The United States Constitution and Anglo-American Constitutionalism

Summer 2012 Talks Responding to the Bicentennial of the War of 1812

George Anastaplo

I wish I were as in the years of old,
While yet the blessed daylight made itself
Ruddy thro’ both the roofs of sight, and woke
These eyes, now dull, but then so keen to seek
The meanings ambush’d under all they saw,
The flight of birds, the flame of sacrifice,
What omens may foreshadow fate to man
And woman, and the secret of the Gods.
‒Alfred Lord Tennyson, “Tiresias”

Table of Contents

  1. Prologue………………………………………………………………………………………………….1
  2. Conspiracies about Conspiracies: One September Eleventh Aftermath…………3
  3. A Celebration of Three Constitutional Law Teachers………………………..……….10
  4. The Confederate Constitution of 1861 as an Instrument of “Reform”…………..17
  5. American Slaves and the Declaration of Independence………………………………27
  6. Freedom of Speech and the American Character……………………………………….35
  7. Epilogue………………………………………………………………………………………………..42

A. PROLOGUE

The Bicentennial of the War of 1812 is upon us, a far-ranging struggle described in this fashion by Webster’s New Explorer Desk Encyclopedia:

U.S.-British conflict arising from U.S. grievances over oppressive British maritime practices in the Napoleonic Wars. To enforce its blockade of French ports, the British boarded U.S. and other neutral ships to check cargo they suspected was being sent to France. The U.S. reacted by passing the Embargo Act (1807); Congress’s War Hawks called for expulsion of the British from Canada to ensure frontier scrutiny. When the U.S. demanded an end to the interference, Britain refused, and the U.S. declared war on June 18, 1812. Despite early U.S. naval victories, notably that of the Constitution, Britain maintained its blockade of Eastern U.S. ports. A British force burned public buildings in Washington, D.C., including the White House, in retaliation for similar U.S. acts in York (Toronto), Canada. The war became increasingly unpopular, especially in New England (see Hartford Convention). The Treaty of Ghent (Dec. 24, 1814) essentially restored territories claimed by each side. Before news of the treaty reached the U.S., it won a major victory in the Battle of New Orleans ….

It is said that this war was promoted far more in the United States by Southerners than by New Englanders, a political stronghold then of the Federalist Party. It is also said that New Englanders (who even threatened Secession from time to time, as Southerners were later to do) saw the war as designed to advance Slavery interests in the United States, interests dramatically served by the much-criticized Constitutional provision permitting slaves to be counted for three-fifths of their numbers in the populations of the Slave States for national electoral purposes.

The War of 1812 can be said to have confirmed “forever” the existence not only of the United States but also of a separate Canada, even as prospects for an autonomous Indian territory in North America steadily declined. Canada could be dramatized thereafter (as it was, decades later, in Uncle Tom’s Cabin) as a reliable refuge for fugitive slaves from the American South, a development anticipated during the 1812-1814 war in which the British encouraged slaves to join them. Thus, Canada served as a noble reminder of the tension between American slavery and the constitutionalism of the English-speaking peoples (confirmed by the 1772 ruling in Somerset v. Stewart).

The slavery-related controversy, temporarily quieted by the Missouri Compromise of 1820, could make Americans wonder how long their Country would remain united (a question that could even have been illuminated by the War of 1812 song that eventually became the National Anthem, a song that dramatized the “still there” Flag as “star-spangled,” with how many permanent stars in it yet to be determined). Critical to the pre-Civil War controversy was how the Constitution was to be understood, to which the precursors of our current “conspiracy-minded” theorists contributed—the ever-recurring controversy as to how a serious text is to be read. Also critical is the question of what character in a people is needed to make our Constitutional system “work,” a system that depends on (among other things) a vital sense of proportion in anticipating, identifying and dealing with the threats that may confront (and even entice) us from time to time (which is one of several questions addressed in the five Summer 2012 talks that follow).

[The remarks in this Prologue were prepared for George Anastaplo’s September 24, 2012 Seminar on Constitutional Law, Loyola School of Law, Chicago, Illinois.]

B. CONSPIRACIES ABOUT CONSPIRACIES: ONE SEPTEMBER ELEVENTH AFTERMATH

I.

                  Questions have been raised across centuries, among the English-speaking peoples, about the use of conspiracy in the criminal law. The Oxford Classical Dictionary can define conspiracy as

A combination of persons for an evil or unlawful purpose; an agreement between two or more persons to do something criminal, illegal, or reprehensible (especially in relation to treason, sedition, or murder…)

Thus, the very notion of conspiracy conjures up the most serious offenses against the community, even threatening its very existence.

When conspiracy counts are available indictments can be unusually far-ranging. One may be considered accountable even for motives and actions of which one had never been personally aware. Various kinds of otherwise seemingly innocent associations may thereby be discouraged as well perhaps as any somehow-related opinions.

The complexities of alleged (if not even ominous) associations can intimidate juries. Even veteran judges may find it difficult to examine properly the elaborate tales conjured up by zealous prosecutors. The prosecutors themselves, like inspired poets, can sometimes be moved to surpass their original expectations about the evil they are condemning.

II.

