In the above-noted resolution of the University of Virginia Board, The Federalist was lauded as "being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the U.S. on questions as to its genuine meaning." This referred to the Federal (framing) Convention of 1787 and to the State Ratifying Conventions of 1787-1788 which ratified, or adopted, the Constitution and thereby made it the fundamental law of the people. As Madison wrote Jefferson on February 8, 1825:
"The 'Federalist' may fairly enough be regarded as the most authentic exposition of the text of the federal Constitution, as understood by the Body which prepared & the Authority which accepted it."
He here referred to the Federal (framing) Convention "which prepared"--and the State Ratifying Conventions "which accepted"--the Constitution.
The Federalist has long been famous as an authoritative volume of greatest pertinence to important governmental problems, especially those involving constitutional principles. Jefferson praised it highly in late 1788 in a letter to Madison written from Paris (where he was then the American Minister), saying that it is: ". . . in my opinion, the best commentary on the principles of government which ever was written." Washington's high opinion of The Federalist, expressed from the standpoint of having presided over the Framing Convention and having read probably all current writings of any consequence about the proposed new Constitution, were expressed repeatedly in his correspondence and most interestingly in a letter to Hamilton (August 28, 1788):
"As the perusal of the political papers under the signature of Publius has afforded me great satisfaction, I shall certainly consider them as claiming a most distinguished place in my Library. I have read every performance which has been printed on one side and the other of the great question lately agitated (so far as I have been able to obtain them) and, without an unmeaning compliment, I will say, that I have seen no other so well calculated (in my judgment) to produce conviction on an unbiased Mind, as the Production of your triumvirate. When the transient circumstances and fugitive performances which attended this Crisis shall have disappeared, That Work will merit the Notice of Posterity; because in it are candidly and ably discussed the principles of freedom and the topics of government, which will be always interesting to mankind so long as they shall be connected in Civil Society." (Emphasis per original.)
By "triumvirate," Washington referred to the three authors of The Federalist: Hamilton, Madison and Jay. All of the essays were published over the signature "Publius," in keeping with the custom of that time of using pen names in publishing political views; but the identity of the authors was a poorly kept secret.
Praised abroad over the generations, where it has been reprinted in various languages in different countries from time to time--for example, in France in 1792, in Brazil (in Portuguese) in 1840, in Argentina (in Spanish) in 1868, in Germany in 1864, and in 1911 in Britain in an edition designed for British readers--The Federalist has been so admired and prized in America that the domestic editions published are now counted in the dozens, several having appeared in recent years.
This book's 85 essays were written by Hamilton and Madison, two of the most distinguished leaders who had been members of the Framing Convention, and by John Jay--equally distinguished as a lawyer and political leader of New York, also in charge of foreign affairs under the Confederation in 1787, and in 1789 chosen by President Washington to be the first Chief Justice of the United States. Of these essays, Jay wrote five chiefly on foreign affairs, Hamilton wrote fifty one, and Madison wrote the remainder--a few with some data from Hamilton. Most of the essays were first published in a long series of articles in newspapers in New York City in 1787-1788 --commencing on October 27, 1787, and continuing at irregular intervals until mid-1788. (See page xxix, ante, as to authorship.)
They were presented as an authoritative and joint report of the thus well-publicized intent of the Framing Convention expressed in the Constitution and, therefore, of its original and true meaning; which is always controlling, subject to change by the people only by its amendment. Each one's contribution was acquiesced silently by his co-authors, in keeping with the joint-report nature of the essays. The authors' immediate purpose was to help to win support for its ratification, based upon sound understanding of its real meaning in keeping with this intent, and to dispel the confused thinking in this regard which was then widely prevalent due largely to uninformed assumptions about it. These essays were also published in book form (two volumes) in March and May, 1788 under the title, The Federalist: A Collection of Essays, written in favour of the New Constitution. As agreed upon by the Federal Convention, September 17, 1787. Their publication in book form was Hamilton's self-appointed responsibility. (This volume's essays, written when there were no political parties such as came into being later, had no connection of course and should not be confused with the party created later and led by John Adams and Hamilton--called the Federalist Party--which strongly opposed, and was vigorously fought by, Jefferson and Madison as leaders of the Republican Party founded by Jefferson.)
In these articles Hamilton, Madison and Jay discussed comprehensively and authoritatively, in the light of both American and Old World history, the nature and significance of the fundamental principles underlying the American philosophy of Man-over-Government, as well as the actual intent with which the Constitution was framed--the intent expressed in its provisions. This philosophy and the Constitution's meaning cannot be understood adequately without understanding what is presented in The Federalist. Hence its vital importance today to all Americans desirous of being adequate defenders of the Constitution, of the Republic, of their own and the people's liberties, of the cause of safeguarding constitutionally limited government as the bulwark of Individual Liberty, and of the just heritage of the helpless children of today and of Posterity in America.
