States to parents
who at the time were subject to the authority of the United States are citizens of
the United States. CONGRESSIONAL GLOBE, 39th Congress (1866) pg. 2893

Claim # 750. The authors of the Fourteenth Amendment did not want to grant
citizenship to every person born in the United States. They wanted to grant
citizenship only to persons born here who were also "subject to the jurisdiction"
of the United States. They understood that phrase to be the same as the phrase
"and not subject to any foreign Power," used in the recent civil rights bill. And
by "subject to the jurisdiction," they meant "subject to the jurisdiction of the
United States in every sense," and "not owing allegiance to anybody else." Even
"partial allegiance" was sufficient to demonstrate that a person was not subject
to the "complete jurisdiction" of the United States. The authors made a
distinction between those within the jurisdiction of the United States and "a
sojourner in the United States," or "a traveler who comes here from Ethiopia,
from Australia, or from Great Britain." In other words, the authors of the
jurisdiction requirement were concerned about "drive-by citizenship" and
thought that the jurisdiction requirement would exclude persons who had even
a "partial allegiance" to another government.

Claim # 751. Aliens are the subjects of a foreign power.

Claim # 752. An alien is one who has no allegiance to the United States and who
was not born "Subject to the Jurisdiction" of the United States.

Claim # 753. The fact of birth, under circumstances implying alien subjection,
establishes, of itself, no right of citizenship. Ruling of Secretary Frelinghuysen
in the matter of Hausding. UNITED STATES V. WONG KIM ARK, 169 U. S. 649
(1898)

Claim # 754. One born a foreign subject, but within the United States, is not
under the statute and the Constitution a citizen of the United States by birth.
Ruling of Secretary Bayard in the matter of Greisser. UNITED STATES V.
WONG KIM ARK, 169 U. S. 649 (1898)

Greisser was born in the State of Ohio in 1867, his father being a German
subject and domiciled in Germany, to which country the child returned. After
quoting the act of 1866 and the Fourteenth Amendment, Mr. Secretary Bayard
said: Richard Greisser was no doubt born in the United States, but he was on
his birth "subject to a foreign power," and "not subject to the jurisdiction of the
United States." He was not, therefore, under the statute and the Constitution a
citizen of the United States by birth, and it is not pretended that he has any
other title to citizenship.

Claim # 755. A citizen or subject of any foreign power, however long he may be
domiciled in this country, does not become a citizen of the United States or
surrender his allegiance to the foreign government of his birth unless he does in
accordance with our local law declare his intention to sever that foreign
allegiance, or in accordance therewith take an oath of allegiance to our
Constitution and our government, and renounce allegiance to every foreign
government.

Claim # 756. The right of expatriation is one of the fundamental principles of


American Government. Expatriation is what distinguishes American law with
that of the English common law, leaving the two entirely incompatible with each
other.

Claim # 757. The principles of the Declaration of Independence necessarily


mean that the right of expatriation is inherent and natural in man as man.

Claim # 758. From the Declaration of Independence to this day, the United
States have rejected the doctrine of indissoluble allegiance, and maintained the
general right of expatriation, to be exercised in subordination to the public
interests, and subject to regulation. As early as the act of January 29, 1795 (1
Stat. 414, c. 20), applicants for naturalization were required to take, not simply
an oath to support the constitution of the United States, but of absolute
renunciation and abjuration of all allegiance and fidelity to every foreign prince
or state, and particularly to the prince or state of which they were before the
citizens or subjects. U.S. V. WONG KIM ARK, 169 U.S. 649 (1898)

Claim # 759. Expatriation is the voluntary renunciation or abandonment of


nationality and allegiance. In order to be relieved of the duties of allegiance,
consent of the sovereign is required. Congress has provided that the right of
expatriation is a natural and inherent right of all people, and has further made a
legislative declaration as to what acts shall amount to an exercise of such
right. MACKENZI V. HARE, 1915, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297;
PERKINS V. ELG, 307 U.S. 325; 59 S.Ct. 884; 83 L.Ed 1320 (1939); TOMOYA
KAWAKITA V. UNITED STATES, 190 F.2d 506 (1951)

Claim # 760. The United States has supported the right of expatriation as a
natural and inherent right of all people. Denial, restriction, impairment or
questioning of that right was declared by Congress, in 1868, to be inconsistent
with the fundamental principles of this Government. From the beginning, one of
the most obvious and effective forms of expatriation has been that of
naturalization under the laws of another nation. However, due to the common-
law prohibition of expatriation without the consent of the sovereign, our courts
hesitated to recognize expatriation of our citizens, even by foreign
naturalization, without the express consent of our Government. Congress finally
gave its consent upon the specific terms stated in the Citizenship Act of 1907
and in its successor, the Nationality Act of 1940. Those Acts are to be read in
the light of the declaration of policy favoring freedom of expatriation which
stands unrepealed. SAVORGNAN V. UNITED STATES, 338 U.S. 491 (1950)
Claim # 761. The United States has long recognized the general undesirability
of dual allegiances. Since 1795, Congress has required any alien seeking
American citizenship to declare "that he both absolutely and entirely renounce
and abjure all allegiance and fidelity to every foreign prince, potentate, state or
sovereignty whatever, and particularly by name, the prince, potentate, state or
sovereignty, whereof he was before a citizen or subject; . . . ." 1 Stat. 414, see 8
U.S.C. 735 (a). Temporary or limited duality of citizenship has arisen inevitably
from differences in the laws of the respective nations as to when naturalization
and expatriation shall become effective. There is nothing, however, in the Act of
1907 that implies a congressional intent that, after an American citizen has
performed an overt act which spells expatriation under the wording of the
statute, he, nevertheless, can preserve for himself a duality of citizenship by
showing his intent or understanding to have been contrary to the usual legal
consequences of such an act. SAVORGNAN V. UNITED STATES, 338 U.S. 491
(1950)

Claim # 762. Citizenship is man's basic right, for it is nothing less than the right
to have rights. Remove this priceless possession and there remains a stateless
person, disgraced and degraded in the eyes of his countrymen. He has no lawful
claim to protection from any nation, and no nation may assert rights on his
behalf. Whatever may be the scope of its powers to regulate the conduct and
affairs of all persons within its jurisdiction, a government of the people cannot
take away their citizenship simply because one branch of that government can
be said to have a conceivably rational basis for wanting to do so. The basic
constitutional provision crystallizing the right of citizenship is the first sentence
of section one of the Fourteenth Amendment. It is there provided that 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.
United States citizenship is thus the constitutional birthright of every person
born in this country.