                  Governments, too, can find themselves challenged by the scenarios conjured up about what is happening elsewhere. Espionage has to be both promoted and guarded against. In short, it can be quite a challenge to determine “what is really going on.”

Particularly harmful can be the dubious assessments of what “the others” are doing—or may possibly do. This can lead to dangerous, or at least to quite wasteful, responses to what is believed to be going on, or is about to go on, elsewhere. A current concern can be with the weaponry that dubious regimes around the world may think of developing or acquiring.

Such a concern, about an ominous development of Weapons of Mass Destruction, contributed, it seems, to a promotion of the ill-fated Iraqi Intervention of 2003 by the United States. Earlier, comparable preemptive efforts against the Soviet Union had been urged from time to time in the United States. Such dangerous fearfulness among us may have even had, as one of its unintended consequences, the perpetuation of the Soviet tyranny for at least a decade longer than it might have endured on its own.

III.

                  Also questionable are the unofficial conspiracy theories among us. Of course, much of such talk may be protected by the First Amendment. Of course, also, such immunity does not keep it from being dubious, if not even quite harmful.

Particularly dramatic during the past decade has been the insistence by some analysts that the World Trade Center buildings were not really brought down by the two commercial airlines that were flown into them. Explosives, it is insisted by self-proclaimed experts, had been planted in those buildings (well before September 11, 2001) and somehow programmed to go off when the two airliners struck. This has encouraged, among those intrigued by such assertions, sometimes wild speculations about who was really responsible for those dreadful attacks.

We may be obliged to be dubious about people who persist in apparently outlandish speculations despite what seem to be sound refutations. But far more significant than the aberrations that imaginative individuals may enjoy indulging in is what is revealed here about the condition of our civic morale. Are there symptoms here of a breakdown of that discipline which a self-confident community with a reliable “mind of its own” would tend to exercise?

IV.

                  I do not want to seem to be discouraging imaginative concerns on the part of citizens. Consider, for example, my own three quite short letters (by both FAX and regular mail) to the Federal Bureau of Investigation during the week of the September Eleventh attacks. The first was the day after (September 12, 2001):

Permit me to make a suggestion about your inquiry related to the hijacking of the four commercial airliners, a suggestion which your Bureau has probably already considered. But I offer it, just in case it has not been thought of. It seems to me possible that additional planes may have been targeted by the group responsible for the hijacking yesterday—but, for one reason or another, those planes were not used. I would check, therefore, to see what planes from the same airports of origin (or nearby), and about the same time, might have been cancelled. The prospective passenger list for those planes could then be checked carefully. I would also check similar planes, which did fly—planes which had three or four or five men fail to make the flight (because of an accident en route, or second thoughts, or whatever). This line of inquiry might possible turn up names of people who did survive the plot and who might be readily available in this country.

     My second letter was the next day (September 13, 2001):

I should like to add to the suggestions I made yesterday about your hijacking inquiry. Again, I suspect that you have already thought of this. The records of American and United Airlines might usefully be checked to discover who had, at any time, made reservations on the four fatal flights—and what the circumstances were of those who, for any reason, did not fly on those planes last Tuesday morning. In short, is it not highly unlikely that everyone who was ever part of the group destined for Tuesday’s missions actually ended up on one of the four fatal flights?

That I received no response to any of these letters was no surprise. The relevant government agencies must have been inundated by all kinds of suggestions from somewhat presumptuous well-wishers at home and abroad.

My third letter was sent on September 17, 2001:

I supplement hereby my memoranda to you of September 12 and 13 about the inquiry related to the hijacking last week of the four commercial airlines. Again, I suspect that you have anticipated the following suggestions: The records of American and United Airlines might usefully be checked to discover who, in recent months, made reservations for or flown on the same flights which eventually proved to be fatal flights. It is possible, that is, that “test runs” were made to see how things were done on those flights. It is also possible that not all those involved in the plot who can be identified as having been on the “test runs” were also on the fatal flights—and those additional passengers might be worth talking with. In addition, innocent passengers on those “test runs” might have noticed odd conduct worth looking into. I continue to believe that various people might have indicated, before last week, their involvement in this sad matter.

My only other somewhat public statement that week was on September 12, 2001 to a law school audience, a talk entitled, “A Second Pearl Harbor? Let’s Be Serious.” That talk included these observations:

Repeated comparisons were made yesterday to the 1941 Pearl Harbor attack. There was something of the surprise of Pearl Harbor, with evidently even more casualties this time. But much of our Pacific Fleet was lost at Pearl Harbor, and the country seemed to be seriously weakened in the short-term as it faced an enemy with substantial resources, an enemy whose principal ally had already conquered much of Europe. That was hardly the situation yesterday, however distressed and infuriated our responses were bound to be because of the malice exhibited by the attackers and by the massive damage suffered. It is not surprising, in any event, that the afflictions of the moment are dramatized, especially when we are inundated by the views of images provided us by our electronic media.

V.

                   What is presupposed in my three letters of September 2001? The “Government,” I suggested, knew more, or at least could know much more, than it might have realized. Perhaps, however, it had immediately done all I had suggested, and much more along those very lines that could never have occurred to me.