The true meaning of the Constitution, as intended by the Framing Convention, was well known to the members of the State Ratifying Conventions when they adopted it. This knowledge came partly through members of the latter Conventions who had been members of the Framing Convention or who were in touch with some of its members when the State Conventions were held between October 1787 and mid-1788. It also came through some dissemination of The Federalist articles after their initial publication in newspapers of New York City as well as in book form in the Spring of 1788. It is reasonable to assume, for instance, that copies of many if not most of these newspaper articles were promptly mailed by interested leaders in New York to similarly interested leaders in all of the States--especially those seeking ratification and able to inform the State Ratifying Conventions and others of the substance of these articles; also reasonable to assume that some of the articles were reprinted and circulated among leaders in the States. Note, for example, that in November and December 1787, Washington received from Hamilton and Madison copies of the newspaper essays published in that period and passed them on to a Richmond newspaper, through an intermediary, for republication; he also asked that he be sent copies of future essays, in this newspaper series, when published; and he wrote to Madison in February 1788 asking for several copies of the volume of those about to be republished in book form. (Letters: to Hamilton November 10, 1787; to David Stuart, in Richmond, November 30, 1787; also to Madison December 7, 1787, and February 5, 1788.) Another example is Hamilton's sending in May-June 1788 to Governor Randolph in Richmond, Virginia, 52 sets of the two volumes of these essays, in book form, for use during the Virginia Ratifying Convention--over which Randolph presided as chairman. Madison took a leading part in that Convention and he, too, of course had them available; and presumably some other members of the Convention also had copies (in either newspaper, or book, form). Evidence of The Federalist's contemporary use elsewhere has also been found.
The proceedings of the Framing Convention had been kept secret, in order to prevent unsound and distracting pressures from being applied to its members during their deliberations. As soon as they adjourned, however, in September 1787 and The Federalist articles began to appear in the following month, the public--and especially those who were soon to serve as members of the State Ratifying Conventions--commenced to gain fuller information about the background and meaning of the provisions of the proposed Constitution; that is, the meaning as intended by the Framing Convention as reported in these essays. Some Framers were also Ratifiers.
The meaning of the Constitution's provisions, as reported in The Federalist, is the same as was understood by the State Ratifying Conventions. This fact is fundamentally important because the true sanction and authority of the Constitution, as the people's basic law, stems from the actions of these Ratifying Conventions in adopting it as the sovereign people's specially chosen representatives, authorized to act for them in this regard--each State acting independently.
It is especially noteworthy, in connection with the Constitution as framed, that Madison stated in Congress in 1796 that "life and validity were breathed into it by the voice of the people, speaking through the several State [Ratifying] Conventions . . ."--that is, the understanding by these Ratifying Conventions of its meaning is controlling. He reiterated this in 1831 (letter to N. P. Trist), stating that it was the proceedings "of the State Conventions which gave it all the validity & authority it possesses." To the same effect, Chief Justice John Marshall stated for the Supreme Court in the 1819 McCulloch case (page 403 of opinion) that it is from these State Conventions that "the constitution derives its whole authority" as the basic law of the people. (The Framing Convention produced nothing but a draft of a proposed Constitution.) This was well understood by The Founders.
Note again the statement (page 148, ante) by Madison, in his 1825 letter to Jefferson, that The Federalist is "the most authentic" report of the meaning of the Constitution as understood and intended by both the Framing Convention and the State Ratifying Conventions.
Any adequate examination of the pertinent historical records will, it is believed, satisfy all competent and reliable scholars as to the soundness of the conclusion that, in the period of ratification as well as in the subsequent years, The Federalist was familiar to, and accepted by, those best able to judge--notably the leading and most active members of the Framing and Ratifying Conventions--as being a dependable and authoritative report, jointly by the authors (each acquiescing silently in the essays written by the others), of the intent of the Framing Convention expressed in the words of the Constitution and of its true meaning as understood and accepted by the State Ratifying Conventions. Here "the authors" refers primarily to Hamilton and Madison because Jay, due to illness, wrote only five essays (on foreign affairs in the main) and was not involved in intimate collaboration in this connection as were the other two authors.
The greatness of this volume is conceded by all who are qualified to judge, especially on the basis of competence of scholarship and intellectual integrity--with no axe to grind by way of misconstruction so as to serve some ulterior purpose. Its greatness is due in part to the fact that it was the first work in all history to define and discuss adequately the theory and realities of self-government through constitutionally limited government and of the principles of federated government: a federation of republics. This was done moreover in a thorough, comprehensive, realistic and authoritative manner, with adequate consideration of history's teachings in the field of government--duly respecting Man's experience as a guide, in keeping with the motto: "foresight through hindsight." It constitutes a unique and magnificent contribution to the science of government.
The Federalist has always been accepted by all who are qualified to judge (as specified above)--including the United States Supreme Court in scores of cases during the century and a half after 1787--not only as reporting correctly the original intent with which the Constitution had been framed and ratified and, therefore, its true meaning, but also as an authoritative exposition of the American philosophy (of constitutionally limited government, in a Republic) reflecting the essence of the principles, ideals and goals of the Declaration of Independence as best summarized in the Constitution's Preamble:
"WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." (Per original.)
Here the word "Liberty" serves as a principal connecting link between the two documents. The words: "We, the people of the United States," were intended to refer to the people of each of the States acting separately--through a State Ratifying Convention--and not to the people of the nation as a consolidated whole, as all competent and reliable authorities have always agreed; for example Madison in The Federalist number 39.
The United States Supreme Court's early opinion of The Federalist, as such a sound guide to the meaning of the Constitution, was expressed for example in the statements of Chief Justice Marshall, for the Court, in the 1819 case of McCulloch v. Maryland (page 433) and the 1821 case of Cohens v. Virginia (page 418); and see the 1895 Pollock case (pages 625, 627)--references being to pages of the opinions in the official reports. It is of special interest to note that, in this last-named case in 1895, the Supreme Court decided that the argument which had been presented by Hamilton as counsel in a 1796 case--arguing that a provision of the Constitution had a meaning which conflicted with its meaning as reported in 1787-1788 by him and his co-authors in The Federalist in keeping with the intent of the Framing Convention--had to be rejected because, said the Court (page 627 of opinion), the report in The Federalist was so authoritative that it "should not and cannot be disregarded." This was the consistent attitude of the Court toward The Federalist, as being authoritative and reliable in this regard, through the first century and a half of the life of the Republic.