Claim # 763. The rights of citizenship of the native born and of the naturalized
person are of the same dignity, and are coextensive. The only difference drawn
by the Constitution is that only the "natural born" citizen is eligible to be
President. Art. II, § 1. While the rights of citizenship of the native born derive
from § 1 of the Fourteenth Amendment and the rights of the naturalized citizen
derive from satisfying, free of fraud, the requirements set by Congress, the
latter, apart from the exception noted, becomes a member of the society,
possessing all the rights of a native citizen, and standing, in the view of the
constitution, on the footing of a native. The constitution does not authorize
Congress to enlarge or abridge those rights. The simple power of the national
Legislature is to prescribe a uniform rule of naturalization, and the exercise of
this power exhausts it so far as respects the individual. Under our form of
government, as established by the Constitution, the citizenship of the lawfully
naturalized and the native-born cannot be taken from them. There is no
question that citizenship may be voluntarily relinquished. The right of voluntary
expatriation was recognized by Congress in 1868. Congress declared that "the
right of expatriation is a natural and inherent right of all people. . . ." Although
the primary purpose of this declaration was the protection of our naturalized
citizens from the claims of their countries of origin, the language was properly
regarded as establishing the reciprocal right of American citizens to abjure their
allegiance. In the early days of this Nation, the right of expatriation had been a
matter of controversy. The common law doctrine of perpetual allegiance was
evident in the opinions of this Court. And, although impressment of naturalized
American seamen of British birth was a cause of the War of 1812, the executive
officials of this Government were not unwavering in their support of the right of
expatriation. Prior to 1868, all efforts to obtain congressional enactments
concerning expatriation failed. The doctrine of perpetual allegiance, however,
was so ill-suited to the growing nation whose doors were open to immigrants
from abroad that it could not last. Nine years before Congress acted, Attorney
General Black stated the American position in a notable opinion: Here in the
United States, the thought of giving it [the right of expatriation] up cannot be
entertained for a moment. Upon that principle, this country was populated. We
owe to it our existence as a nation. Ever since our independence, we have
upheld and maintained it by every form of words and acts. We have constantly
promised full and complete protection to all persons who should come here and
seek it by renouncing their natural allegiance and transferring their fealty to us.
We stand pledged to it in the face of the whole world. OSBORN V. BANK OF
THE UNITED STATES, 22 U. S. 738 (1824); PEREZ V. BROWNELL, 356 U.S. 44
(1958); SCHNEIDER V. RUSK, 377 U. S. 163 (1964)

Claim # 764. The notion of birth-right citizenship is an indefensible feudal


doctrine of indefeasible allegiance.

Claim # 765. The argument for birth-right citizenship is more suitable to


feudalism than it is to republicanism. Under the feudal concept of citizenship,
anyone born under the protection of the sovereign owed perpetual allegiance or
fealty to the sovereign. It is hardly credible that the framers of the American
Constitution would have contemplated a basis for citizenship that had its origins
in the feudal regime. Indeed, in basing citizenship on the consent of the
governed, the obligations of citizenship were placed on an entirely new and
republican basis. The Reconstruction Congress recognized this point when it
passed the Expatriation Act of 1868. This act a companion piece to the
fourteenth amendment was an explicit rejection of birth-right citizenship as the
ground for American citizenship. It simply declared that "the right of
expatriation is a natural and inherent right of all people, indispensable to the
enjoyment of the rights of life, liberty, and the pursuit of happiness." Thus the
English common law doctrine of birth-right citizenship was decisively rejected
as incompatible with the principles of consent embodied in the Declaration of
Independence. After all, the Declaration of Independence announced to the
world that Americans no longer considered themselves to be British citizens.
Claim # 766. If Americans held to the notion of birth-right citizenship, they
would have been incapable of declaring their independence from Britain!

Claim # 767. Jurisdiction is not a geographical concept; it is a matter of political


allegiance. Birth-right citizenship has no place in republican government; it is
the relic of monarchy and should be recognized as such once again by
Congress.

Claim # 768. The English common law became a part of the American system
only insofar as it was consistent with the principles of republican government.

Claim # 769. The one fundamental principle of the revolution was the assertion
of the competence of American legislatures to pass legislation independently of
the common law. In some cases, aspects of the common law were accepted as a
matter of convenience, in others it was rejected outright as incompatible with
the principles of a free and self-governing nation. Surely the notion of birth-
right citizenship, with its requirement of indefeasible allegiance to a king, was
one of those aspects of the common that was rejected by the principles of the
Declaration of Independence.

Claim # 770. Among a host of other considerations, birth-right citizenship


denies that the people always retain the natural right to revolution, a right that
is the fundamental right of rights described in the Declaration of Independence.

Claim # 771. The English common law was not adopted except so far as
applicable to our situation and our form of government. The very origin and
nature of our institutions utterly forbid the idea that the doctrine of perpetual
allegiance is consistent with our institutions.

Claim # 772. The right of expatriation is clearly implied as inalienable in the


enumeration of rights in the Declaration of Independence, and its obstruction
was one of the wrongs charged by the colonies against the English crown.

Claim # 773. There can be no doubt whatsoever that the fortieth Congress that
passed the Expatriation Act believed that it contained a thoroughgoing
repudiation of the English common law notion of birth-right citizenship and its
attendant requirement of perpetual allegiance. Since this Act was
contemporaneous with the adoption of the Fourteenth Amendment, there can
be little doubt that it also embraced the principle of citizenship that was
embodied in the amendment. Reciprocal consent is the principle of citizenship
embraced in the Fourteenth Amendment and the Expatriation Act is a
confirmation of that principle.

Claim # 774. The British common law defining who is a British subject is ill-
suited to define American citizenship. The British common law definition is
based upon a principle totally foreign to the American polity. In Britain, a
"natural-born subject" owed allegiance to the king because he was born on
British soil, of which the king was not only sovereign, but the sole proprietor.
Thus, because a British subject's relationship to the king was as tenant to
landlord, anyone born on British soil, whether of British parents or aliens, owed
political allegiance to the king, and hence were British subjects. The question of
one's allegiance under the doctrine of jus soli is not affected by such factors as
language, ethnic origin, and national origin. Under English law, a child born
within the king's domain to an alien and ethnically distinct family is just as
much a British subject as a child born of an ancient and noble Anglo-Saxon line.
By the common law of England, every person born within the dominions of the
Crown, no matter whether of English or of foreign parents, and, in the latter
case, whether the parents were settled, or merely temporarily sojourning, in the
country, was an English subject.

Claim # 775. The doctrine of jus soli was initially premised on medieval notions
of feudal obligation that have little application outside the context of an absolute
monarchy.

A subject owed a "natural" and permanent debt of allegiance to his lord in


return for the protection received at birth. In exchange, the sovereign also owed
a permanent duty of protection to the subject, so long as the sovereign
remained able to provide it. The resulting political community consisted of an
aggregation of feudal relationships between sovereign and subject.

Claim # 776. The framers of the Constitution were familiar with the distinctions
between the Roman law and the feudal law, between obligations based on
territoriality and those based on the personal and invisible character of origin,
and there is nothing to show that, in the matter of nationality, they intended to
adhere to principles derived from regal government, which they had just
assisted in overthrowing. Manifestly, when the sovereignty of the Crown was
thrown off and an independent government established, every rule of the
common law and every statute of England obtaining in the Colonies in
derogation of the principles on which the new government was founded was
abrogated.

Claim # 777. The rule making locality of birth the criterion of citizenship
because creating a permanent tie of allegiance, no more survived the American
Revolution than the same rule survived the French Revolution. Indeed, the
consensual basis of citizenship, so far from creating a permanent and
indissoluble allegiance to the sovereign, maintains the general right of
expatriation, to be exercised in subordination to the public interests and subject
to regulation.

