George Washington on “the insidious wiles of foreign influence.”

With recent explosive reports that the Central Intelligence Agency (CIA) found that Russia tried to influence the 2016 presidential election, I thought I’d call attention to something George Washington warned the nation about in his 1796 Farewell Address

“Against the insidious wiles of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government.”

Further investigation is clearly required to determine the full extent to which Russia interfered with the 2016 election. What I will say, though, is that American citizens ought to continue to carefully follow this story and, in the words of Washington “be constantly awake” to “the insidious wiles of foreign influences.”

Wyoming Passes First Law Granting Women the Right to Vote On This Day in 1869

The Wyoming territorial legislature passed the first woman’s suffrage law on December 10, 1869, and women voted in the state for the first time in 1870. The legislation extended suffrage to “every woman of the age of twenty-one years, residing in this Territory.”

At the time, there was no organized suffrage movement in the Wyoming territory. William Bright, who was persuaded by his wife that all citizens should have the right to vote, sponsored a bill to extend the franchise to women.

Bright’s colleagues in the territorial legislature had a variety of reasons for voting in favor his bill – some were motivated by a sense of fairness, others, unfortunately, viewed it as an opportunity to counteract the voting rights of newly enfranchised African American men, and for still others it was a way to gain publicity and persuade more pioneers to settle in the western territory.

Regardless of the motivation of the various territorial legislators, once Wyoming women got the right to vote, the state kept up its tradition of being a first for women. Wyoming went on to become the first state or territory with female jurors, female justices of the peace, and, in 1924, it became the first state to elect a female governor (Nellie Tayloe Ross).

Before Wyoming entered the union in 1890, it passed a new state constitution in 1889, guaranteeing women the right to vote. When the U.S. Congress threatened to withhold statehood over the issue, Wyoming officials responded that the territory would rather remain a territory for 100 years than join the union without women’s suffrage. Congress ultimately relented.

Note: Although, Wyoming is the first state with a law and then state constitution explicitly guaranteeing women the right to vote, women first voted in the New Jersey under its 1776 Constitution, which vaguely stated that “all inhabitants” of the state could vote. Women voted in New Jersey until 1807 when the state legislature passed a law limiting suffrage to free white males.

 

On This Day in 1787, Delaware Becomes the First State to Ratify the U.S. Constitution

 

delaware-license

On December 7,  1787, Delaware becomes the first state to ratify the Constitution, doing so by a unanimous vote.

The Delaware Form of Ratification reads

We the deputies of the People of the Delaware State, in Convention met, having taken into our serious consideration the Fœderal Constitution proposed and agreed upon by the Deputies of the United States in a General Convention held at the City of Philadelphia on the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty seven, Have approved, assented to, ratified, and confirmed, and by these Presents, Do, in virtue of the Power and Authority to us given for that purpose, for and in behalf of ourselves and our Constituents, fully, freely, and entirely approve of, assent to, ratify and confirm the said Constitution.
Done in Convention at Dover this seventh day of December in the year aforesaid, and in the year of the Independence of the United States of America the twelfth In Testimony whereof we have hereunto subscribed our Names-
SUSSEX COUNTY
John Ingram John Jones William Moore William Hall Thomas Laws Isaac Cooper Woodman Stockley John Laws Thomas Evans Israel Holland
KENT COUNTY
Nicholas Ridgely Richard Smith George Truitt Richard Bassett James Sykes Allen McLane Daniel Cummins senr.
Joseph Barker Edward White George Manlove
NEW CASTLE COUNTY
Jas. Latimer, President James Black Jno. James Gunning Bedford senr.
Kensey Johns Thomas Wattson Solomon Maxwell Nicholas Way Thomas Duff Gunng Bedford junr.
To all whom these Presents shall come Greeting, I Thomas Collins President of the Delaware State do hereby certify, that the above instrument of writing is a true copy of the original ratification of the Fœderal Constitution by the Convention of the Delaware State, which original ratification is now in my possession. In Testimony whereof I have caused the seal of the Delware State to be hereunto anexed.
Since 1933, the governors of Delaware have proclaimed December 7 as Delaware Day in honor of when Delaware became the first state to ratify the U.S. Constitution, thus making Delaware the first state in the new nation. Delaware also commemorates being the first state to ratify the U.S. Constitution with its license plates which read “The First State.”