The authors of The Federalist explained with great particularity the Constitution's plan for an enduring system of Man-over-Government (limited, decentralized government) which, as a dependable safeguard of the people's liberties, would serve well these American ideals and goals. However, these authors warned expressly and repeatedly that this would be true only if, and so long as, the people would require their public servants, the officials of the Federal government, to respect in practice the Constitution's limits on its powers; only if, and so long as, the people would prevent these public servants, these public trustees, from committing the gravest of civic crimes: usurpation of power--that is, misusing granted power, or grasping power in violation of, and beyond, the limits prescribed by the sovereign people in the Constitution, as amended by them.
Another important principle, which the authors of The Federalist made clear (notably in No. 43), deserves mention here. It is that the people's power to amend the Constitution as and when they see fit, to meet changing conditions, was expressed in the amending clause (Article V) and was intended to give it the needed flexibility, while preserving the necessary stability of the people's basic law and the federated system of government (featuring decentralized power through its division between a central government and State governments). This indicates the nonsensical, indeed preposterous, nature of any claim that usurpation of power is justified by the "rigidity" of the Constitution, especially in the light of the fact that when the people are ready for a particular amendment they will have it approved quickly--as in 1933 in about eleven months (the 21st Amendment repealing the 18th, or "Prohibition," Amendment); also in 1960-1961 in less than ten months (the 23rd Amendment). Any such claim--in effect that public servants, especially judges by "interpreting" the Constitution to suit themselves, may properly grasp power by usurpation--mocks the entire American philosophy and system of constitutionally limited government and amounts to assumption by these public servants of the role of the masters with the people treated as subject to the Will of these usurpers, in effect as their servants. Usurpation is, of course, never justifiable but always unconscionable--the end does not justify the means; and to tolerate it is, in reality, to sanction and foster the ultimate doom of constitutionally limited government and consequently the people's liberties--as well as Posterity's just heritage and the Republic--given enough time. This topic will be discussed later more fully concerning the role of the Supreme Court.
The Federalist also made clear a profound truth which refutes the fallacy that the Constitution is out-of-date, that it was suited only to the comparatively "simple" civilization of the period of The Founders: "the horse and buggy days." This truth is that these constitutional safeguards will always be necessary because they are designed to protect the people's liberties against the never-changing weaknesses of human nature in government; that, just as these weaknesses will never change, so the need for these safeguards can never change. This is all the more true because of the corresponding weaknesses of human nature among the electorate; these mutual and inter-related frailties of the people and of their public servants play upon and support each other to the ceaseless peril of Individual Liberty, as history proves. (Note again the very significant Jefferson quotation on page xx, ante.) Therein lies the key to sound understanding of the enduring value of the Constitution. It can, of course, fill its safeguarding role only if respected in practice--only if the people exercise not only vigilance but self-discipline by themselves respecting the Constitution and compelling their public servants to abide faithfully by the limits on their power as provided in this fundamental law (per their oath of office).
It is important to note that in The Federalist, especially numbers 33 and 78, Hamilton made perfectly clear The Framers' understanding and intent with regard to the controlling effect of the Constitution as the sovereign people's basic law, as the "supreme Law of the Land," in its original, true and always-controlling meaning: that is, in keeping with the intent with which the original instrument, and later each of its amendments, was framed and adopted. This point will be discussed more fully later. (The Appendix to this study-guide presents some excerpts from The Federalist pertinent to this topic.)
To understand the message of The Federalist is to understand, in its essential aspects, the traditional American philosophy and system of constitutionally limited government, of Man-over-Government through Rule-by-Law on the basis of the Constitution. This is why this unique volume is of enduring and inestimable value, of supreme importance, to all Americans of all generations--critically so with regard to the present generation's need of the knowledge required for the adequate and sound discharge of the daily duties of self-governing in keeping with the duty aspect of Individual Liberty-Responsibility.
(The text of The Federalist is available in bookshops in various editions including some in paperback form; but only those are dependable which reproduce the exact and complete text of the original essays as published initially in newspapers, or in book form in 1788 under Hamilton's supervision, and without any change by the editor unless clearly and expressly brought to the reader's attention in each and every instance. Any editor's comments merit cautious scrutiny.)
The foregoing indicates some of the main sources studied by the present author during his extensive research over many years in the numerous, authoritative writings of the period 1776-1787 pertinent to full understanding of the background and meaning of the Declaration of Independence and of the Constitution, including especially the voluminous writings of a number of the leading signers of these documents; also writings of many leaders of American political thought in the more extended period from 1750 to 1800. The records of the Framing Convention and of the State Ratifying Conventions in 1787-1788 are authoritative and invaluable sources in this connection.
Because of the importance of economic liberty--the economic aspect of the indivisible whole of Individual Liberty--it is noteworthy that two writings in the field of economics, of political economy, were looked upon with great respect and special favor by the generation of those who signed the Declaration of Independence and the Constitution. One was Adam Smith's famous Wealth of Nations, first published on March 9, 1776. He was professor of Moral Philosophy at the University of Glasgow. The other was Jean-Baptiste Say's less well-known volume, A Treatise on Political Economy, first published in Paris in 1803. It was so popular in America that seven American editions, English translation, had been published by 1867. (Smith's book is readily available to the American people in bookshops, for example in the Modern Library edition.) Jefferson wrote of Smith's book that: "In political economy I think Smith's Wealth of Nations the best book extant . . ." (Letter to T. M. Randolph, 1790; title not italicized in the original.) On another occasion, after mentioning various writings, he wrote (letter to John Norveil, 1807) that:
"If your views of political inquiry go further, to the subjects of money & commerce, Smith's Wealth of Nations is the best book to be read, unless Say's Political Economy can be had, which treats the same subject on the same principles, but in a shorter compass & more lucid manner."