Claim # 778. A man cannot owe allegiance to two sovereigns. He cannot be


citizen of two republics. If a man has a right to expatriate, and another nation
has a right and disposition to adopt him, it is a compact between the two
parties, consummated by the oath of allegiance. TALBOT V. JANSEN, 3 U. S.
133 (1795)

Claim # 779. The idea of a double allegiance and citizenship united in the same
person, and having reference to two separate, independent, and sovereign
nations or governments, is simply an impossibility. House Documents,
Otherwise Publ. as Executive Documents: 13th Congress, 2d Session-49th
Congress, 1st Session By United States Congress, 1868; Papers Relating to
Foreign Affairs By United States Dept. of State. Published by G.P.O., 1868

Claim # 780. The United States have not recognized a double allegiance.
Congressional Report No. 784, dated June 22, 1874

Claim # 781. The term "natural-born citizen" must mean one who is a citizen by
no act of law. By the law of nature alone, children follow the condition of their
fathers, and succeed to all their rights. A person who had been born under a
double allegiance cannot be said to be a natural-born citizen of the United
States because such status is not recognized (only in fiction of law).

Claim # 782. Natural allegiance is that which arises by nature and birth and
acquired allegiance is that arising by denization or naturalization. The spirit in
the citizen that, originating in love of country, results in obedience to its laws,
the support and defense of its existence, rights, and institutions, and the
promotion of its welfare, is called patriotism. The more unselfish and self-
sacrificing is the spirit displayed by the citizen the higher and more exalted his
patriotism. Such a citizen is called a patriot.

Claim # 783. The antithesis of allegiance and patriotism is treason.

The Immigration and Naturalization Act (INA) grants derivative citizenship to


three basic groups: the foreign-born children of two citizens, the foreign-born
children of a citizen and a national, and the foreign-born children of one citizen
and one alien. The least restrictive requirements fall on the foreign-born
children of two citizens: one of their parents must have been a United States
resident prior to the birth of the child, and no length of parental residency is
specified. The next-lightest requirements fall on the children of one citizen and
one non-citizen national: the citizen-parent must have resided in the United
States or its territories for at least one year. These requirements will rarely
prevent a child from receiving derivative citizenship. The heaviest requirements
fall on the foreign-born children of one citizen and one alien. The INA defines
an "alien" as "any person not a citizen or national of the United States. " Id. §
1101(a)(3).

U.S. law recognizes three categories of individuals: (i) U.S. citizens, (ii) U.S.
nationals who are not citizens, and (iii) aliens. 8 U.S.C. Sec. 1101. U.S. nationals
are defined as "a person who, though not a citizen of the United States, owes
permanent allegiance to the United States." 8 U.S.C. Sec. 1101(22)(B).
Examples include individuals "born in an outlying possession of the United
States on or after the date of formal acquisition of such possession" or "born
outside the United States and its outlying possessions of parents both of whom
are nationals, but not citizens." 8 U.S.C. Sec. 1408. "Outlying possessions of the
United States" are defined as American Samoa and Swains Island. 8 U.S.C. Sec.
1101(29).

Claim # 784. The presidential eligibility clause is designed to insure attachment


to the country on the part of the President. Charles Pinckney in the United
States Senate. March 28, 1800. The Records of the Federal Convention of 1787,
ed. Max Farrand (New Haven: Yale University Press, 1911). Vol. 3

The disqualifications against any citizen being an Elector, are very few indeed;
they are two. The first, that no officer of the United States shall be an Elector;
and the other, that no member of Congress shall. The first, an indispensable
one, because every officer of the United States is nominated by the President,
and (except Judges) removable at his pleasure. The latter, that no member of
Congress shall, is a provision which goes unanswerably to prove the solidity of
my objections to this bill, and to show how extremely guarded the Constitution
is in preventing the members of Congress from having any agency in the
election, except merely in counting the votes. They well knew, that to give to the
members of Congress a right to give votes in this election, or to decide upon
them when given, was to destroy the independence of the Executive, and make
him the creature of the Legislature. This therefore they have guarded against,
and to insure experience and attachment to the country, they have determined
that no man who is not a natural born citizen, or citizen at the adoption of the
Constitution, of fourteen years residence, and thirty-five years of age, shall be
eligible. Charles Pinckney, March 28, 1800

Claim # 785. That provision in the constitution which requires that the president
shall be a natural-born citizen (unless he were a citizen of the United States
when the constitution was adopted,) is a happy means of security against
foreign influence, which, where-ever it is capable of being exerted, is to be
dreaded more than the plague. The admission of foreigners into our councils,
consequently, cannot be too much guarded against; their total exclusion from a
station to which foreign nations have been accustomed to, attach ideas of
sovereign power, sacredness of character, and hereditary right, is a measure of
the most consummate policy and wisdom. It was by means of foreign
connections that the stadtholder of Holland, whose powers at first were
probably not equal to those of a president of the United States, became a
sovereign hereditary prince before the late revolution in that country. Nor is it
with levity that I remark, that the very title of our first magistrate, in some
measure exempts us from the danger of those calamities by which European
nations are almost perpetually visited. The title of king, prince, emperor, or
czar, without the smallest addition to his powers, would have rendered him a
member of the fraternity of crowned heads: their common cause has more than
once threatened the desolation of Europe. To have added a member to this
sacred family in America, would have invited and perpetuated among us all the
evils of Pandora's Box. Tucker, St. George. Blackstone's Commentaries: With
Notes of Reference to the Constitution and Laws of the Federal Government of
the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia,
1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969

Claim # 786. As the President is required to be a natural citizen of the United


States, ambitious foreigners cannot intrigue for the office, and the qualification
of birth cuts off all those inducements from abroad to corruption, negotiation,
and war, which have frequently and fatally harassed the elective monarchies of
Germany and Poland, as well as the pontificate at Rome. James Kent,
Commentaries on American Law, New-York: Published by O. Halsted, Law
Buildings, Nassau-street. 1826

Claim # 787. The proper way in which to interpret the eligibility clause under
the circumstances would be to look at its original purpose, and to adopt that
interpretation which best harmonizes with the nature and objects, the scope and
design, of the instrument. Justice Joseph Story on Rules of Constitutional
Interpretation (1833). Chapter 5: Rules of Interpretation. § 405. II.

Claim # 788. The great fundamental policy of all governments is to exclude


foreign influence from their executive councils. This cuts off all chances for
ambitious foreigners, who might otherwise be intriguing for the office; and
interposes a barrier against those corrupt interferences of foreign governments
in executive elections, which have inflicted the most serious evils upon the
elective monarchies of Europe. Joseph Story, Commentaries on the Constitution
3:§ 1473

Claim # 789. This fundamental policy is derived from the law of Moses which
prohibited anyone, but a natural born citizen of Israel, from being king.
Deuteronomy 17:14-15

Claim # 790. The basis of a natural-born requirement traces back to the Torah,
where Moses prophesied about the people of Israel getting a king. The whole
notion of a natural-born citizen is designed for the purpose of making sure that
the chief executive would not have politically divided loyalties.

Claim # 791. Since Biblical times, it has been common practice to preclude
foreigners from serving as political leaders. The Old Testament dictates, Thou
shalt in any wise set him king over thee, whom YHVH thy God shall choose one
from among thy brethren shalt thou set king over thee: thou mayest not set a
stranger over thee, which is not thy brother. Deuteronomy 17:15
The biblical text consistently affirms that God reserves for himself the right of
choosing kings and prophets and of raising up judges (Dt 17:14-20; 18:18; Jdg
3:15). Deuteronomy 17:15 gives "firm yet emphatic permission" to Israel to have
a king (Miller 1990:147). YHVH's act of choosing a king serves as legitimising
him (Nelson 2002:222). The text stipulates that the king must be an Israelite and
not a foreigner.