The 13th Amendment Was Ratified On This Day in 1865

doc_040_big-1

The 13th Amendment to the United States Constitution was ratified by the states on December 6, 1865. The amendment reads –

Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.
Congress shall have power to enforce this article by appropriate legislation

The 13th Amendment abolished both slavery and involuntary servitude throughout the nation and gave Congress the power to enforce the Amendment by “appropriate legislation.”

At the outset of the Civil War, few could imagine such a revolutionary amendment. In 1861, President Lincoln’s aim during the war was not to disrupt the South’s system of slavery, but instead to reunite the fractured nation.

According to Dr. Abigail Perkiss,

By the summer of 1862, though, with mounting deaths and desertions and declining enlistments of white soldiers, the President reconsidered his position.

By the end of the war, more than 186,000 black men had enlisted in Lincoln’s army, some 134,000 of whom came from slave-holding states.  Some were freed blacks who had made lives for themselves in the South, but many more were slaves who, when troops marched through the Confederacy, took it upon themselves to claim their freedom and sign up for the Union cause.

And as black soldiers entered the military, the relationship between the war and the institution of slavery became more intertwined.  As Lincoln saw it, with the inclusion of African-Americans in the conflict, the fight had become defined by the question of slavery.

On January 1, 1863, President Lincoln issued his Emancipation Proclamation, which read –

By the President of the United States of America:

A Proclamation.

Whereas, on the twentysecond day of September, in the year of our Lord one thousand eight hundred and sixty two, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:

“That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

“That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States.”

Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:

Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. Johns, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South-Carolina, North-Carolina, and Virginia, (except the fortyeight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth-City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.

And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

And I further declare and make known, that such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.

In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the City of Washington, this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and of the Independence of the United States of America the eighty-seventh.

By the President: ABRAHAM LINCOLN

WILLIAM H. SEWARD, Secretary of State.

The proclamation was largely a military gesture, and it only freed slaves in the Confederacy, where Lincoln had no control. And yet, as historian Eric Foner describes, the symbolic proclamation had real effect –

“[N]ever before had so large a number of slaves been declared free. By making the army an agent of emancipation and wedding the goals of Union and abolition, it ensured that northern victory would produce a social transformation in the South and a redefinition of the place of blacks in American life.”

Nearly a year later, in mid-December 1863 Congressman James Ashley of Ohio introduced a bill supporting a federal prohibition on slavery. A month later, in January 1864, Missouri Senator John Henderson submitted a joint resolution for a constitutional amendment.

The Senate, dominated by Republicans, passed the amendment on April 3, 1864, but the amendment languished in the House of Representatives, where many Democrats rallied against the amendment for encroaching on the rights of the states. Because the amendment was not confined in its reach to the federal government, but instead extended to both the states and individual citizens, many Democrats feared it too greatly expanded the powers of the federal government.

The election of 1864 secured Republican majorities in both the House and Senate. And on January 31, 1865, the 13th amendment passed the House by a vote of 119 to 56, seven votes above the needed two-thirds majority vote for a constitutional amendment.

The amendment was then sent to the states for ratification and was ratified on December 6, 1865, when Georgia voted to ratify the Amendment.

And so today we mark the 151st anniversary of the formal abolition of slavery in the United States of America.

 

A Brief History of Thanksgiving

Thanksgiving is an American holiday steeped in tradition – from gathering families for a large feast to breaking the turkey wishbone to watching football or the annual Thanksgiving Day parade.

It is also a holiday with a rich and interesting history, stemming from the New England custom of celebrating a successful harvest, and the Puritan religious tradition of thanksgivings, which combined solemn prayer and feasting.

The Continental Congress declared the first national Thanksgiving in 1777.