                  It should be evident in such “situations” that imagination and intelligence are needed. That is, disciplined thinking is called for. Such thinking should try to exploit the inevitable limitations both of any conspiratorial plan and of its execution.

“Disciplined thinking” should be distinguished here from the sort of manipulation that all too many popular conspiracy-crafters and their accomplices (the more gullible members of the general public) indulge in. Should it not be recognized that startling innovations after thorough investigations (public and private) are quite apt to be unwarranted?  Much is to be said, that is, for the long-established principles and the reasoned conclusions of a stable community, especially where public discourse has tended to be fairly free.

VI.

                  No doubt, as I have indicated, the voluminous September Eleventh “literature” includes accounts of inquiries far more extensive and detailed than those I suggest in my three letters to the Federal Bureau of Investigation. Indeed, the official recipients of such letters may even be reminded of how limited the general public is in its recognition of what makes things “work” as they do in everyday life. Catastrophes may expose to general view only a little of what is likely to be behind the scenes that we routinely have to rely on.

The shock of catastrophes can move some to find more meaning in a debacle than is really available. That shock can also stimulate the imagination of the conspiracy-minded among observers. Their effort may be affected, at least in part, by the desire to make disasters more meaningful than (sad to say) they are likely to be.

We see here factors that can help account for some of the bizarre religions that communities have been subjected by. The massive human sacrifices routinely relied on by the Aztecs come to mind. What, we may well wonder, was the perceived cosmic conspiracy that those people were desperately attempting to cope with?

VII.

                  We will probably never know precisely how the Aztecs came to be trapped as they evidently were for generations. Chance, in the form of a powerful demented leader during a critical crisis, may have played a role in crippling the Aztecs “forever.” Indeed, their circumstances might once have been such that they could even have been driven to identify a grotesque imposition as a cherished liberation, perhaps somewhat as Europeans on the other side of the Atlantic were then doing with their dreadful witch-hunts.

The possible role of chance may be wondered about as well with respect to the questions posed in my three September 2001 letters to the Federal Bureau of Investigation. Did all of the hijacking contingents show up and then go “forward” as planned? What accounted for whatever differences there were, for example, in the sizes of the four contingents of suicide-bent passengers that have been identified?

And how did chance bear on what happened to the planes that ended up that day in Pennsylvania and in Washington, D.C.? Did the personnel in each of the four known suicide-contingents vary enough to make a difference in what each was able to do? Indeed, there have even been reports which suggest that not all of the men in those four contingents knew, from the outset of their respective flights, that they were indeed embarked on suicide missions.

VIII.

                  My three September 2001 letters suggested how additional, perhaps useful, information could be readily secured about the overall hijacking enterprise on that fateful occasion. But the costs of gathering other, perhaps even more useful, information about such matters may be excessive. This may be suspected about the elaborate domestic security system that we have had to become accustomed to during the past decade.

This is dramatically evident these days at our commercial airports, even though we have long been assured that forcible entry into airliner cockpits by passengers has been made so difficult that no hijackers can now count on taking over an airliner in order to convert it into a manned missile. A remarkable wastefulness by the Authorities may also be seen in the security measures routinely employed these days for screening visitors to government buildings. This kind of determined apprehensiveness is hardly edifying.

Nor is it a sensible use of the vast resources now allocated in this Country to “security.” All this is at a time when we have become accustomed to a dozen homicides a week in Chicago. At this rate, there can be in Chicago alone as many homicides in six years as there were at the World Trade Center on September 1, 2001.

IX.

                  Our remarkable indulgence as a community in ever-more security measures is somewhat in the spirit of the more notorious “conspiracy buffs” of recent decades. All kinds of fantasies are indulged in, if not even enjoyed. The most persistent (aside from those associated with certain [not all] religious inheritances) may be the cycle of UFO-spottings to which we are alerted from time to time.

Far more troubling, of course, were the fantasies that moved the September Eleventh hijackers themselves and their Masters. How have such “martyrs” come to be regarded by Islamic Opinion worldwide? Are there disturbing indications provided here of what can be expected during the next half-century among the now-much-disturbed heirs of that remarkable Islamic civilization which could once be treasured by thoughtful human beings everywhere?

Critical to how dreadful challenges should be understood and dealt with is, of course, the virtue of prudence. A sense of proportion is called for in assessing the responses that are likely to be both effective and seemly in dealing with the threatening conspiracies that may indeed be conjured up. Particularly to be guarded against here may be an excessive, not properly disciplined, use of the imagination by “the good guys” among us.

[These remarks about conspiracy-theories were prepared for a July 16, 2012 meeting of a Mathor LifeWays  Senior Citizens Forum in Chicago, Illinois.]

C. A CELEBRATION OF THREE CONSTITUTIONAL LAW TEACHERS

I.

Four decades ago, Malcolm P. Sharp, one of my University of Chicago Law School teachers, published (in a University of Chicago Law School journal) an article, “Crosskey, Anastaplo and Meiklejohn on the United States Constitution” (posted now on anastaplo.wordpress). Alexander Meiklejohn, who studied the First Amendment, had been a college teacher of Malcolm Sharp; William W. Crosskey, who studied the Constitution of the United States, had been a faculty colleague of Mr. Sharp. I had published by then The Constitutionalist: Notes on the First Amendment (1971; reprinted, 2005).