17:15 Thy God shall chuse - Approve of, or appoint. So it was in Saul and David.
God reserved to himself the nomination both of the family, and of the person.
Thy brethren - Of the same nation and religion; because such a person was
most likely to maintain true religion, and to rule with righteousness, gentleness,
and kindness to his subjects; and that he might be a fit type of Christ their
supreme king, who was to be one of their brethren. Wesley's Notes

'Their leader shall be one of them, And their ruler shall come forth from their
midst; And I will bring him near and he shall approach Me; For who would dare
to risk his life to approach Me?' declares YHVH. Jeremiah 30:21

Claim # 792. No man can serve two masters. He cannot give his heart to two
services at the same time. He cannot follow two callings successfully. For either
he will hate the one and love the other, or he will hold to the one, and despise
the other. Matthew 6:24

Claim # 793. The Christian religion, in its purity, is the basis, or rather the
source of all genuine freedom in government, and that no civil government of a
republican form can exist and be durable in which the principles of that religion
have not a controlling influence.

Claim # 794. The further back one goes in American history, the more saturated
with Hebraic references and allusions one finds American culture to be.
Ironically, it is this Hebraic milieu rather than one grounded in the Christian
New Testament, which most fueled the fires of motivation and imagination
among American Christian colonists and founders of the Republic. Thus, Cecil
Roth could write that were we to 'deprive modern Europe and America of [their]
Hebraic heritage . . . the result would be barely recognizable

Claim # 795. At the time of the adoption of the Constitution, and of the First
Amendment to it, the general if not the universal sentiment in America was, that
Christianity ought to receive encouragement from the state so far as was not
incompatible with the private religious rights of conscience and the freedom of
religious worship. An attempt to level all religions, and to make it a matter of
state policy to hold all in utter indifference, would have created universal
disapprobation, if not universal indignation. The real object of the amendment
was not to countenance, much less to advance, Mahometanism, or Judaism, or
infidelity, by prostrating Christianity; but exclude all rivalry among Christian
sects, and to prevent any national ecclesiastical establishment which should
give to a hierarchy the exclusive patronage of the national government. It thus
cuts off the means of religious persecution (the vice and pest of former ages),
and of the subversion of the rights of conscience in matters of religion, which
had been trampled upon almost from the days of the Apostles to the present
age. Justice Joseph Story. Commentaries on the Constitution of the United
States, 5th ed. (Boston: Hilliard, Gray & Co., 1833), 701. Commentaries on the
Constitution of the United States, 2 Vol. 2:593-95, 2nd Ed. Boston: Little Brown
(1905)

Justice Story's understanding reflects the thinking of the framers of the


Constitution, who expressed unbridled faith in God in the Declaration of
Independence: "When in the Course of human events, it becomes necessary for
one people to dissolve the political bands which have connected them with
another, and to assume among the powers of the earth, the separate and equal
station to which the Laws of Nature and of Nature's God entitles them . . . "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 . . . "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." Such an understanding of the foundation of the American law
was still reflected in the decisions of the United States Supreme Court just over
one hundred years ago. Justice Josiah Brewer wrote on February 29, 1892, "Our
laws and our institutions must necessarily be based upon and embody the
teachings of the Redeemer of mankind. It is impossible that it should be
otherwise; and in this sense and to this extent our civilization and our
institutions are emphatically Christian." Church of the Holy Trinity v. United
States, 143 U.S. 457-458, 465-471, 36 L ed 226. (1892). A distinctively Christian
view of the law is also reflected in Davis v. Beason, 133 U.S. 333 (1890):
"Bigamy and polygamy are crimes by the laws of all civilized and Christian
countries. They are crimes by the laws of the United States, and they are crimes
by the laws of Idaho . . . It was never intended or supposed that the (First)
amendment could be invoked as a protection against legislation for the
punishment of acts inimical to the peace, good order, and morals of society.
With man's relations to his Maker and the obligations he may think they impose,
and the manner in which an expression shall be made by him of his belief on
those subjects, no interference can be permitted, provided always the laws of
society, designed to secure its peace and prosperity, and the morals of its
people, are not interfered with. However free the exercise of religion may [133
U.S. 333, 343] be, it must be subordinate to the criminal laws of the country,
passed with reference to actions regarded by general consent as properly the
subjects of punitive legislation. There have been sects which denied as a part of
their religious tenets that there should be any marriage tie, and advocated
promiscuous intercourse of the sexes, as prompted by the passions of its
members. And history discloses the fact that the necessity of human sacrifices,
on special occasions, has been a tenet of many sects. Should a sect of either of
these kinds ever find its way into this country, swift punishment would follow
the carrying into effect of its doctrines, and no heed would be given to the
pretense that, as religious beliefs, their supporters could be protected in their
exercise by the constitution of the United States. Probably never before in the
history of this country has it been seriously contended that the whole punitive
power of the government for acts, recognized by the general consent of the
Christian world in modern times as proper matters for prohibitory legislation,
must be suspended in order that the tenets of a religious sect encouraging
crime may be carried out without hindrance."

Claim # 796. Without morals a republic cannot subsist any length of time; they
therefore who are decrying the Christian religion, whose morality is so sublime
and pure are undermining the solid foundation of morals, the best security for
the duration of free governments. Bernard C. Steiner, The Life and
Correspondence of James McHenry (Cleveland: The Burrows Brothers, 1907), p.
475. In a letter from Charles Carroll to James McHenry of November 4, 1800

Claim # 797. The influence of the Bible upon the life and character of Anglo-
Saxon people has been tremendous, perhaps as great an influence as anything
purely Greek or Roman.

Toynbee regards the biblical notion of a people, set apart from the rest of
mankind, as the source of self-aggrandizement of Christian nations in the
modern world. Ultimately, this narcissistic belief of the ancient Israelites took
root in the minds of anti-Christian Germans, emerging as the Nazi madness of
our own generation. Agus, Jacob B. Jewish Identity in an Age of Ideologies.
Frederick Ungar Publishing Co., NY, 1978, p. 385. There is some truth in
'enlightened' assertions from Voltaire to Renan to Taine that the Israelite's
concept of chosenness, their identification of religion and nationality, their
claim to an absolute position in history and a singled-out relationship with God,
brought into Western civilization an otherwise unknown element of fanaticism
(inherited by Christianity with its claim to exclusive possession of Truth) on one
side, and on the other an element of pride that was dangerously close to its
racial perversion. Hannah Arendt, p. 242

In South Africa the Afrikaner's self-identification with the ancient Hebrews --


with their own Great Trek regarded by them as a second Exodus, combines with
their own explication of the biblical story of Ham as meaning that black Africans
were divinely ordained to be their servants -- formed the theologically
legitimizing core of the reprehensible doctrine of apartheid. Thus, the
covenantal belief of the Ulster-Scots in their self-defined status as one of God's
predestined 'elect' peoples has served to justify their occupation of the
promised land of Northern Ireland along with their historical persecutions of
that land's native Irish people. And thus, on one occasion (among many) that
the Puritan settlers of New England laid waste an entire neighboring nation with
barely a pretext of provocation --shooting and stabbing to death every man,
woman, and child that they could find -- they wrote in justification that
'sometimes the Scripture declareth women and children must perish with their
parents,' and notes that as Chosen People (alluding to Deuteronomy 20:16) the
Lord had given them the Indian's "land for an inheritance." Stanndard, David.
Uniqueness or Denial: The Politics of Genocide Scholarship. in Rosenbaum, p.
163-209. Oliver Cromwell's Joshua-like campaign against the Catholics of
Ireland in the seventeenth century, which led to bloody massacres of civilians,
was inspired by the Bible. Carroll, Robert P. War, 1989, p. 147-170 [in Smith,
Morton/Hoffman, R. Joseph. What the Bible Really Says]

Claim # 798. The Bible, perhaps even more than the Constitution, is our
founding document: the source of the belief in the United States as a special,
sacred nation, a people called by God to establish a model society, a beacon to
the world. Only one other nation has ever looked to the Bible to find a warrant
for its very existence: Israel, whose early history is actually written in it. The
foundation of this belief was laid by the New England Puritans who literally
'discovered' America in the Bible. They believed that, like Israel of old, they had
been singled out by God to be an example for the nations.

