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upon commercial travelers not residents of that state; was the act
constitutional? What is the Civil Rights bill, and why was it passed? Can
a citizen of any state claim in another state any privileges peculiar to
the state from which he removed?

How is a "fugitive from justice" secured when he has escaped into another
state? Is a governor obliged to surrender an escaped criminal upon demand
of the authorities of the state from which he escaped? How is a criminal
secured if he escapes into another country? Name countries with which we
have _extradition_ treaties. Have we any with Canada?

What were the provisions of the fugitive slave law?

Did the articles of confederation provide for the admission of new states
into the union? Name the first state admitted into the Union. The last.
What territories are now seeking admission into the sisterhood of states?
How does a territory become a state? What advantages are gained by
becoming a state? Is congress bound to admit new states? Can congress
compel a territory to become a state? Can it compel a state to remain a
state? Is there such a thing in our system as _a state out of the Union?_

What does a citizen of the United States lose by moving into a territory?

Does the constitution define a _republican_ government? Is any particular
department charged with the duty of guaranteeing to each state a
republican form of government?

When did the United States protect a state against invasion? Against
domestic violence? Have any states been admitted into the Union more than



_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 a 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;[1] 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;[2] and that no state, without its
consent, shall be deprived of its equal suffrage in the senate.[3]_

[1] No one realized more fully than the framers of the constitution that,
with the best thought which they could give to it, the constitution might
need amending, and therefore they provided ways for proposing and
ratifying amendments.

It is purposely made difficult to amend the constitution because the
fundamental law should not be changed except for weighty reasons. If these
exist, the amendments may be made; the difficulty is not so great as to be

[2] By reading the clauses referred to, the student will readily see whom
this was a concession to.

[3] This was to protect the small states, in whose interest the senate was

The first ten amendments were proposed by congress at its first session in
1789, and they were ratified in 1791.

Two other amendments were proposed at the same time, but they were not
ratified. One of them was to regulate the number of representatives; the
other, to prevent congressmen from increasing their own salaries.

The eleventh amendment was proposed in 1796, and ratified in 1798.

The twelfth amendment, a consequence of the disputed election of 1801, was
proposed in 1803, and ratified in 1804.

An amendment prohibiting citizens of the United States from accepting any
titles, pensions, presents, or other emoluments from any foreign power, on
pain of loss of citizenship, was proposed in 1811, but it was not

An amendment making slavery perpetual was proposed in 1861, in the hope
that this might avert the war, but it was not ratified.

The thirteenth and fourteenth amendments were proposed in 1865 and 1868
respectively, and they were ratified the same years.

The fifteenth amendment was proposed in 1869, and ratified in 1870.

The propositions of amendments have thus far been made by congress, and
all ratifications have been made by the state legislatures.

_Pertinent Questions._

State four ways in which the constitution may be amended. What _temporary_
limitation was placed upon the power to amend the constitution? What
_permanent_ prohibition? How is the English constitution amended? In what
case _must_ congress call a convention to propose amendments? Must the
convention thus called propose any amendments? Which is the better of the
two ways of proposing amendments? When an amendment is proposed by
two-thirds of both houses of congress, is it necessary to secure the
approval of the president? Can a state withdraw its ratification of an
amendment? When is an amendment, once proposed, dead? Did it take
three-fourths of _all_ the states or only three-fourths of the loyal
states to ratify the thirteenth amendment? How many of the disloyal states
finally ratified it? How is the ratification and consequent validity of
any proposed amendment made known?



_Clause 1. - Prior Debts and Engagements._

_All debts contracted and engagements entered into before the adoption of
this constitution, shall be as valid against the United States under this
constitution as under the confederation._

The debts were incurred and the engagements were entered into by the
United States, and changing the _form of government_ would not release the
country from its obligations. The insertion of this provision however,
served as an explicit statement of the purpose of the government to live
up to its engagements.

_Clause 2. - National Supremacy._

_This constitution, and the laws of the United States which shall be made
in pursuance thereof, and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land;
and the judges in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary notwithstanding._

This provision settles definitely, and in what would seem to be
unmistakable terms, the question of supremacy, about which so much
discussion has been carried on. Within its sphere, within the limitations
placed upon it by the constitution itself, the national government has the
supremacy over any and all state governments.