(Titles not italicized in the original. Several editions of Say's book are available in the Library of Congress. Full title of Smith's book is, An Inquiry Into the Nature and Causes of the Wealth of Nations.)
The Federalist is especially enlightening with regard to a topic about which there is widespread confusion, now to be discussed. The volume needs, however, to be considered carefully in this regard in all of its pertinent parts--not merely this or that part separately--for full comprehension. This is true partly because each of the various essays (of newspaper-article length) which refers to the topic could often note only some particular aspect due to the need of brevity; also they were addressed to a public far better informed in this regard than is today's generation, therefore much knowledge could be assumed.
The definitions of the "Twelve Basic American Principles," in the preceding Part I, are based upon the results of many years of research by the present writer in the writings of American leaders of the period 1750-1800, including particularly those eminent among the Signers of the Declaration of Independence and the Constitution. Special attention was given to what might be called the Jefferson-Madison list of sound sources in this connection.
In collaboration with Madison, who is often and justly called "the father of the Constitution" because of his exceptionally valuable and diligent service in 1787 in the Federal (framing) Convention, Jefferson provided an especially interesting and most persuasive piece of evidence that they, and assuredly their fellow leaders in general, accepted a certain set of principles as being fundamental American principles of government--together constituting the uniquely American philosophy of government; made genuinely American by being put into practice by the people. This was the resolution which these two members of the Board of Visitors of the University of Virginia offered and caused to be adopted by the Board at its meeting in March 1825 (Jefferson then being the Rector). It stated that all students shall be "inculcated" with the basic American governmental principles and that "none should be inculcated which are incompatible with those on which the Constitutions of this State, and of the U.S. were genuinely based, in the common opinion." The faculty was thus required to teach positively and affirmatively ("inculcate" and "indoctrinate" being synonymous under the word "teach") these principles only. Such sound teaching does not preclude, indeed it requires, students being taught about conflicting principles in order to enable them to understand the unsoundness of the latter--judged by the sound standard of the American principles, with which the students must, of course, first be made familiar so as to have a "yardstick" by which to judge soundly.
Jefferson, Madison and their fellow leaders were undoubtedly in agreement on this point: that in order to inculcate the sound American principles--partly by teaching uninformed and impressionable Youth about the conflicting principles which are unsound, judged by this "yardstick," so as to enable them to understand fully the soundness and value of the American principles, considered comparatively--it is of course necessary that the reasons for the comparative unsoundness of the conflicting principles be stressed comprehensively, clearly and positively through adequate teaching, with scholarly competence and intellectual honesty, in keeping with the duty aspect of Academic Freedom-Responsibility, which is in a very real sense closely related to Individual Liberty-Responsibility in general. Otherwise the students are deprived of the substance of their right to freedom of choice; they cannot choose soundly between alternatives which they do not know, or do not understand adequately in all their implications for the long term. The exact wording of the Preamble to the Board's above-mentioned resolution is as follows:
"Whereas it is the duty of this board to the government [of the United States] under which it lives, and especially to that [of Virginia] of which this University is the immediate creation, to pay especial attention to the principles of government which shall be inculcated therein, and to provide that none shall be inculcated which are incompatible with those on which the Constitutions of this State, and of the U.S. were genuinely based in the common opinion: and for this purpose it may be necessary to point out specifically where these principles are to be found legitimately developed . . ."
For this purpose, the resolution specified six writings (named below) as being, in the Board's opinion, such authoritative sources.
This resolution did not express merely the Board members' personal views. It was in effect certifying to the truth of an important point, accepted and firmly supported with unanimity by the American people in 1776 and through all succeeding generations for about a century and a half: that America does have a distinctive, indeed a unique and definable, governmental philosophy which is firmly rooted in her well-defined traditions; and that youth should be indoctrinated accordingly.
Four of the six writings, reflecting long experience in government in America, were referred to as embodying these American principles. They are: (1) the Declaration of Independence; (2) Washington's Farewell Address; (3) the Virginia Resolutions of 1799 (adopted by the Virginia Legislature); and (4) The Federalist. These are the American sources cited. The remaining two of the six writings are much earlier volumes by Old World authors, concerning abstract theories of government: John Locke's Essay Concerning The True Original Extent and End of Civil Government (originally published in 1690), and Algernon Sidney's Discourses Concerning Government (1698). These two writings were listed in that resolution as being sound sources of "the general principles of liberty and the rights of man in nature and society;" that is, as theoretical discussions. These six writings were prescribed as textbooks for law students.
In the Appendix of this study-guide, there are presented, for ready reference, the text of some of these sources: the Declaration of Independence; the Farewell Address; and the above-mentioned Virginia Resolutions. The Appendix also presents selected parts of several essays of The Federalist. These sources constitute a part of the reliable proof--on the authority of Jefferson, Madison and their fellow members of the University's Board of Visitors--that there does exist a distinctive and definable American philosophy consisting of a set of specific, traditional principles as applied governmentally.
The American sources cited, in the University resolution, alone contain adequate evidence of the soundness of the definitions of the Twelve Basic American Principles presented in the preceding Part I of this study-guide. Among the many other writings consulted in this regard, those especially of Washington, Jefferson, Madison, Hamilton, and John and Samuel Adams--to name a few of the most prominent leaders--offer a wealth of supporting evidence. Brief comment concerning five of the above-listed sources, and extended discussion of The Federalist, are in order at this point.