Puritanism originated in East Anglia in England, spread to New England, and


became the most important cultural influence in the United States beginning in
the 18th century down to the mid-20th century. East Anglian Puritans became
the breeding stock for Americas Yankee population and multiplied at a rapid
rate, doubling every generation for two centuries.

The egalitarian, anti-hierarchical spirit of Yankee republicanism back to the fact


that East Anglia was settled by Angles and Jutes in pre-historic times. They
produced a civic culture of high literacy, town meetings, and a tradition of
freedom, distinguished from other British groups by their comparatively large
ratios of freemen and small numbers of servi and villani. East Anglia continued
to produce insurrections against arbitrary power—the risings and rebellions of
1381 led by Jack Straw, Wat Tyler, and John Ball, Clarence's in 1477, Robert
Kelt's rebellion of 1548, which predated the rise of Puritanism. President John
Adams, cherished the East Anglian heritage of "self-determination, free male
suffrage, and a consensual social contract". This emphasis on relative
egalitarianism and consensual, democratic government are tendencies
characteristic of Northern European peoples.

Claim # 799. The U.S. Constitution is only the latest written expression of
Western values that have been developed and modified over thousands of years.

If any single solution emerges in the words of tribal leaders, it is the importance
of retaining one's values, both individually and collectively. Tribal leaders'
emphasis on values should not be surprising. A constitution must reflect a
society's fundamental values if it is truly to serve as its highest law. In his
landmark book, The Origins of American Constitutionalism, political scientist
Donald Lutz reminds us that the genesis of a society's political values predates
its written political documents. Indeed, a society's deepest values are born in its
people's most ancient, primal, and unspoken worldview: 'Essentially a people
share symbols and myths that provide meaning to their existence together and
link them to some transcendent order. They can thus act together and answer
the basic political questions: through what procedures do we reach collective
decisions? By what standards do we judge our actions? What qualities or
characteristics do we strive to maintain among ourselves? What kind of people
do we wish to become? What qualities or characteristics do we seek or require
in those who lead us? Far from being the repository of irrationality, these
shared symbols and myths are the basis upon which collective, rational action is
possible. Since these myths and symbols are frequently expressed in political
documents, they tend to structure the form, determine the content, and define
the meaning of the words in these documents. . . . By studying the political
documents of a people, we can watch the gradual unfolding, elaboration and
alteration of the myths and symbols that define them.' Through detailed
empirical research, Lutz traces the roots of the core American constitutional
tradition back in time to earlier state constitutions, colonial charters, English
church covenants, and, ultimately, the Old Testament. Viewed in this fashion,
the U.S. Constitution is only the latest written expression of Western values that
have been developed and modified over thousands of years.

Claim # 800. Our Constitution is a covenant running from the first generation of
Americans to us and then to future generations. It is a coherent succession.
Each generation must learn anew that the Constitution's written terms embody
ideas and aspirations that must survive more ages than one. PLANNED
PARENTHOOD OF SOUTHEASTERN PA. v. CASEY, 505 U.S. 833 (1992)

Covenant is a religious concept, originating in the ancient Near Eastern


religions. See, e.g., Paul Kalluveettil, Declaration and Covenant: A
Comprehensive Review of Covenant Formulae from the Old Testament and the
Ancient Near East 3 (1982). Covenant is also a critical component of
Christianity. Indeed, the very salvation offered through Jesus Christ is called the
New Covenant. See, e.g., Luke 22:20. From Christianity, the idea of covenant
was adopted by the American Founding Fathers: 'Viewing the United States
Constitution as the critical expression of the American constitutional tradition,
we move back in time, seeking the less differentiated, more embryonic
expression of what is in that document. Our search takes us to the earliest state
constitution, then to colonial documents of foundation that are essentially
constitutional such as the Pilgrim Code of Law, and then to proto-constitutions
such as the Mayflower Compact. The political covenants written by English
colonists in America lead us to the church covenants written by radical
Protestants in the late 1500s and early 1600s, and these in turn lead us back to
the Covenant tradition of the Old Testament. The American constitutional
tradition derives much of its form and content from the Judeo-Christian tradition
as interpreted by the radical Protestant sects to which belonged so many of the
original European settlers of British North America.' Donald S. Lutz, The
Origins of American Constitutionalism 6-7 (1982). One covenant principle that
we see plainly in scripture is that a covenant may not be added to without
mutual consent. We see God Himself revealing this principle in His covenant
with Israel: "Do not add to what I command you." Deuteronomy 4:2. Any judge
or justice who makes up out of whole cloth a new fundamental right, or
arrogates to himself authority or power not granted by the Constitution,
certainly adds to our national covenant, and thus becomes a covenant breaker.

Claim # 801. Religion has been closely identified with our history and
government. The fact that the Founding Fathers believed devotedly that there
was a God and that the unalienable rights of man were rooted in Him is clearly
evidenced in their writings, from the Mayflower Compact to the Constitution
itself. This background is evidenced today in our public life through the
continuance in our oaths of office from the Presidency to the Alderman of the
final supplication, "So help me God." SCHOOL DIST. OF ABINGTON TP. V.
SCHEMPP, 374 U. S. 203 (1963); VAN ORDEN V. PERRY, 545 U.S. 677 (2005)

Claim # 802. The history of man is inseparable from the history of religion. And,
since the beginning of that history, many people have devoutly believed that
'More things are wrought by prayer than this world dreams of.' ENGEL V.
VITALE, 370 U. S. 421 (1962); SCHOOL DIST. OF ABINGTON TP. V. SCHEMPP,
374 U. S. 203 (1963)

Claim # 803. We are a religious people whose institutions presuppose a


Supreme Being. When the state encourages religious instruction or cooperates
with religious authorities by adjusting the schedule of public events to sectarian
needs, it follows the best of our traditions. For it then respects the religious
nature of our people and accommodates the public service to their spiritual
needs. ZORACH V. CLAUSON, 343 U. S. 306 (1952); SCHOOL DIST. OF
ABINGTON TP. V. SCHEMPP, 374 U. S. 203 (1963); LYNCH V. DONNELLY, 465
U. S. 668 (1984); VAN ORDEN V. PERRY, 545 U.S. 677 (2005)

The Court specified that the Establishment Clause does not prohibit prayers in
our legislative halls; the appeals to the Almighty in the messages of the Chief
Executive; the proclamations making Thanksgiving Day a national holiday; ‘so
help me God’ in our courtroom oaths-these and all other references to the
Almighty that run through our laws, and our public rituals including the
supplication with which the Court opens each session: ‘God save the United
States and this Honorable Court.’ Id. at 312-13. These practices are legitimate
because they are deeply imbedded in the history and tradition of this country.
Marsh, 463 U.S. at 786