_Clause 3. - Oath of Office._

_The senators and representatives before mentioned, and the members of the
several state legislatures, and all executive and judicial officers, both
of the United States and of the several states, shall be bound by oath or
affirmation, to support this constitution;[1] but no religious test shall
ever be required as a qualification to any office or public trust under
the United States.[2]

[1] The first law passed by congress under the constitution was an act
prescribing the form of the oath required by the provision above. It is as
follows: "I, A. B., do solemnly swear, or affirm (as the case may be),
that I will support the constitution of the United States."

[2] In all other countries at the time of the adoption of this
constitution eligibility to public office was limited to members of the
established church of the country. This constitution set the example of
abolishing religious tests for public office, and the wisdom of this is so
apparent that it has been followed entirely or in part by many of the
civilized nations.



_The ratification of the conventions of nine states shall be sufficient
for the establishment of this constitution between the states so ratifying
the same._

Nine states made two-thirds of the entire number. Eleven states ratified
the constitution within nine months of the time of its submission to them.
As soon as nine states had ratified, congress made arrangements for
putting the new form of government into operation.

The mode of ratification herein specified ignored the existence of the
articles of confederation, and in specifying this mode the convention
disregarded the instructions of the congress which called it. The congress
had expressly provided that the work of the convention should be submitted
to the congress and the state legislatures for approval. But this
provision places the power to ratify in the hands of conventions elected
by the people in the several states, which arrangement is in harmony with
the opening words of the preamble.

_Pertinent Questions._

What is the recognized law of nations in regard to the payment of the
debts of a nation when it changes its form of government? If England
should become a republic would this rule apply? Does it apply when a
territory becomes a state? Were the debts of the confederation paid? How?
What was the amount of the debt of the United States at the time of the
adoption of the constitution? What is the value of the notes and bonds of
the "Confederate States of America"? Why?

Which is sovereign, the nation or the individual states? Where else are
there any provisions which teach the same thing? Why should _judges_ be
specially mentioned in VI. 2? What department of the government makes
treaties? Are they binding upon the other departments? Upon the several
states? Can a state nullify an act of congress? Has any state ever tried
to do so?

Why are _state_ officers bound to support the constitution of the _United
States_? Is the requirement to take the "oath of office" a religious test?
Why is the choice of oath or affirmation given? What was the iron-clad

Would the ratification of the constitution by nine states have made it
binding upon the other four? The articles of confederation required the
consent of all the states to any amendment to them; by what right was this
constitution adopted against the wishes of Rhode Island and North
Carolina? If those two states had persisted in their refusal to ratify the
constitution, what would have been their relations to the United States?
Justify your answer.



We have now considered the constitution about as it was presented to the
states for ratification. Judging by our own affection for the noble
instrument we would expect to learn that it was ratified promptly and
unanimously. But, as a matter of fact, much hard work was required on the
part of its friends to secure its ratification. Its every provision had to
be explained and justified. Probably the most able exposition was made by
Hamilton, Madison and Jay, in a series of papers entitled, "The

One of the greatest objections urged against the constitution was that it
did not guarantee sufficiently the rights of individuals. It will be
remembered in this connection that the principal grievance against
England, as expressed in the Declaration of Independence, was that
personal rights had not been respected; and that, in consequence, the
first form of government organized after independence, The Articles of
Confederation, gave the general government no power to reach individuals.
Experience showed this to have been a mistake, and the constitution
authorizes the general government to execute its laws directly, enabling
it to hold individuals responsible. On account of this re-enlargement of
power, many people honestly feared that the new government might trespass
upon personal rights as England had done. And several states at the time
of ratifying suggested the propriety of so amending the constitution as to
remove these fears.

In accordance with these recommendations, amendments were proposed at the
first session of congress. The house of representatives proposed
seventeen, to twelve of which the senate agreed. Only ten, however, were
ratified by the legislatures of three-fourths of the states. They are, of
course, the first ten among those that follow. It was decided by the same
congress that the amendments should not be incorporated into the main body
of the constitution, but should be appended to it as distinct articles.
They have, however, the same force as the original constitution.



_Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof;[1] or abridging the freedom of
speech or of the press;[2] or the right of the people peaceably to
assemble and to petition the government for a redress or grievances.[3]_

[1] The chief purpose for which many of the early settlers came to America
was that they might "worship God according to the dictates of their own
conscience." Hence their descendants put _first_ among the individual
rights to be protected, this freedom of religion. But this provision does
not authorize any one to commit crime in the name of religion.

[2] The only limitation upon speech in this country is that the rights of
others be respected. Any one may think as he pleases upon any subject, and
may freely express his opinion, provided that in doing so he does not
trespass upon the rights of others.

[3] It would seem that under a republican form of government this right
might be assumed to be secure. The provision is meant to "make assurance
doubly sure." History had shown the necessity of such precaution.



_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._

It should not be the policy of a republic to keep a large standing army.
An army is expensive, it takes so many men from productive industries, and
it is dangerous to liberty - it may from its training become the instrument
of tyranny.

But a republic must have defenders against foes foreign or domestic. A
well-trained militia may be depended upon to fight with valor against a
foreign foe, and may at the same time serve as a check upon usurpation.

For definition of _militia_, see page 162.



_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 to be described
by law._

To "quarter" soldiers in any house is to allot them to it for food and

This, it will be remembered, was one of the grievances of the colonies.
This quartering of soldiers had been, and indeed is in some countries to
this day, a mode of watching and worrying persons for whom officers of the
government entertained suspicion or ill will.



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

This, as well as the preceding provision, recognizes the maxim, "A man's
house is his castle." It prevents the issuance of general warrants.



_No person shall be held to answer for a capital or otherwise infamous
crime unless on a presentment or indictment of a grand jury,[1] 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;[2] nor shall any person
be subject for the same offense to be twice put in jeopardy of life or
limb;[3] nor shall be compelled in any criminal case to be a witness
against himself,[4] nor be deprived of life, liberty, or property, without
due process of law;[5] nor shall private property be taken for public use
without just compensation.[6]

[1] For information in regard to the method of conducting criminal trials,
see Division I.

[2] The necessity here for prompt and exact obedience to orders is so
urgent, that summary methods of trial must be permitted.

For information regarding trial by court martial, see appendix, page 338.

[3] That is, when a jury has rendered its verdict and judgment has been
pronounced, the accused cannot be compelled to submit to another trial on
the same charge. But if the jury disagrees and fails to bring in a
verdict, he may be tried again.

[4] Accused persons used to be tortured for the purpose of extorting from
them a confession of guilt.

[5] In a despotism, the lives, liberty and property of the people are at
the command of the ruler, subject to his whim. [6] For an illustration
of the method of securing private property for public use, see page 18.



_In all criminal prosecutions the accused shall enjoy the right to a
speedy[1] and public[2] trial by an impartial jury[3] of the state and
district wherein the crime shall have been committed, which district shall
have been previously ascertained by law,[4] and to be informed of the
nature and cause of the accusation;[5] to be confronted with the witnesses
against him;[6] to have compulsory process for obtaining witnesses in his
favor;[7] and to have the assistance of counsel for his defense.[8]_

The importance of this provision is likely to be underestimated. Says
Montesquieu, "Liberty consists in security. This security is never more
attacked than in public and private accusations. It is, therefore, upon
the excellence of the criminal laws that chiefly the liberty of the
citizen depends." And Lieber, in his very able work on Civil Liberty and
Self-Government, says, "A sound penal trial is invariably one of the last
fruits of political civilization, partly because it is one of the most
difficult of subjects to elaborate, and because it requires long
experience to find the proper mean between a due protection of the
indicted person and an equally due protection of society.... It is one of
the most difficult things in all spheres of action to induce irritated
power to limit itself."

Besides the guarantees of the constitution, Lieber mentions the following
as characteristic of a sound penal trial: the person to be tried must be
present (and, of course, living); every man must be held innocent until
proved otherwise; the indictment must be definite, and the prisoner must
be allowed reasonable time to prepare his defense; the trial must be oral;
there must be well-considered law of evidence, which must exclude hearsay
evidence; the judge must refrain from cross-examining witnesses; the
verdict must be upon the evidence alone, and it must be _guilty_ or _not
guilty;_ [Footnote: In some countries the verdict may leave a stigma upon
an accused person, against whom guilt cannot be proven. Of this nature was
the old verdict, "_not proven._"] the punishment must be in proportion to
the offense, and in accordance with common sense and justice; and there
must be no injudicious pardoning power, which is a direct interference
with the true government of law.