Madison wrote Jefferson on February 8, 1825, that the writings of Sidney and Locke ". . . are admirably calculated to impress on young minds the right of Nations to establish their own Governments, and to inspire a love of free ones . . ." and, further, that the Declaration of Independence is ". . . rich in fundamental principles . . ." Madison also stated that he had considered Jefferson's suggestion of a textbook for the University's Law School and added: "It is certainly very material that the true doctrines of liberty, as exemplified in our Political System, should be inculcated on those who are to sustain and may administer it."
It is noteworthy, in passing, that Locke's and Sidney's writings are soundly considered not to have originated the basic ideas, or principles, entertained by American leaders but principally to have helped to clarify the expression of some which were already a part of the thinking of these leaders--clarification by way of logical exposition and lucid expression. Note also that the frequency of quotation by American leaders in this period of a few of Locke's statements as to some main ideas should not be permitted to lead to the erroneous conclusion that writings of other foreign philosophers also in this field were not similarly utilized; because many of these leaders were familiar with them. It should never be lost sight of, moreover, that the fundamental American principles of government were the outgrowth mainly of generations of painful experience in self-government in America and were not merely theoretical ideas drawn from books --this being true as to the principles of the Declaration of Independence as well as of the Constitution and the constitutional system. These principles, derived mainly from experience in America, were thus given support--in application in practical affairs--by selective, not imitative, use of the foreign writings, which were themselves chosen on a similar, selective basis. The Americans made use of the parts of any writing which served their purpose but did not embrace in their entirety any foreign writer's set of ideas. Then, as now, American thinking was more practical than theoretical--as John Adams stated (1778, "Thoughts On Government"): "It must be conceded that, as yet, philosophical generalization upon abstract questions of the highest class is not the characteristic of the American mind."
The Virginia Resolutions of 1799, drafted by Madison and adopted January 4, 1799--and his lengthy 1799 Report to the General Assembly (adopted January 7, 1800) in explanation and support of its Resolutions of December 21, 1798--were intimately related to the famous Kentucky Resolutions drafted by Jefferson and adopted by the Kentucky Legislature on November 10, 1798. All of these Resolutions were in defense of the rights of the people and of the States, as reserved by the Constitution and expressly by the Ninth and Tenth Amendments to the Constitution, against what were considered to be the recent usurpations and abuses of power by the Federal government in various respects, chiefly through the Alien and Sedition Laws of 1798. These resolutions were not the first such protest by a legislature; in 1790, for instance, the Virginia Legislature had protested against the Federal government's assumption of the war debts of the States as being unconstitutional. Other States did not support the Virginia Resolutions of 1798, but this legislative protest helped to start the creation of public opinion in opposition to these 1798 laws with the result that their end was assured by the next election. Use of legislative protests, exemplified by Kentucky and Virginia in 1798, was moreover resorted to in the succeeding decades by the governments of various States--in New England, the North in general, the Midwest as well as in the South--in support of their own respective complaints from time to time against what they deemed to be abuses, or usurpations, of power by the Federal government, including especially the Supreme Court, in violation of the reserved rights of the States under the Constitution. These developments are recorded in detail and at length in the book, State Documents on Federal Relations: the States and the United States, by Dr. Herman V. Ames of the faculty of the History Department of the University of Pennsylvania, which published it in 1906.
An impressive example of such later, legislative protests is the set of resolutions adopted in 1815 (during the war with England) by the Hartford Convention--representing the governments of Massachusetts, Connecticut, Rhode Island, Vermont and New Hampshire--protesting against what were considered to be Federal usurpations, potential or actual, regarding use of the States' Militia by the Federal government in war operations and concerning other matters involved in national defense. (See quotation from these Hartford Resolutions page 14, ante.) The Fugitive Slave Law and the Supreme Court's decision in the 1857 Dred Scott case, Scott versus Sandford, concerning slavery, as well as later decisions of the Court involving this subject, aroused violent protests by the governments and especially the legislatures of various States. A notable example is the resolution adopted by the Massachusetts' Legislature in 1858, against the Dred Scott decision, asserting that the people of Massachusetts would never consent to any invasion of their liberties by reason of the Supreme Court's "usurpations of political power" and, further, "That no part of the decision of the supreme court of the United States, in the case of Scott versus Sandford, is binding, which was not necessary to the determination of that case . . ." This referred to what were considered to be political parts of the decision. A more extreme protest, against a decision of the Supreme Court involving the subject of slavery, was that of the Wisconsin Legislature in 1859 asserting that the Court's decision was "an arbitrary act of power, unauthorized by the constitution . . . and therefore without authority, void, and of no force . . . and that a positive defiance . . . is the rightful remedy." (Emphasis per original.) This meant the proper remedy of the States in self-defense and defense of the Constitution against usurpation of power by the Federal government, including the Supreme Court. Other States in the North and the Mid-west were vigorous in their legislative protests in this pre-Civil War period regarding the Dred Scott case and matters involving the Fugitive Slave Law.