FORASMUCH as it is the indispensable Duty of all Men to adore the superintending Providence of Almighty God; to acknowledge with Gratitude their Obligation to him for Benefits received, and to implore such farther Blessings as they stand in Need of: And it having pleased him in his abundant Mercy, not only to continue to us the innumerable Bounties of his common Providence; but also to smile upon us in the Prosecution of a just and necessary War, for the Defense and Establishment of our unalienable Rights and Liberties; particularly in that he hath been pleased, in so great a Measure, to prosper the Means used for the Support of our Troops, and to crown our Arms with most signal success: It is therefore recommended to the legislative or executive Powers of these UNITED STATES to set apart THURSDAY, the eighteenth Day of December next, for SOLEMN THANKSGIVING and PRAISE: That at one Time and with one Voice, the good People may express the grateful Feelings of their Hearts, and consecrate themselves to the Service of their Divine Benefactor; and that, together with their sincere Acknowledgments and Offerings, they may join the penitent Confession of their manifold Sins, whereby they had forfeited every Favor; and their humble and earnest Supplication that it may please GOD through the Merits of JESUS CHRIST, mercifully to forgive and blot them out of Remembrance; That it may please him graciously to afford his Blessing on the Governments of these States respectively, and prosper the public Council of the whole: To inspire our Commanders, both by Land and Sea, and all under them, with that Wisdom and Fortitude which may render them fit Instruments, under the Providence of Almighty GOD, to secure for these United States, the greatest of all human Blessings, INDEPENDENCE and PEACE: That it may please him, to prosper the Trade and Manufactures of the People, and the Labor of the Husbandman, that our Land may yield its Increase: To take Schools and Seminaries of Education, so necessary for cultivating the Principles of true Liberty, Virtue and Piety, under his nurturing Hand; and to prosper the Means of Religion, for the promotion and enlargement of that Kingdom, which consisteth “in Righteousness, Peace and Joy in the Holy Ghost.” And it is further recommended, That servile Labor, and such Recreation, as, though at other Times innocent, may be unbecoming the Purpose of this Appointment, be omitted on so solemn an Occasion.

Presidents Washington, Adams, and Monroe each proclaimed national Thanksgivings, but the custom fell out of use by 1815, leaving individual states to observe the holiday.

Washington’s 1789 Thanksgiving Proclamation stated –

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA – A PROCLAMATION Whereas it is the duty of all Nations to acknowledge the providence of almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor – and Whereas both Houses of Congress have by their joint Committee requested me “to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.” Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these 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 – That we may then all unite in rendering unto him our sincere and humble thanks – for his kind care and protection of the People of this country previous to their becoming a Nation – for the signal and manifold mercies, and the favorable interpositions of his providence, which we experienced in the course and conclusion of the late war –for the great degree of tranquillity, union, and plenty, which we have since enjoyed – for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted, for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us. And also 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 pardon our national and other transgressions – to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually – to render our national government a blessing to all the People, by constantly being a government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed – to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord – To promote the knowledge and practice of true religion and virtue, and the increase of science among them and Us – and generally to grant unto all mankind such a degree of temporal prosperity as he alone knows to be best. Given under my hand at the City of New York the third day of October in the year of our Lord 1789. GO. WASHINGTON.

By the 1850s, almost every state celebrated Thanksgiving in some way. Through the efforts of Sarah Josepha Hale, and later Abraham Lincoln, Thanksgiving became a regularly recognized national holiday.

On October 3, 1863, in the midsts of the Civil War, President Abraham Lincoln issued a proclamation setting aside the last Thursday in November as a national day of thanks, thus setting the precedent for the modern Thanksgiving holiday.

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA – A PROCLAMATION The year that is drawing toward its close has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added which are of so extraordinary a nature that they can not fail to penetrate and soften even the heart which is habitually insensible to the everwatchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign states to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere, except in the theater of military conflict, while that theater has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defense have not arrested the plow, the shuttle, or the ship; the ax has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased notwithstanding the waste that has been made in the camp, the siege, and the battlefield, and the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently, and gratefully acknowledged, as with one heart and one voice, by the whole American people. I do therefore invite my fellow-citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next as a day of thanksgiving and praise to our beneficent Father who dwelleth in the heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners, or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty hand to heal the wounds of the nation and to restore if, as soon as may be consistent with the divine purpose, to the full enjoyment of peace, harmony, tranquillity, and union. In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the city of Washington, this 3d day of October A.D. 1863, and of the Independence of the United States the eighty-eighth. ABRAHAM LINCOLN

Thanksgiving was celebrated on the last Thursday of November for every year from then until 1939, when President Franklin D. Roosevelt moved it up by a week in an attempt to increase holiday retail sales during the Great Depression. This move, known as Franksgiving, was met with much opposition, and, as a result, Congress passed a bill that Roosevelt reluctantly signed into law making Thanksgiving again the fourth Thursday in November.

 

Amending the Constitution: Understanding Article V of the U.S. Constitution

There’s a lot of talk these days about amending the Constitution – whether it’s on the right with calls for a Convention of the States, or from the left with a new effort to abolish the electoral college.