Most, if not all but the last, of the points mentioned by Dr. Lieber are
covered by that rich inheritance which we have from England, that
unwritten constitution, the common law. The question of how best to
regulate the pardoning power is still unsettled.

[1] He may have his trial at the next term of court, which is never very
remote. But the accused may, at his own request, have his trial postponed.

[2] Publicity is secured by the keeping of official records to which all
may have access, by having an oral trial, by the admission of spectators
to the court room, and by publication of the proceedings in the

[3] For the mode of securing the "impartial jury," see page 63.

[4] It is provided in the body of the constitution (III., 2, 3,) that
criminal trial shall be by jury, and in the state where the crime was
committed. This amendment makes the further limitation that the trial
shall be in the _district_ where the crime was committed, so a person
accused of crime cannot be put to the trouble and expense of transporting
witnesses a great distance.

[5] The nature of the accusation is specified in the _warrant_ and in the
indictment, both of which, or certified copies of them, the accused has a
right to see.

[6] Not only do the witnesses give their evidence in the presence of the
accused, but he has also the right to cross-examine them.

[7] But for this "compulsory process" (_called a subpoena_), persons
entirely guiltless might be unable to produce evidence in their own
behalf. The natural desire of people to "keep out of trouble" would keep
some knowing the circumstances of the case from giving their testimony,
and others would be afraid to speak up for one under a cloud and with all
the power of the government arrayed against him.

[8] The accused may plead his own cause, or he may engage a lawyer to do
it for him. If he is too poor to employ counsel, the judge appoints a
lawyer to defend him, whose services are paid for out of the public

From the foregoing, it will be seen that great care is exercised to give a
person accused of crime full opportunity to defend himself. And it must be
remembered in this connection that it is a principle of our jurisprudence
that _the burden of proof lies upon the government_. That is, the accused
is to be deemed innocent until he is _proved_ guilty. We prefer that a
number of guilty persons should escape punishment rather than that one
innocent person should suffer.



_In suits at common law,[1] where the amount 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 re-examined in any court of the United
States, than according to the rules of common law.[2]_

[1] The meaning of this expression is difficult of explanation, but it
covers most ordinary lawsuits. From the fact that a jury in criminal cases
has already been guaranteed (III., 2, 3, and Am. VI.), it may be assumed
that this provision is intended to cover civil suits.

[2] Among the "rules of common law" are these: 1. All suits are tried
before a judge and a jury, the jury determining the _facts_ in the case
and the judge applying the _law_. 2. The facts tried by a jury can be
re-examined only by means of a new trial before the same court or one of
the same jurisdiction.

The purpose of this provision is to preserve the jury trial as a real
defense against governmental oppression. In the Supreme Court there is no
jury; the trials are by the court. If questions of _fact_ could be
reviewed or re-examined by such a court on appeal the protection now given
by the jury would be nullified.



_Excessive bail shall not he required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted._

Having enjoyed the protection of this and similar provisions for so many
years, we can hardly appreciate their value. It must be borne in mind that
those who "ordained and established" the constitution had been abused in
just these ways, and that in this provision they provided against a real



_The enumeration in the constitution of certain rights shall not be
construed to deny or disparage others retained by the people._

Certain rights which governments are prone to trample on have been
mentioned in the preceding provisions. But not all of the personal rights
could be enumerated. Hence this provision covering those unnamed.



_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._

This provision gives a rule for interpreting the constitution. "It is
important as a security against two opposite tendencies of opinion, each
of which is equally subversive of the true import of the constitution. The
one is to _imply_ all powers, which may be useful to the national
government, which are not _expressly prohibited;_ and the other is, to
_deny_ all powers to the national government which are not _expressly
granted_." [Footnote: Story] The United States is "a government of limited
powers," and has only such implied powers as are necessary to carry out
the express powers. On the other hand, a state has all powers not denied

Online LibraryJames T. McClearyStudies in Civics → online text (page 16 of 31)