It is noteworthy that the Virginia Resolutions of 1798, pertaining to Federal laws, did not use any language such as that used by the above-quoted Wisconsin Resolutions: "void, and of no force." In the 1830's Madison wrote a lengthy manuscript: "Notes on Nullification" in which he emphasized that the Virginia Resolutions were not intended to attempt nullification of any Federal law and therefore were not a precedent for the 1832 "Ordinance of Nullification" of South Carolina, which he considered unsound. He had also discussed this topic at length in an 1830 letter to Edward Everett and an 1832 letter to N. P. Trist. Madison well knew, of course, what Hamilton had made entirely clear in 1787-1788 in The Federalist (especially number 78, also number 33) to have been the understanding of the Framing Convention: that it is the Constitution only, as the "supreme Law of the Land," which can--and does automatically--make null and void any conflicting Act of Congress. This applies equally to other things governmental, such as Supreme Court decisions. The State Ratifying Conventions also understood this. The controlling principle is this: no legislature, or government, of a State has any power, under the constitutional system, to nullify any Federal law, or Federal court decision, and the converse is equally true. This basic principle was noted in The Federalist number 34 by Hamilton (referring to a law as an act): ". . . there is no power on either side to annul the acts of the other." Any annulling is by the Constitution.
An important consideration needs stressing at this point. It is that a protest by a State legislature against claimed Federal usurpation, or abuse, of power is entirely sound constitutionally and traditionally as one of the peaceable remedies (within the constitutional system) available to the States, in any such situation, as indicated expressly in The Federalist number 46 by Madison. Any such protest by a State legislature, thus acting within the constitutional system, amounts of course to nothing more than a declaration of opinion of that body without in the least affecting the tact of constitutionality, or unconstitutionality, as the case may be, of the Act of Congress in question. Madison made this point expressly in his clarifying discussion in his above-mentioned "Notes on Nullification" with regard to the Virginia Resolutions of 1798 and 1799. The basic importance of this topic makes it deserving always of most thoughtful consideration.
The foregoing brief discussion of these resolutions and their historical significance must suffice for present purposes due to lack of space for more extended consideration.
The inclusion of the Declaration of Independence in this list of writings needs no explanation; but it is fitting to note the unusually interesting statement about it in the July 4th oration by Secretary of State John Quincy Adams in 1821 (destined soon thereafter to become President):
"It was the first solemn declaration by a nation of the only legitimate foundation of civil government. It was the corner stone of a new fabric, destined to cover the surface of the globe. It demolished at a stroke the lawfulness of all governments founded upon conquest. It swept away all the rubbish of accumulated centuries of servitude. It announced in practical form to the world the transcendent truth of the unalienable sovereignty of the people. It proved that the social compact was no figment of the imagination; but a real, solid, and sacred bond of the social union." (Emphasis per original.)
He continued his eulogy by adding this poetic but just estimate of the Declaration:
"It stands, and must for ever stand, alone, a beacon on the summit of the mountain, to which all the inhabitants of the earth may turn their eyes for a genial and saving light till time shall be lost in eternity, and this globe itself dissolve, nor leave a wreck behind. It stands for ever, a light of admonition to the rulers of men, a light of salvation and redemption to the oppressed . . . [as the delineation of] the boundaries of their respective rights and duties, founded in the laws of nature, and of nature's God."
The profound and invaluable Farewell Address was prepared by President Washington over a period of several years with the elaborate attention merited by his last official utterance to the people of his day and to Posterity. He was assisted in this task by some of his associates, notably Alexander Hamilton and James Madison. The fact that it contains "political lessons of peculiar value"--to use the words of the 1825 University resolution--is obvious to even the casual reader possessing any familiarity with history's lessons in this field.
The Farewell Address reflected the accumulated wisdom of the ages regarding the topics discussed, as understood not only by Washington, Madison and Hamilton but also by their fellow leaders as well as by that period's multitude of well-informed and thoughtful Americans so alert intellectually and profoundly concerned with regard to things governmental, chief of all the philosophy of government in relation to Man's Liberty. This address reflected the teachings of history and of governmental experience not only in America but in the Old World, with which The Founders were thoroughly familiar. An especially interesting book concerning the development of this address is entitled Washington's Farewell Address, edited by Victor Hugo Paltsits, published in 1935 by the New York (City) Public Library.
If they fail to comprehend the profound significance of the foregoing points--of the fundamental difference between the philosophy and system of Great Britain, featuring Government-over-Man and The Majority Omnipotent, on the one hand, and, on the other hand, the American philosophy and system of Man-over-Government featuring constitutionally limited government designed primarily for the protection of Man's God-given, unalienable rights--the American people can have no adequate conception of the Twin Revolution of 1776 or of their heritage. Without such comprehension and steadfast loyalty to the traditional American principles and values involved, they cannot fulfill their duty as temporary trustees--of the American heritage--for America's youth today and Posterity.
The spirit of Free Men such as Patrick Henry and Samuel Adams, the pioneering Daniel Boone and other frontiersmen, for example, is expressive of the true spirit of traditional America. To those benighted souls who cry for "security"--either that of the subjects of a benevolent king, or of a paternalistic system of Government-over-Man with its government-provided economic "security" accompanied inescapably by only a limited degree of Liberty, namely a system of Man subservient to Authority--The American Spirit replies.
Better Liberty with the challenge
And dangers of the untried, unknown,
Than Servitude's deadly certainty
Of economic security.
The principles stated in the Declaration of Independence were truly expressive of the deep-rooted convictions in 1776 not only of its signers and other American leaders but of the people in general. As its chief draftsman, Jefferson wrote later that in it he sought to express no new ideas but only those commonly prevailing throughout the country. As he put it in 1825 (letter to Henry Lee), the Declaration was designed not to present new principles, or arguments, but "to place before mankind the common sense of the subject, . . . intended to be an expression of the American mind . . ." In the same year (letter to Dr. James Mease) he stated that the Declaration was ". . . the genuine effusion of the soul of our country at that time." The same sentiments, in substance, were expressed in 1822 by John Adams--one of the drafting committee's members and chiefly responsible for insisting that Jefferson do the actual, initial drafting--(letter to Timothy Pickering) stating:
"As you justly observe, there is not an idea in it but what had been hackneyed in Congress for two years before. The substance of it is contained in the declaration of rights and the violation of those rights, in the Journals of Congress, in 1774. Indeed, the essence of it is contained in a pamphlet, voted and printed by the town of Boston, before the first Congress met . . ."