My book obviously drew in many ways upon the work of all three of these scholars. Even so, Mr. Sharp did notice in his article, “Mr. Anastaplo reminds us of the guiding significance of the constitutional guaranty of a Republican Form of Government for the States.” We will notice in turn that this guaranty also implicitly shapes the General Government decreed by the Constitution.

We should also notice that all of the General Government has a duty to “guarantee to every State in this Union a Republican Form of Government.” It seems to be anticipated that what republican is would be generally recognizable. It is rather curious, therefore, that the Republican Form of Government Guaranty in the Constitution of 1787 has rarely been invoked by any branch of the General Government.

II.

Should we not believe that the Republican Form of Government Guaranty suggests something as well about the character of the General Government? That is, is it not also expected to be republican in character? Indeed, may not the General Government even provide guidance as to the essential features of republicanism that all of the States should exhibit?

Almost as neglected as the Republican Form of Government Guaranty, it can sometimes seem, is the Ninth Amendment. It is provided there, once the variety of rights that make up the Bill of Rights had been set forth in the preceding eight amendments as well as in the body of the Constitution, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Is it not recognized thereby that there are rights (of at least the English-speaking peoples) that exist independent of any recent or periodic affirmation?

Perhaps the most dramatic, if not even the most critical, of such unenumerated rights had been one that had been recently invoked, the Right of Revolution. It is not explicitly recognized in the Constitution of 1787. But it can be said to have been implicitly recognized there even in the dating of the Constitution (“…the Seventeenth Day of September in the Year of our Lord…and of the Independence of the United States of America the Twelfth…”).

III.

A related right (reminding citizens of an openness to constant reconsideration of fundamentals) is the right to that “freedom of speech, or of the press” protected by the First Amendment against “abridg[ment].” It had been abundantly exercised, of course, in the debates that led to the decision to separate from Great Britain. The concern had been lest Congress abridge that right, not so much (it seems) the other two branches of the General Government.

Other safeguards (in the Constitution of 1787 and in the Bill of Rights of 1791) seem to anticipate abuses more from other branches of the General Government. Thus, there is the provision in Article I, Section 8 of the Constitution that “no Appropriation [by Congress] of Money to [the] Use [of raising and supporting Armies] shall be for a longer Term than two Years.” This seems to place limits on the power of the Executive, drawing on recollections of how English monarchs had abused at home their traditional control of the army.

Thus, also, the limitations upon treason prosecutions are placed in the Judicial Article. This seems to recall the notorious abuses of treason prosecutions at the hands of judges in Great Britain from time to time. That “treason” should be properly hedged in must have seemed especially apparent to many in the Constitutional Convention who had, a decade earlier, been routinely condemned as traitors by the British government.

IV.

Various elements of “a Republican Form of Government” had been inherited in this Country from the British. Of course, significant modifications had to be made in that inheritance, beginning perhaps with the nullification of any inherited titles or powers. Related to this is the explicit provision for the way that any veto of one of its bills by the Executive may be overridden by Congress.

Already there were in Britain as well developments that would see, in the coming decades, ever-growing control of its own national government by an elected House of Commons. It should be remembered that when the Colonists formulated in 1776 their grievances in the Declaration of Independence, it was only by indirection that Acts of the House of Commons were criticized. Even then, that is, the emphasis remained (for rhetorical purposes?)  upon the tyrannical king who was said to have “combined with others” (that is, the legislators) to impose upon the Colonists the measures that really got the Revolution going.

We have noticed that the Ninth Amendment recognized rights long considered part of the heritage of the English-speaking peoples. Such rights had been dramatically affirmed in the English Bill of Rights of 1689, not long after the decisive moves had been made against Charles I which profoundly altered “forever” the status and power of royalty in Britain. Then, of course, there was always Magna Carta serving to remind one and all that there were limits to the powers that rulers may be tempted to claim.

V.

Professor Sharp, in his assessment of the work of Alexander Meiklejohn, reminds us of the importance in the American System of the Speech and Press elements in the First Amendment. It had probably not been expected by Congress, when it offered in 1789 a dozen amendments for ratification by the States, that the provision we know as the First Amendment (originally the third in the list) would eventually head the twenty-seven amendments we now have. But it is generally sensed that its designation (as “First”) is indeed appropriate.

It is not generally appreciated, however, how much (and in what ways) the Freedom of Speech provision of the First Amendment is grounded in the parliamentary privilege of freedom of speech. It was appropriate, once “We, the People” came to be recognized as sovereign in this Country, that that people should have, for the discussion by them of the public business, the discussion-related prerogatives of that sovereign body, the Parliament of Great Britain. The “freedom of the press” addition to the First Amendment extends to the Press the longstanding protection in England against Prior Restraint upon (or Censorship of) publications.