Claim # 804. Today, as in the beginning, our national life reflects a religious
people who, in the words of Madison, are earnestly praying, as in duty bound,
that the Supreme Lawgiver of the Universe guide them into every measure
which may be worthy of his blessing. EVERSON V. BOARD OF EDUCATION,
330 U. S. 1 (1947); SCHOOL DIST. OF ABINGTON TP. V. SCHEMPP, 374 U. S.
203 (1963); VAN ORDEN V. PERRY, 545 U.S. 677 (2005)

Claim # 805. Our history is replete with official references to the value and
invocation of Divine guidance in deliberations and pronouncements of the
Founding Fathers and contemporary leaders. LYNCH V. DONNELLY, 465 U. S.
668 (1984)

Since the time of this nation’s founding, public prayer has been an essential part
of our heritage. The tradition of designating an official day of prayer actually
began with the Continental Congress in 1775. June 12, 1775, Resolution Calling
for a Day of Public Fasting and Prayer. The Journals of the Continental Congress
1774-1789 (Washington, D.C.: Government Printing Office, 1905), Vol. II, p. 87.
On October 3, 1789, President George Washington issued a National Day of
Thanksgiving Proclamation, “to be devoted by the people of these United States
to the service of that great and glorious Being who is the beneficent author of
all the good that was, that is, or that will be,” so that “we may then unite in most
humbly offering our prayers and supplications to the great Lord and Ruler of
Nations, and beseech Him . . . to promote the knowledge and practice of true
religion and virtue . . .” James D. Richardson, A Compilation of Messages and
Papers of the Presidents, 1789-1897 (Published by Authority of Congress 1899),
Vol. 1, p. 64. Since that time, American Presidents have continued this
important tradition. “Presidents Adams and Madison also issued thanksgiving
proclamations, as have almost all our presidents.” Lynch v. Donnelly, 465 U.S.
668, 675, n.2 (1984). In 1952, President Harry Truman signed into law a joint
resolution by Congress to “set aside an appropriate day as a National Day of
Prayer.” Public Law 82-324; 66 Stat. 64— April 17, 1952. In 1988, the law was
amended by Congress and signed by President Ronald Reagan to specify that
the annual event should be observed on “the first Thursday in May in each
year.” January 25, 1988, in the Second Session of the One Hundredth Congress.
Public Law 100-307—May 5, 1988. The relevant statute, 36 U.S.C.A. § 119,
currently provides as follows: The President shall issue each year a
proclamation designating the first Thursday in May as a National Day of Prayer
on which the people of the United States may turn to God in prayer and
meditation at churches, in groups, and as individuals. Indeed, the United States
Supreme Court has repeatedly acknowledged that presidential proclamations of
thanksgiving and prayer, including the National Day of Prayer, are a part of our
culture and tradition and are in no way a violation of the Constitution.

Claim # 806. The Establishment Clause was designed, above all, to protect
religious liberty, not to expunge religion from the Nation's official life. The
Founders encouraged civic recognition of the Nation's religious heritage. The
Framers' approval of acknowledgments of the country's religious heritage was
the product of deliberate reflection on the relation between religion and civic
life. The distinctly latter-day claim of sanitized separation between Church and
State was alien to the Founding generation's vision of the Establishment Clause.
Nothing in the text of the Establishment Clause or in the concerns leading to its
adoption suggests that a ceremonial acknowledgment of religion is a "law
respecting an establishment of religion." On the contrary, history shows that
religious acknowledgments were part of the ceremonies of all three branches of
government when the Republic was founded. Indeed, "there is an unbroken
history of official acknowledgment by all three branches of government of the
role of religion in American life from at least 1789." Lynch v. Donnelly, 465 U.S.
668, 674 (1984). The Founders encouraged civic recognition of the Nation's
religious heritage; they did not believe that the practice threatened religious
liberty by establishing an official religion or coercing participation in religious
activities. It therefore did not implicate the prohibition embodied in the
Establishment Clause. In the early Republic, all three branches of government
included religious acknowledgments on ceremonial occasions. "History is
replete with official references to the value and invocation of Divine guidance in
deliberations and pronouncements of the Founding Fathers and contemporary
leaders." Lynch v. Donnelly, 465 U.S. at 675. That history is particularly telling
since the government of the new Republic was dominated by the Founders. See
Marsh, 463 U.S. at 790 (citing Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297
(1888)). The early Presidents all included invocations of God in their inaugural
addresses. Those invocations have previously been reproduced in decisions of
the Court and therefore need not be reiterated in their entirety here. County of
Allegheny v. American Civil Liberties Union, 492 U.S. 573, 655 (1989)
(Kennedy, J., concurring in the judgment and dissenting in part); Engel v. Vitale,
370 U.S. 421, 446 n.3 (1962) (Stewart, J., dissenting). It is useful to note,
however, that Thomas Jefferson—often cited as an advocate of strict separation
between church and state (and author of the decidedly extratextual "wall of
separation" metaphor)—explicitly invoked divine blessing in his second
inaugural address. In addition, Presidents Washington, Adams, and Madison all
issued proclamations recommending prayers of thanksgiving. Lynch, 465 U.S.
at 675 & n.2.; see also 1 Messages and Papers of the Presidents, 1789-1897, at
64, 268-270, 284-286, 513, 532-533, 559 & 560-561 (J. Richardson ed. 1897); 3
A. Stokes, Church and State in the United States 180-193 (1950). The early
Congresses likewise encouraged acknowledgments of religious heritage both
within and without their halls. Prior to adoption of the Constitution, the
Continental Congress opened its sessions with a prayer offered by a paid
chaplain. See Marsh, 463 U.S. at 787. After the Framing, and "in the very week
that Congress approved the Establishment Clause as part of the Bill of Rights for
submission to the states, it enacted legislation providing for paid Chaplains for
the House and Senate." Lynch, 465 U.S. at 674. The First Congress also
requested that the President recommend to the people a day of prayer. 1 Annals
of Cong. 949-950 (J. Gales ed. 1789). Nor was the federal judiciary out of step
with its coordinate branches in this respect. To the contrary, the Article III
branch early on adopted a tradition of ceremonial acknowledgment of religion.
Contemporary reports show that the phrase "God Save this Honorable Court"
became part of the traditional opening of the Court's sessions at least as early as
the Court of Chief Justice Marshall. C. Warren, The Supreme Court in United
States History 469 (1922). Still earlier, the first Chief Justice, John Jay, invited
members of the clergy to open sessions of the circuit court held in New England
with a prayer. Letter of John Jay to Richard Law (Mar. 10, 1790), reprinted in 2
The Documentary History of the Supreme Court of the United States: The
Justices on Circuit, 1789-1800, at 13-14 (M. Marcus ed. 1988). Thereafter,
clergymen delivered prayers during circuit court on a regular basis, including
on one occasion when the Vice President was in attendance, see 2 The
Documentary History of the Supreme Court of the United States: The Justices
on Circuit, 1790-1794, at 276-277 (M. Marcus ed. 1988) (quoting article in
Columbian Centinel (Boston), May 16, 1792), and on several occasions in
Providence, Rhode Island, see id. at 496 (reprinting article of Nov. 8, 1794, in
the Providence Gazette). These ceremonial acknowledgments were so pervasive
among the three branches that it is fair to say they constituted a regular practice
of our early government. It would be modern-day arrogance in the extreme to
dismiss that practice as the result of unthinking prejudice or political
expedience on the part of the Founding generation. To the contrary, the
Framers' approval of acknowledgments of the country's religious heritage was
the product of deliberate reflection on the relation between religion and civic
life. The Framers were aware that the country had been founded by "settlers
(who) came here from Europe to escape the bondage of laws which compelled
them to support and attend government-favored churches," Everson v. Board of
Education, 330 U.S. 1, 8 (1947), and were acutely concerned to avoid such
persecution in the new republic. See also Edwards v. Aguillard, 482 U.S. 578,
605 (1987) (Powell, J., concurring) ("The early settlers came to this country
from Europe to escape religious persecution that took the form of forced
support of state-established churches."). The Framers simply did not regard
acknowledgment of religion on ceremonial occasions as presenting the sort of
dangers they determined to avoid by adopting the Establishment Clause. What
is abundantly clear is that the distinctly latter-day claim of "sanitized separation
between Church and State," Committee for Public Education & Religious Liberty
v. Nyquist, 413 U.S. 756, 760 (1973), was alien to the Founding generation's
vision of the Establishment Clause. That Clause was designed, above all, to
protect religious liberty, not to expunge religion from the Nation's official life.