I thought it might be useful to discuss how to amend the Constitution via Article V of the United States Constitution, and to provide a brief history of Article V.

Article V of the U.S. Constitution

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it’s equal Suffrage in the Senate.

Two Ways to Amend the Constitution

Article V provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. Note: none of the 27 amendments to the Constitution have been proposed via the latter process.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).

Note this language in Article V: “[N]o Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it’s equal Suffrage in the Senate.” [Article I, Section 9, Clause 1 prohibits Congress from abolishing the slave trade prior to 1808; Article I, Section 9, Clause 4 reads “No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.]

The Federalist: Explaining Article V

Federalist No. 43 (James Madison)

That useful alterations will be suggested by experience, could not but be foreseen. It was requisite therefore that a mode for introducing them should be provided. The mode preferred by the Convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the general and the state governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other. The exception in favour of the equality of suffrage in the Senate was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the Legislature; and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it.

Federalist No. 49 (James Madison)

The author of the “Notes on the state of Virginia,” quoted in the last paper, has subjoined to that valuable work, the draught of a constitution which had been prepared in order to be laid before a convention expected to be called in 1783 by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking original, comprehensive and accurate; and is the more worthy of attention, as it equally displays a fervent attachment to republican government, and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power, against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present enquiry, ought not to be overlooked.

His proposition is, “that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution or correcting breaches of it, a convention shall be called for the purpose.”

As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived; it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves; who, as the grantors of the commission, can alone declare its true meaning and enforce its observance?

There is certainly great force in this reasoning, and it must be allowed to prove, that a constitutional road to the decision of the people, ought to be marked out, and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits.

In the first place, the provision does not reach the case of a combination of two of the departments against a third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one-third of its members, the remaining department could derive no advantage from this remedial provision. I do not dwell however on this objection, because it may be thought to lie rather against the modification of the principle, than against the principle itself.

In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would in great measure deprive the government of that veneration, which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself is timid and cautious, when left alone; and acquires firmness and confidence, in proportion to the number with which it is associated. When the examples, which fortify opinion, are antient as well as numerous, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws, would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage, to have the prejudices of the community on its side.

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. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honour to the virtue and intelligence of the people of America, it must be confessed, that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the antient government; and whilst no spirit of party, connected with the changes to be made, or the abuses to be reformed, could mingle its leven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended.

But the greatest objection of all is, that the decisions which would probably result from such appeals, would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative, at the expence of the other departments. The appeals to the people therefore would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments, are few in number, and can be personally known to a small part only of the people. The latter by the mode of their appointment, as well as, by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy: And their administration is always liable to be discoloured and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship and of acquaintance, embrace a great proportion of the most influencial part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue.

But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention in short would be composed chiefly of men, who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them.

It might however sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious colouring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of the measure, to which the decision would relate. The passions therefore not the reason, of the public, would sit in judgment. But it is the reason of the public alone that ought to controul and regulate the government. The passions ought to be controuled and regulated by the government.

We found in the last paper that mere declarations in the written constitution, are not sufficient to restrain the several departments within their legal limits. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision, for that purpose. How far the provisions of a different nature contained in the plan above quoted, might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.

Commentaries on the Constitution

Joseph Story in his Commentaries on the Constitution writes –

§ 1821. Upon this subject, little need be said to persuade us, at once, of its utility and importance. It is obvious, that no human government can ever be perfect; and that it is impossible to foresee, or guard against all the exigencies, which may, in different ages, require different adaptations and modifications of powers to suit the various necessities of the people. A government, forever changing and changeable, is, indeed, in a state bordering upon anarchy and confusion. A government, which, in its own organization, provides no means of change, but assumes to be fixed and unalterable, must, after a while, become wholly unsuited to the circumstances of the nation; and it will either degenerate into a despotism, or by the pressure of its inequalities bring on a revolution. It is wise, therefore, in every government, and especially in a republic, to provide means for altering, and improving the fabric of government, as time and experience, or the new phases of human affairs, may render proper, to promote the happiness and safety of the people. The great principle to be sought is to make the changes practicable, but not too easy; to secure due deliberation, and caution; and to follow experience, rather than to open a way for experiments, suggested by mere speculation or theory.