If the Parliamentary Privilege should be recognized as the primary source of a Countrywide freedom of speech, it should also be recognized that the immunity here applies primarily to political discourse –that is, to public discussions of a self-governing people. Appropriate restrictions (with a view to keeping a debate healthy and relevant) can be placed upon the language used, upon the resources supplied to influence public opinion, and upon other developments that can affect the caliber of public deliberation. The restrictions resorted to here may be subject, of course, to Due Process and Equal Protection standards, independent of the obvious concerns of the Speech and Press provisions of the First Amendment.

VI.

Professor Sharp, in his assessment of the work of William W. Crosskey, reminds us of his learned colleague’s insistence upon a national government with plenary powers, subject to whatever limited restrictions there may be in the Constitution of 1787. Particularly critical to the Crosskeyan scheme of things is that the General Government be able to do with the economy of the Country whatever may be deemed not only necessary but obviously useful for the General Welfare. It is hardly likely that men as astute as the Framers of the Constitution have always been recognized to have been could have supposed that the United States could prosper if its national government, alone of all governments worldwide, would be unable to deal with vital economic and social matters that obviously affect the Country as a whole.

This is not to suggest that the governments of the States would be insignificant. Many social problems, down to this day, tend to be largely local in their reach and causes. The Government of the United States should not be expected to deal routinely and effectively with problems that are obviously local in their origins and effects.

Even if there had not been local governments already in place upon the founding of the United States in 1776, the General Government would have had to establish agencies to deal with a variety of local problems. These would have been bureaucracies hard for a central government to supervise. It is far better, given the general sensibleness of the People of this Country, that local problems be handled primarily by officials chosen by local people, however subject they should be to overall supervision by the General Government.

VII.

It could have been reasonably expected, in 1787, that the People in this Country (both at large and in their localities) would be able to manage the problems that would confront them, much as their “cousins” in Britain had long been able to do. Where the British had gone woefully wrong was in not having dealt sensibly with a people largely derived from them but living across the Atlantic Ocean. Something of such crippling separation may be seen in the problems confronting Americans among themselves already in 1787.

That is, chance provided, in the system of slavery that burdened much of the Country from the beginning, a severe limitation upon comprehensive self-government in the long run. Especially was this so when vital to the American regime, from its inception, had had to be the recognition that “all Men are created equal.” It is evident in several places in the Constitution of 1787 that the slaves who must be provided for one way or another were regarded as human beings, however depressed their status “had” to be.

The British (including, in turn, the Canadians) had been fortunate in having had proclaimed for them the anti-slavery principles drawn on in Somerset v. Stewart (1772). Early Americans made attempts in that direction, as may be seen in how grudging the accommodations to slavery were in the Constitution of 1787. This was reinforced by what was done by the Articles of Confederation Congress in New York City (even while the Constitution was being drafted in Philadelphia), with its promulgation of the Northwest Ordinance of 1787, which forbade slavery in perpetuity in the five States to be formed from what was then the principal territory of the newly-independent United States.

VIII.

However entrenched slavery could sometimes seem to be in the United States, nationwide standards were available from the Beginning that left slavery under a cloud for thoughtful citizens everywhere. It could be hoped by some, of course, that slavery had been placed by the Founders, from the outset, “in the course of ultimate extinction.” This is the way that Abraham Lincoln, among others, would insist upon assessing it.

The standards that tended to make slavery widely suspect included the common sense and the principles of justice routinely drawn on by Common Law judges and lawyers. Lord Mansfield, a great commercial judge, made it clear in Somerset that slavery could be sustained, however reluctantly, only by statutory enactments. The presumptions of the English system of law, he indicated, were markedly against any reception of slavery.

Professor Crosskey, it should be remembered, was disturbed by what the United States Supreme Court had long done in insisting upon a general power of judicial review of Acts of Congress for their constitutionality. Also disturbing for him was what the Court had done, in Erie Railroad Company v. Tompkins (1938), in abdicating its supervisory role as the ultimate arbiter of common law issues in this Country, and as such able to draw, as it did so (as a most learned Justice Joseph Story had done in Swift v. Tyson [1840]), upon thoughtful rulings anywhere in the world. Such rulings tended to recognize universal standards somehow grounded in nature, standards which could be sensibly adapted to the circumstances of various peoples.

IX.

Thus, the United States Supreme Court has abandoned for itself the longstanding common law duty and power once recognized by the leading judicial authorities among the English-speaking peoples. Instead, it has claimed, in the exercise of routine judicial review of Acts of Congress for their constitutionality, unprecedented powers (not explicitly provided for in the Constitution of 1787) that tend to be legislative in character. Insofar as this power is legislative in effect, it is a power (very much grounded in politics) that judges are ill-equipped to exercise responsibly (as was seen in the first truly serious exercise of this power, that in the Dred Scott Case of 1857).

Also disturbing is that the Congress of the United States has allowed its legislative prerogatives to be usurped in this fashion. The Senate has gone even further, routinely acquiescing in a so-called Filibuster Rule, which tends to subvert majority rule in that body. There is thus improperly added, in effect, a “super-majority” requirement not among the few such provided for by the Constitution of 1787.