Claim # 807. The Framers made explicit in the Constitution their belief that
acknowledgment of religious devotion was entirely consistent with the civic
order provided for in that document. The Oath Clauses approve of the Nation's
leaders publicly undertaking a religious duty when they undertake the most
solemn constitutional duty – pledging fidelity to the laws and Constitution of the
Republic.

The term "oath," as used in these clauses, referred to the invocation of God as a
witness to the expression of an obligation: in short, a sacred vow. In discussing
the Article VI Oath Clause at North Carolina's ratifying convention, James
Iredell, later a Justice on this Court, defined an oath as a "solemn appeal to the
Supreme Being for the truth of what is said by a person who believes in the
existence of a Supreme Being and in a future state of rewards and punishments,
according to that form which will bind his conscience most." The Debates in the
Several State Conventions on the Adoption of the Federal Constitution 196 (J.
Elliot 2d ed. 1836). George Washington's actions at the first inauguration
confirm that compliance with the Oath Clauses occasioned acts of religious
significance at civic ceremonies. When Chancellor Robert Livingston requested
Washington to take the prescribed oath of office, Washington responded as
follows: "I solemnly swear" Washington answered and repeated the oath.
Reverently he added, "So help me God." He bent forward as he spoke and
before Otis could lift the Bible to his lips, he kissed the book. 6 D.S. Freeman,
George Washington 192 (1954). As its text makes plain, the purpose of the
Establishment Clause is to prohibit the establishment of an official religion.
History shows that the Clause was adopted to guard against establishments of
religion of the sort that prevailed in Great Britain and throughout Europe and
that caused many to flee to this country. Religions were established in the Old
World through laws that compelled both payment of taxes to support the
favored religion and obedience to that religion's tenets. Because force and
funds were the twin evils that animated the drafters of the Establishment
Clause, it should come as no surprise that these same drafters deemed
ceremonial acknowledgments of religion, which posed no such dangers to
religious liberty, to be fully compatible with the Constitution.

Claim # 808. Religion, or the duty which we owe to our Creator, and the manner
of discharging it, can be directed only by reason and conviction, not by force or
violence; and, therefore, all men are equally entitled to the free exercise of
religion, according to the dictates of conscience; and that it is the mutual duty
of all to practise Christian forbearance, love, and charity, towards each other.
The Virginia Declaration of Rights, June 12, 1776

Claim # 809. 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 man and citizens. The
mere politician, equally with the pious man, ought to respect and to cherish
them. A volume could not trace all their connexions 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. George Washington, A Collection, ed.
W.B. Allen (Indianapolis: Liberty Classics, 1989), 521-22

Claim # 810. the federal government can never be in danger of degenerating


into a monarchy, and oligarchy, an aristocracy, or any other despotic or
oppressive form so long as there shall remain any virtue in the body of the
people. George Washington, The Writings of George Washington, John C.
Fitzpatrick, editor (Washington: U. S. Government Printing Office, 1939), Vol.
XXIX, p. 410. In a letter to Marquis De Lafayette, February 7, 1788

Claim # 811. A popular government cannot flourish without virtue in the people.
Richard Henry Lee, The Letters of Richard Henry Lee, James Curtis Ballagh,
editor (New York: The MacMillan Company, 1914), Vol. II, p. 411. In a letter to
Colonel Mortin Pickett on March 5, 1786

Claim # 812. Only a virtuous people are capable of freedom. As nations become
corrupt and vicious, they have more need of masters. Benjamin Franklin, The
Writings of Benjamin Franklin, Jared Sparks, editor (Boston: Tappan,
Whittemore and Mason, 1840), Vol. X, p. 297, April 17, 1787

Claim # 813. A general dissolution of the principles and manners will more
surely overthrow the liberties of America than the whole force of the common
enemy. While the people are virtuous they cannot be subdued; but once they
lose their virtue, they will be ready to surrender their liberties to the first
external or internal invader. If virtue and knowledge are diffused among the
people, they will never be enslaved. This will be their great security. Samuel
Adams (1722-1803), the "Father of the American Revolution". The Writings of
Samuel Adams, ed., Harry Alonzo Cushing (G. P. Putman's Sons, 1908), Vol. 4,
p. 124

Samuel Adam's point is that liberty depends on virtue, and virtue in turn
depends on religious practice. Good citizenship requires a commitment to virtue
and morality. The Founding Fathers did not dream up the idea of liberty, they
merely reaffirmed it as a natural right given to all men by God. But with this
awesome right, this awesome power, comes responsibility—a word we hear
little of today. Lord Acton wrote that liberty is not "the power to do what we like,
but the right of being able to do what we ought." This is a critical point. Our
Framers understood that liberty must be directed, restrained, and given a noble
purpose to last. The guardsman of liberty was always morality, informed by
religious practice. In the late eighteenth century, so serious person was
debating whether faith and virtue were instrumental to the future of the
Republic.
Claim # 814. When irreligion increases, women are taken advantage of. From
the corruption of women arises inappropriate mixing producing unwanted
children. Such inappropriate mixing sends the dynasty and its destroyers to
hell. Even the ancestors fall, being deprived of oblations of rice and water.

Claim # 815. Inappropriate mixing destroys social norms and long-standing


family traditions.

Claim # 816. If we and our posterity reject religious instruction and authority,
violate the rules of eternal justice, trifle with the injunctions of morality, and
recklessly destroy the political constitution which holds us together, no man can
tell how sudden a catastrophe may overwhelm us that shall bury all our glory in
profound obscurity. Daniel Webster, The Writings and Speeches of Daniel
Webster (Boston: Little, Brown, & Company, 1903), Vol. XIII, p. 492. From "The
Dignity and Importance of History," February 23, 1852

Claim # 817. Far from being rivals or enemies, religion and law are twin sisters,
friends, and mutual assistants. Indeed, these two sciences run into each other.
The divine law, as discovered by reason and the moral sense, forms an essential
part of both. James Wilson, The Works of the Honourable James Wilson
(Philadelphia: Bronson and Chauncey, 1804), Vol. I, p. 106.)

Claim # 818. Men, in a word, must necessarily be controlled either by a power


within them or by a power without them; either by the Word of God or by the
strong arm of man; either by the Bible or by the bayonet. Robert Winthrop,
Addresses and Speeches on Various Occasions (Boston: Little, Brown & Co.,
1852), p. 172 from his "Either by the Bible or the Bayonet."