As noted in the Introduction to this study-guide, a somewhat similar observation had been made by John Adams in a letter to Samuel Chase in July, 1776. The records fully bear out these concurring statements by Jefferson and John Adams. The sentiments expressed in the Declaration of Independence were, indeed, those of the American people in general--loyal to the aims of the two Revolutions of 1776: the Revolution for Independence and the Twin Revolution in support of Individual Liberty: Freedom of Man from Government-over-Man.
The deep-seated and long-developing nature of "the common sense of the subject"---of the thinking of the American people expressed in the Declaration--is illustrated by the striking fact that a book published over half a century earlier by one of the New England clergy, Reverend John Wise, expounded and espoused with remarkable clarity and great assurance, born of firm conviction, most of the principal ideas, or principles, presented in this 1776 document. The idea of Equality was discussed--for instance, there is a "natural equality of men amongst men," which must be "favored" (respected). The fundamental rights: "life, liberty, estate" (property) were commented on. The fact that the primary role and aim of Government is the protection of these rights and to serve the common good, as well as the topic of Man's relationship to Government, were also discussed. For instance, he noted that Man delegates power to government--(part of) his "original liberty" is "resigned"--not unconditionally but "under due restrictions" (namely, permitting government to possess only limited powers) and that Man's reserved rights "ought to be cherished in all wise Governments; or otherwise a man in making himself a subject, he alters himself from a freeman, into a slave, which to do is repugnant to the law of nature." Here he noted, in effect, not only the limited-power nature of Government, by grant of power under "restrictions" by the people, but also the fact that its granted powers should be such as to be consistent with a Freeman's Liberty. He also emphasized the "Compact" theory: that Men enter into Society, form their governments, by contract freely entered into and "not of divine institution" (not in keeping with the rejected theory of the Divine Right of Kings), and that government "is the produce of mans reason, of human and rational combinations . . ." Furthermore, this book stressed the fundamental, political tenet of the 1776 Declaration: that the source of Government's power "is the People."
All of this advanced and forward-looking political thought, and much more, is found in this Ipswich, Massachusetts, clergyman's 1717 book, A Vindication of the Government of New-England Churches. It is unexcelled among all such writings of the Colonial period. Although he did not discuss that other great political idea of the 1776 Declaration: the people's right to revolt against tyrannical government, yet he observed that "the prince who strives to subvert the fundamental laws of the society, is the traytor and the rebel"--that is, public officials who act outside of their granted authority and violate its limits as prescribed by the people under the fundamental law are the traitors and rebels and not the people who resist their tyranny. It is also noteworthy that this clergyman was in the lead of the revolt of the Town of Ipswich in 1687 against Royal Governor Andros and his tax levied without consent of the popular legislative body--a revolt based upon the principle of popular sovereignty as to taxation; the Town-meeting refused to authorize collection of the tax and, for his refusal to pay the tax, Clergyman Wise was tried, fined and suspended from the Ministry--also jailed during the proceedings. This is commemorated by the inscription on the town's official seal: "The Birthplace of American Independence, 1687."
This 1717 book of Reverend Wise emphasized the relationship of Man to the Law of Nature and his capacity to understand it through use of his faculty of reason; the Law of Nature is "the dictate of right reason." Note also the statement in an oration on July 4, 1787 by Joel Barlow at Hartford, Connecticut, in celebration of the anniversary of the proclamation of the Declaration of Independence, that:
"The present is an age of philosophy, and America the empire of reason. Here, neither the pageantry of courts, nor the glooms of superstition, have dazzled or beclouded the mind. Our duty calls us to act worthy of the age and the country that gave us birth. Though inexperience may have betrayed us into errors--yet they have not been fatal: and our own discernment will point us to their proper remedy."
This "discernment"--the capacity to reason--was considered by The Founders and their fellow leaders of that period, as well as those like Reverend Wise of earlier generations, to be self-governing Man's salvation, if soundly exercised. His 1717 book makes it clear that this "age of philosophy" and this "empire of reason" in America did not originate in the 1776 period but was in bud, if not in flower in remarkable degree, in Wise's day--based of course upon much older roots in American thinking and experience in government, with the benefit of wide reading of Old World writings.
The steadily developing American character of this early thinking, of these precepts, stemmed from the fact that the American people were applying them in practice, living by them, in increasing degree; though some abstract ideas, or ways of expressing them, were selectively adapted from theoretical writings of foreign authors. Ideas applied governmentally became uniquely American principles.
Magna Carta was signed at Runnymede in 1215 by King John under the extreme coercion of the threat of death by the sword, upon demand by the assemblage of armed noblemen that he immediately sign this document. As stated in The Federalist number 84 by Hamilton, Magna Carta was "obtained by the Barons, sword in hand, from king John." This document was designed chiefly to clarify and make more formal and definite certain pre-existing, king-granted rights, of the noblemen themselves primarily; and it is a chief example of the application of the principle of king-granted rights--originally based upon the Old World concept of the divine right of kings. Magna Carta is, therefore, in keeping with--was an early expression of--Britain's traditional philosophy and system of Government-over-Man exemplified in modern times, as noted above, by the absolute supremacy of Parliament--now of the House of Commons alone.
Magna Carta's philosophy of king-granted rights stands, therefore, for the antithesis of the traditional American philosophy of Man-over-Government, based upon the uniquely American concept of God-given, unalienable rights safeguarded by a system of constitutionally limited government created by the sovereign people, under a written Constitution adopted by them, primarily to make and keep these rights secure.