Even more disturbing perhaps is the sadly presumptuous conduct of the Executive, which includes dispensing (since December 1941) with the Congressional declarations of war required by the Constitution. Such Executive usurpations have been dramatized recently by the growing practice of the Presidential issuance of warrants for the execution, more and more by “drones” far from any recognized battlefield, of suspected enemy terrorist-leaders –and all this without indictments, trials or (in many instances) even public notices. We can be reminded here of the more serious charges leveled against a tyrannical king in the Declaration of Independence.

[This talk of July 25, 2012 on constitutional law teachers is the first of three papers prepared for George Anastaplo’s Ad Hoc Seminars on the Constitution in Chicago, Illinois during the Summer of 2012. It should be incorporated in one of his ten Reflections volumes of “constitutional sonnets.” Four such volumes have been published:  a fifth volume is in the publication process.]

D. THE CONFEDERATE CONSTITUTION OF 1861 AS AN INSTRUMENT OF REFORM

I.

                  The Confederate Constitution was drafted (at Montgomery, Alabama, in March 1861) after seven Southern States had declared themselves seceded from the United States of America. It is a document that very much resembles the United States Constitution of 1787, retaining not only the divisions into Articles and Sections of its predecessor but also much of its language. But there may still be seen significant changes in 1861 which reflect a fundamentally different approach to government, even as many features of the 1787 document are retained, having been treated as “the first draft” for what was deliberately done at Montgomery.

It is obvious upon comparing the two documents that the changes made at Montgomery were deliberate, whatever questions students of these matters today may have about the ultimate soundness of the thinking relied on in 1861. It can also be obvious to us that the changes made at Montgomery reflect concerns about how the 1787 Constitution had come by then to be understood and applied in much of the Country, concerns that went back to the time of John Calhoun of South Carolina, if not even back to the controversies of the Alien and Sedition Acts of 1798 or even to the Ratification debates of 1787-1788. The decision to move, “at last,” in defense of what were regarded as threatened Southern interests had been triggered by the election returns in the November 1860 Presidential election, returns which anticipated the election (without any Southern “Electoral College” votes) of the then-recently-formed Republican Party that was pledged to forbid the extension of slavery to any of the territories of the United States (a pledge that promised to nullify, in effect, the Dred Scott decision of 1857).

The most dramatic change made at Montgomery in the predecessor constitutional text (of 1787) was these Southerners’ insistence upon using almost a dozen explicit references to channel slavery in the 1861 document. The words slave and slavery had been deliberately avoided in the 1787 document, however much the existence of slavery had had to be recognized and grudgingly provided for. Whatever hope there may have been at Philadelphia (including among some Southerners)  that slavery would eventually be phased out, throughout the United States, was deliberately repudiated at Montgomery (something celebrated thereafter in the March 1861 “Cornerstone Speech” by Alexander H. Stephens of Georgia, the newly-elected Vice-President of the Confederate States of America).

II.

                  The 1861 drafters do seem bolder than those in 1787 in placing restrictions upon the importation of slaves, either directly or indirectly, from Africa. Thus it is provided, in Article I, Section 9 of the Confederate Constitution:

The importation of negroes of the African race from any foreign country other than the slaveholding States or Territories of the United States of America [where there were still, in March 1861, eight States in which slavery was permitted, four of which States would later join the Confederacy], is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same.

The comparable provision in the 1787 Constitution had said,

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such importation, not exceeding ten dollars for each Person.

                  It should be recalled, however, that the 1787 drafters would have immediately forbidden all importation of slaves but for the insistence of South Carolina and Georgia (the eventual leaders of the 1860-1861 Secessionist movement) that they needed twenty more years of such importation, evidently to replace the slaves they had lost during the Revolutionary War. The Congress of the United States, as soon as it could legally do so (that is, as of January 1, 1808), forbade any further importation of slaves. By 1861, the African slave-trade had been so condemned by the international community, as equivalent to piracy, that the Montgomery Convention had to say what it did (even though there still seem to have been elements in the South that wanted to revive the international slave trade once the Confederacy was established).

The emphasis upon the African origins of the slaves in North America can remind us of how different slavery in Ancient Greece and Rome may have been, where (it is usually said) enslavement tended to be of those taken in war, which meant that slaves were likely to be similar to their masters (who could themselves be enslaved in other circumstances). We might wonder, upon contemplating modern chattel slavery, how any human beings (who had not personally done anything to deserve such a fate) could be enslaved in perpetuity by otherwise decent people. But, then, we in this Country are not really troubled upon routinely taking possession of property that had once (now centuries ago) been forcibly taken from those peoples who had “owned” it on this continent long before 1492.

III.

                  The determined frankness of the Confederates’ Constitution with respect to slavery is, as we have seen, quite pronounced. Less prominent are other changes from their former Constitution. Particularly significant, but easily unnoticed, is what happened to the 1791 Bill of Rights (the first ten amendments to the Constitution of 1787) when it was incorporated in the new document. It made sense, of course, that the amendments that had had to be added to the 1787 document in 1791 should thereafter be put instead, at appropriate places, in the 1861 document.

Thus, the Bill of Rights (when incorporated in 1861) could have Amendments I-VIII placed in Article I, Section 9 and could have Amendments IX-X placed in Article VI, something which could have been done without having to change at all the language of the ten amendments. But a change was made in the Ninth Amendment when added to Article VI, where it came to have “of the several States” added to it so as to read,

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

And a change is made in the Tenth Amendment when also added to Article VI, where it came to have “thereof” attached to it so as to read,

The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.