Claim # 819. By renouncing the Bible, philosophers swing from their moorings
upon all moral subjects. It is the only correct map of the human heart that ever
has been published. All systems of religion, morals, and government not
founded upon it must perish, and how consoling the thought, it will not only
survive the wreck of these systems but the world itself. "The Gates of Hell shall
not prevail against it." [Matthew 1:18] Benjamin Rush, Letters of Benjamin
Rush, L. H. Butterfield, editor (Princeton, NJ: Princeton University Press, 1951),
p. 936, to John Adams, January 23, 1807

Claim # 820. This Divine Book, above all others, favors that equality among
mankind, that respect for just laws, and those sober and frugal virtues, which
constitute the soul of republicanism. Benjamin Rush, Essays, Literary, Moral
and Philosophical (Philadelphia: Printed by Thomas and William Bradford,
1806), pp. 93-94

Claim # 821. The only foundation for a useful education in a republic is to be


laid in religion. Without this there can be no virtue, and without virtue there can
be no liberty, and liberty is the object and life of all republican governments.
Benjamin Rush, Essays, Literary, Moral and Philosophical (Philadelphia:
Thomas and William Bradford, 1806), p. 8

Claim # 822. The moral principles and precepts found in the scriptures ought to
form the basis of all our civil constitutions and laws. These principles and
precepts have truth, immutable truth, for their foundation. All the evils which
men suffer from vice, crime, ambition, injustice, oppression, slavery and war,
proceed from their despising or neglecting the precepts contained in the Bible.
For instruction then in social, religious and civil duties resort to the scriptures
for the best precepts. Noah Webster, History of the United States, "Advice to the
Young" (New Haven: Durrie & Peck, 1832), pp. 338-340, par. 51, 53, 56

Claim # 823. There are three points of doctrine the belief of which forms the
foundation of all morality. The first is the existence of God; the second is the
immortality of the human soul; and the third is a future state of rewards and
punishments. Suppose it possible for a man to disbelieve either of these three
articles of faith and that man will have no conscience, he will have no other law
than that of the tiger or the shark. The laws of man may bind him in chains or
may put him to death, but they never can make him wise, virtuous, or happy.
John Quincy Adams, Letters of John Quincy Adams to His Son on the Bible and
Its Teachings (Auburn: James M. Alden, 1850), pp. 22-23

Claim # 824. God is a Spirit: and they that worship him, must worship him in
spirit and in truth. John 4:24

Claim # 825. God is above all, through all, and in all. Ephesians 4:6

Claim # 826. There is a law in nature, and secondly, that there is a war in
nature.

Claim # 827. The entire past history of humanity originally moved only in the
circle of race and class struggle. The race struggle is the primal one, and the
class struggle secondary.

The struggle which means destruction for the fundamentally weak race steels
the strong; the same struggle, moreover, by eliminating the weaker elements,
tends still further to strengthen the strong.

Claim # 828. The history of civilization is the history of the slow and painful
enfranchisement of the human race.

Claim # 829. Recorded history, more than anything else, is the story of the
mankind's struggle for freedom. There is, within the soul of man, implanted
there by Almighty God, a desire to live in peace, and free from the tyrant’s
chains. It is the institution of government that has always posed the greatest
danger to Life, Liberty, and the pursuit of Happiness. There have been,
throughout history, many great men, our Founding Fathers among them, who
have warned about the dangers posed by the great powers of government, and
the certainty of their abuse, unless held in check by a written Constitution, a
constant vigilance, and the security of the force of arms borne by the people.
Among these historical and ongoing abuses by government are unjust wars
waged for the sake of power, money, and empire. History shows that evil men
within governments have more often used their offices and powers to suppress
and enslave the domestic populace than foreign enemies. They have created
famine and starvation in lands of plenty, murders, false imprisonments, rape,
plunder, degradation and destruction of lives, the wanton depletion of the
national treasuries of nations, debilitating, unjust and unequal taxation
schemes, favoritism, monopolies, unlawful confiscations of properties,
destruction of churches, disarming of the populace, impairing the right of
conscience, kidnappings, encouraging immoral lifestyles, promoting gambling,
prostitution, homosexuality, the destruction of the traditional family, and
promoting the murder of the innocent by abortion. These are but a few of the
documented abuses by governments down through the ages that compel us to
choose Almighty God as our Sovereign and Lord. Therefore, We the People,
when choosing our own form of government, rejected once and forever, all
earthly kings, setting in place a Government under the Almighty Lord God as
our Sovereign.

Claim # 830. The laws of nature are the laws of God, whose authority can be
superseded by no power on earth. George Mason, 1772 [Robin v. Hardaway,
General Court of Virginia]

Claim # 831. Upon these two foundations, the law of nature and the law of
revelation, depend all human laws; that is to say, no human laws should be
suffered to contradict these. William Blackstone, Commentaries on the Laws of
England, 1765–1769

Claim # 832. Our Ancestors, when they left their native Land, and settled in
America, brought with them (even if the same had not been confirmed by
Charters) the Civil- Constitution and Form of Government of the Country they
came from; and were by the Laws of Nature and Nations, entitled to all its
Privileges, Immunities and Advantages; which have descended to us their
Posterity, and ought of Right to be as fully enjoyed, as if we had still continued
within the Realm of England. George Washington, "Fairfax County Resolves",
July 18, 1774

Claim # 833. The supreme of all laws, in all cases, is that of self-preservation.

Claim # 834. We are all qualified, entitled, and morally obliged to evaluate the
conduct of our rulers. This political judgment, moreover, is not simply or
primarily a right, but like self-preservation, a duty to God. As such it is a
judgment that men cannot part with according to the God of Nature. It is the
first and foremost of our inalienable rights without which we can preserve no
other.

Claim # 835. Among the Natural Rights of Man are a right to life, to liberty, to
property, together with the right to support and defend them in the best manner
they can. These are evident branches of, rather than deductions from, the duty
of self-preservation, commonly called the first law of nature. Samuel Adams and
Benjamin Franklin, 'The Rights of the Colonists', (actual title; 'The Report of the
Committee of Correspondence to the Boston Town Meeting'). Nov. 20, 1772

Claim # 836. Self-preservation is the first principle of our nature. When our lives
and properties are at stake, it would be foolish and unnatural to refrain from
such measures as might preserve them because they would be detrimental to
others. Alexander Hamilton, The Works of Alexander Hamilton - "A FULL
VINDICATION.", Dec. 15, 1774, ed. Henry Cabot Lodge (Federal Edition)

Claim # 837. When the first principles of civil society are violated, and the rights
of a whole people are invaded, the common forms of municipal law are not to be
regarded. Men may then betake themselves to the law of nature; and, if they but
conform their actions, to that standard, all cavils against them, betray either
ignorance or dishonesty. There are some events in society, to which human
laws cannot extend; but when applied to them lose all their force and efficacy.
In short, when human laws contradict or discountenance the means, which are
necessary to preserve the essential rights of any society, they defeat the proper
end of all laws, and so become null and void." Alexander Hamilton, The Farmer
Refuted, 23 Feb. 1775 Papers 1:86--89, 121--22, 135--36

Claim # 838. Every principle divine and human requires us to obey that great
and fundamental law of nature, self preservation, until peace shall be restored
upon constitutional principles. Journals of the Continental Congress, TUESDAY,
OCTOBER 3, 1775

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