§ 1822. In regard to the constitution of the United States, it is confessedly a new experiment in the history of nations. Its framers were not bold or rash enough to believe, or to pronounce it to be perfect. They made use of the best lights, which they possessed, to form and adjust its parts, and mould its materials. But they knew, that time might develope many defects in its arrangements, and many deficiencies in its powers. They desired, that it might be open to improvement; and under the guidance of the sober judgment and enlightened skill of the country, to be perpetually approaching nearer and nearer to perfection. It was obvious, too, that the means of amendment might avert, or at least have a tendency to avert, the most serious perils, to which confederated republics are liable, and by which all have hitherto been shipwrecked. They knew, that the besetting sin of republics is a restlessness of temperament, and a spirit of discontent at slight evils. They knew the pride and jealousy of state power in confederacies; and they wished to disarm them of their potency, by providing a safe means to break the force, if not wholly to ward off the blows, which would, from time to time, under the garb of patriotism, or a love of the people, be aimed at the constitution. They believed, that the power of amendment was, if one may so say, the safety valve to let off all temporary effervescences and excitements; and the real effective instrument to control and adjust the movements of the machinery, when out of order, or in danger of self-destruction.

§ 1823. Upon the propriety of the power, in some form, there will probably be little controversy. The only question is, whether it is so arranged, as to accomplish its objects in the safest mode; safest for the stability of the government; and safest for the rights and liberties of the people.

§ 1824. Two modes are pointed out, the one at the instance of the government itself, through the instrumentality of congress; the other, at the instance of the states, through the instrumentality of a convention. Congress, whenever two thirds of each house shall concur in the expediency of an amendment, may propose it for adoption. The legislatures of two thirds of the states may require a convention to be called, for the purpose of proposing amendments. In each case, three fourths of the states, either through their legislatures, or conventions, called for the purpose, must concur in every amendment, before it becomes a part of the constitution. That this mode of obtaining amendments is practicable, is abundantly demonstrated by our past experience in the only mode hitherto found necessary, that of amendments proposed by congress. In this mode twelve amendments have already been incorporated into the constitution. The guards, too, against the too hasty exercise of the power, under temporary discontents or excitements, are apparently sufficient. Two thirds of congress, or of the legislatures of the states, must concur in proposing, or requiring amendments to be proposed; and three fourths of the states must ratify them. Time is thus allowed, and ample time, for deliberation, both in proposing and ratifying amendments. They cannot be carried by surprise, or intrigue, or artifice. Indeed, years may elapse before a deliberate judgment may be passed upon them, unless some pressing emergency calls for instant action. An amendment, which has the deliberate judgment of two-thirds of congress, and of three fourths of the states, can scarcely be deemed unsuited to the prosperity, or security of the republic. It must combine as much wisdom and experience in its favour, as ordinarily can belong to the management of any human concerns. In England the supreme power of the nation resides in parliament; and, in a legal sense, it is so omnipotent, that it has authority to change the whole structure of the constitution, without resort to any confirmation of the people. There is, indeed, little danger, that it will so do, as long as the people are fairly represented in it. But still it does, theoretically speaking, possess the power; and it has actually exercised it so far, as to change the succession to the crown, and mould to its will some portions of the internal structure of the constitution.

On This Day in 1789, New Jersey Becomes the First State to Ratify the Bill of Rights

On November 20, 1789, New Jersey becomes the first state to ratify the Bill of Rights. The New Jersey legislators ratified 11 of the 12 amendments drafted by James Madison and approved by Congress. New Jersey rejected Article II, which would have regulated congressional pay raises (note: nearly 203 years later, this amendment was ratified and is now the 27th amendment to the Constitution).

The 12 Amendments proposed to the states in 1789 included:

Art. I. After the first enumeration required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand.

Art. II. No law varying the compensation for services of the senators and representatives shall take effect, until an election of representatives shall have intervened.

Art. III. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Art. IV. 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.

Art. V. No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner prescribed by law.

Art. VI. The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon principal cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Art. VII. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

Art. VIII. In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.

Art. IX. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reëxamined, in any court of the United States, than according to the rules in common law.

Art. X. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Art. XI. The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Art. XII. 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.

Ratification of these 12 amendments required approval by three-fourths of the states. Only 10 amendments (now known as the Bill of Rights) were ratified, when Virginia voted in favor of ratification on December 15, 1791 (now known as Bill of Rights Day).

To learn more about the history of the Bill of Rights, explore the legislative history of the Bill of Rights in the ConSource digital library or check out this recorded conversation between me and historian Carol Berkin on the history of the Bill of Rights at the National Constitution Center.