                  These seemingly minor changes had profound implications, tacitly repudiating as they did the notion that there was any people of the entire Confederacy as a unit. Rather, there were to be only the peoples of the various contracting States, who came together to form for limited purposes a confederation. This approach challenged that of those Northerners who tended to regard the United States as a nation (or country), a tendency that Southern spokesmen could condemn as subversive of the integrity (and ultimate sovereignty) of each of the contracting States.

IV.

                  There may be found in the Confederate Constitution repeated (and far less subtle) indications that the States are the sovereigns who band together now and then, here and there, for specific purposes. How much the States remain in control is reflected even in the only way that amendments could be made to the Confederate Constitution:

Upon the demand of any three States, legally assembled in their several conventions, the Congress shall summon a convention of all the States, to take into consideration such amendments to the Constitution as the said States shall concur in suggesting at the time when the said demand is made; and should any of the proposed amendments to the Constitution be agreed on by the said convention –voting by States-and the same to be ratified by the Legislatures of two-thirds of the several States, or by conventions in two-thirds thereof –as the one or the other mode of ratification may be proposed by the general convention –they shall thenceforward form a part of this Constitution.

The role of Congress here is merely ministerial, bound as it is (with respect to the amendment process) to serve the will of any three States.

Such a States-originating role in the amendment process (by two-thirds of the States, not merely [as in the Confederate Constitution] by three of then-seven States) is also provided for in the Constitution of 1787, but it has never been used. That is, the Congress of the United States has proposed all of the twenty-seven amendments that have been ratified by the States since 1791 as well as six other proposals that were never ratified. And, it should be noted, three-fourths of the States rather than the two-thirds prescribed in 1861, were required in 1787 for ratification of a proposed amendment (however it originated).

Reflecting the emphasis in the Constitution of 1861 upon the ultimate authority of the States is its provision (in Article I, Section 2) that

any judicial or other Federal officer, resident and acting solely within the limits of any State, may be impeached [that is, indicted] by a vote of two-thirds of both branches of the Legislature thereof [and tried thereafter in the Senate of the Confederate States].

Also indicative of an enhanced recognition of the States in the Confederation is the provision (in Article I, Section 10)

But when any river divides or flows through two or more States they may enter into compacts with each other to improve the navigation thereof.

All this emphasis on State authority (including the uses of “Federal,” a term not used in the 1787 Constitution­) is in marked contrast to that spirit which celebrated the United States in the Articles of Confederation of 1776-1789 as “a perpetual Union” and in the Constitution of 1787 as “a more perfect Union.”

V.

                  It can sometimes seem, to the student of the Confederate Constitution of 1861, that its authors believed that there must be avoided at all costs the belief that a nation was being established by the seceding States. After all, the Right to Secede depended, in large part, upon the insistence that the United States had never been a Nation but rather no more than a contractual understanding for limited purposes. The restricted scope of the association implicit in the Confederate Constitution is testified to by the determined elimination of that promotion of “the general Welfare” found in the Preamble and in Section 8 of Article I of the Constitution of 1787. (The “common defense” language is also eliminated from the Confederate Preamble [thereby making less dramatic what had just been done with “the general Welfare”?] but “common defense” is retained in Section 8 of Article I of the Confederate Constitution.)

The Framers of the Confederate Constitution continued, however, to endorse the Liberty made so much of both in the Declaration of Independence and in the Constitution of 1787 (including thereafter in its Bill of Rights). But it should be understood, they would insist, that the dedication to Liberty should not be permitted to undermine the system of slavery critical to the Confederate regime. Indeed, it was in effect argued by sometimes-desperate Southerners, their liberty (as well as even their physical safety) could not be maintained if they could not continue in perpetuity as the virtually absolute masters of their slaves. After all, it had been a great Southern (indeed, American) patriot who had proclaimed, upon urging his “countrymen” (that is, Virginians) to join the Revolution in 1775, “Give me liberty or give me death” (observing, to his fellow slave-masters, that if they continued to submit to a tyrannical British rule they themselves would be no better than slaves).

Again and again problems in nomenclature were encountered. Thus, Northerners could routinely distinguish between Free States and Slave States, while fastidious Southerners preferred the much more awkward designations of “Non-Slaveholding States” and “Slaveholding States.” On the other hand, President Lincoln usually managed to avoid the popular designation of “Border States” for the Middle States such as Kentucky and Missouri.

VI.

                  The emphasis on the States evident throughout the Confederate Constitution meant that Confederacy-wide measures were less likely to be resorted to effectively. Thus there was added to the inherited language at the outset of Article I, Section 8 about the power to lay and collect taxes, these restrictions: “but no bounties shall be granted from the Treasury; nor shall any duties or taxes on importations from foreign nations be laid to foster any branch of industry.” There can be heard here echoes of the vivid Tariff Debates in the Congress of the United States theretofore in the Nineteenth Century.