The conflict between the philosophy underlying Magna Carta and the traditional American philosophy was noted in the address by Secretary of State John Quincy Adams in celebration of the Fourth of July, 1821, in these words:
"The people of Britain, through long ages of civil war, had extorted from their tyrants not acknowledgements, but grants, of right. With this concession they had been content to stop in the progress of human improvement. They received their freedom as a donation from their sovereigns; they appealed for their privileges to a sign manual and a seal; they held their title to liberty, like their title to lands, from the bounty of a man; and in their moral and political chronology, the great charter of Runny Mead was the beginning of the world . . . the fabric of their institutions . . . had been founded in conquest; it had been cemented in servitude . . . instead of solving civil society into its first elements in search of their rights, they looked back only to conquest as the origin of their liberties, and claimed their rights but as donations from their kings. This faltering assertion of freedom is not chargeable indeed upon the whole nation. There were spirits capable of tracing civil government to its foundation in the moral and physical nature of man; but conquest and servitude were so mingled up in every particle of the social existence of the nation, that they had become vitally necessary to them . . ." (Runny Mead is also spelled Runnymede; emphasis per original.)
To repeat, the traditional American philosophy of Man-over-Govern-ment based upon the concept of God-given, unalienable rights is utterly antithetical to the philosophy of Magna Carta's Government-Over-Man, with its king-granted rights.
There was a great difference between this Twin Revolution of 1776 and the revolution in France which commenced in 1789. The latter had no such sound foundation in the French people's experience but was entirely theoretical--in support of merely abstract ideas of only a few leaders; it was destructive of existing institutions and customs and entirely lacked any element of the constructive based on established principles previously put into practice by the people. This is why the French people, after enduring some years of wanton tyranny and ruthless terror under revolutionary leaders, voted in favor of a return to their own political servitude through restoration of the philosophy and system of Government-over-Man, under Napoleon as emperor. Those destructively revolutionary ideas and theories of the French Revolution's leaders entirely lacked the main characteristic of the principles of the American Revolution--the Twin Revolution of 1776: firm conviction and dedication born of the people's long experience; and, furthermore, those ideas and theories were fundamentally the very antithesis of the American principles---chief of all the godlessness of the French Revolution's philosophy. This element of godlessness made nonsense of the assertion by these French leaders that they considered certain political rights to be unalienable; because rights can properly be termed unalienable only because God-given--the element of unalienability depending entirely upon the fact that they are bestowed upon Man by his Creator. (See Par. 2, p. 25, ante.)
The uniqueness of the philosophy of the Twin Revolution of 1776 is indicated by the fact that no other people in all history had ever advocated this philosophy's principles, much less proclaimed and acted upon them as a basis for creating such a system of self-government; although some Old World philosophers had, of course, written about some aspects of a few of these principles but only as abstract ideas unrelated to governmental reality. Former President John Quincy Adams commented to this effect in his 1839 "Jubilee" address.
This uniqueness is highlighted particularly by the fact that nothing even remotely like it had ever been conceived as a governmental philosophy, much less put into practice, even by the people of Great Britain. There the people had discarded centuries earlier the idea and system of the divine right of kings, of unlimited royal power and rule; but they adopted as a substitute the principle of unlimited power of the national legislature (Parliament) and, therefore, the absolute power of The Majority, so the philosophy and system of Government-over-Man was thus continued, and it continues to the present day. This development reflected a tradition in England of Authority Supreme--over Man, in an environment of a stratified society divided into sharply and rigidly separated classes. Long before the American Revolution, this English tradition was expressed by the famous English judge, Sir William Blackstone, as follows: ". . . there is and must be in all of them [States] a supreme, irresistible, absolute, uncontrolled authority . . ." and he further declared that Parliament is the possessor of this supreme power: ". . . the power of Parliament is absolute and without control." (Quoting his famous Commentaries.) The supremacy of Parliament is commented on, for example, in The Federalist number 53 by Madison. This supremacy is due to the fact that Britain has no written Constitution--nothing even remotely resembling the United States Constitution. Her so-called "Constitution" is nothing but the aggregate of all laws--which Parliament makes and can change at will--and customs concerning things governmental, all judicial decisions and traditional governmental practices; that is, in a general sense, all basic things of a governmental nature--all subject to Parliament's control.
The supremacy of Parliament is explained in the writings of the English legal authority, Albert V. Dicey, especially his Introduction to the Study of the Law of the Constitution. In this authoritative work, Dicey comments expressly about the peculiarly vague meaning of the terms "Constitution" and "constitutional" in England--that their so-called Constitution is not any "more sacred or difficult to change than other laws" and that "the meaning of the word 'constitutional' is in England so vague" that it is seldom used concerning any law. This topic is discussed also in the celebrated volume, The American Commonwealth, originally published in Great Britain in 1888 and dedicated to the above-mentioned Dicey, by the famous Englishman, James Bryce--also a legal authority--who was better known as Lord Bryce. He states without qualification that Parliament is omnipotent, can change any "constitutional statutes" such as Magna Carta the same as any other law--for instance a highway act, and can abolish any and all institutions such as the Crown and even Parliament itself; all because it possesses complete power and its will is law--is supreme.
This absolute supremacy of Parliament--in reality today of the House of Commons alone--spells The Majority Omnipotent because the decisions of this House are reached by vote of at least half-plus-one. Any such decision is completely controlling as to everything and everybody in Britain; so The Individual has no inviolable rights there, is completely helpless legally, as against The Majority.