What effects would such restrictions (of which there were still others in the Confederate Constitution of 1861) have had across decades upon the economic development of an independent South? Would the South have been able to compete effectively on its own in a steadily industrialized world? Critical differences with respect to such matters between North and South became apparent even during the four years of the Civil War.

The restrictions upon Confederacy-provided bounties and the like for industrial development (including the development of ports) would probably have influenced where European immigrants were likely to go on this continent. Such differences between the systems that had been promoted theretofore North and South seem to have affected which of the two regions would be better able to wage a “modern” war. The South seems to have been hampered as well by the need always to retain on the Home Front sufficient manpower and weaponry to suppress long-dreaded slave uprisings.

VII.

                  The conventional book-keeper’s mentality relied upon in the Confederate Constitution could be seen even in the insistence that “the expenses of the Post Office Department, after the first day of March, in the year of our Lord eighteen hundred and sixty-three, shall be paid out of its own revenues…” Did this, too, tend to reinforce an emphasis upon locality? Not unrelated to this overall approach may have been the difficulty there was in the South, even more than in the North, to conscript men for the military service during the Civil War.

Locality, or geography, did bear on the institutions developed theretofore in the United States. Thus, it was believed, more and more African slave labor would be required the further South that Caucasians settled. This contributed to the belief developed among some Southerners (endorsing the “Positive Good” justification for slavery) that not only were Africans required as slaves but also that they were personally improved by thus being disciplined.

It can be noticed in passing (as we consider the influence of geography) that the overall guidance provided by the Constitution of 1787 may even be seen in how the seven already-seceded States are listed in the Constitution of 1861. When these States are allocated seats in the House of Representatives (in Article 1, Section 2), the sequence is not that determined by the order of secession or by differences in size, but rather by where each State chanced to lie. Thus, the 1861 Framers continued the North to South listing relied on in 1787, resorting (after South Carolina and Georgia are listed) to a swing to the West (with Florida’s positioning being somewhat awkward).

VIII.

                  We have noticed some of the 1861 changes made in the texts inherited from 1787 and 1791, changes that can even help us notice critical features in the earlier documents. The most dramatic may have been, of course, the explicit, indeed determined, recognition in 1861 of slavery as vital and hence perpetual for the new association. In determined opposition to this may be seen what is done about slavery and its aftermath in the post-Civil War amendments to the Constitution of 1787 –the Thirteenth, Fourteenth and Fifteenth.

A few of the other changes made in 1861 can interest scholars seeking to improve the Constitution of 1787. These include the line-item Executive veto with respect to appropriation measures, the single six-year term permitted the President, the power in the President to dismiss various officers appointed by him and confirmed by the Senate, and the opportunities Cabinet officers are provided for participation in relevant Congressional debates. But, by and large, the 1861 Constitution testifies to the soundness of the 1787 version which could be made so much use of by the Confederates.

The 1861 version is, of course, more pious in its language, beginning with the prayer implicit in the Preamble (“invoking the favor and guidance of Almighty God”). Also, “the year of our Lord” can be referred to in the body of the document (Article 1, Section 8) and, as in its 1787 prototype, Sundays are excepted in the Executive veto-override countdown. Of course, there is both in 1787 and 1861 (in Article VI) the insistence, that “no religious test shall ever be required as a qualification to any office or public trust…”

IX.

                  It can be wondered whether the piety exhibited in the Preamble to the Confederate Constitution of 1861 somehow takes the place of the humane expectations implicit on the “general Welfare” language there had been in the Constitution of 1787. We have noticed that the post-War Thirteenth, Fourteenth and Fifteenth Amendments attempted to implement the general emancipation made possible by the Civil War. Whatever reservations about slavery there had been implicit on 1787 were made explicit in these 1865, 1868 and 1870 declarations.

Abraham Lincoln’s Gettysburg Address (of November 1863) can usefully be regarded as an authoritative comment on (if not even as a refutation of) the alternative constitutional system proposed in 1861. It was emphasized there and elsewhere that a nation was brought forth in 1776, not a temporary association for limited purposes. This understanding of things is reinforced by what is said by Lincoln in his Second Inaugural Address.

Critical to the Lincoln approach, evident not only in the Gettysburg Address but also during much of his political career, was the teaching provided by the Declaration of Independence, that “all Men are created equal.” It was evident to Lincoln, as to many others, that emancipated slaves would have a long way to go before they could fully throw off the shackles by which they had been crippled for generations. Should it not also have been evident that those shackles had had perverse effects as well not only on Southern apologists for slavery but also on those (North as well as South) who had long benefitted economically and otherwise from the exploitation of Africans here as elsewhere?

[This talk of August 1, 2012 is the second of three papers prepared for George Anastaplo’s Ad Hoc Seminars on the Constitution in Chicago, Illinois during the Summer of 2012. It should be incorporated in one of his ten Reflections volumes of “constitutional sonnets.”]

E. AMERICAN SLAVES AND THE DECLARATION OF INDEPENDENCE

I.

                  What, it can be wondered, might a sophisticated slave in the United States have thought upon hearing the Declaration of Independence recited during customary Fourth of July celebrations during the early decades of the Republic? It can even be further wondered how any such slave with significant traces of white blood evident in his lineage would have regarded such patriotic exercises? Should he have considered this land as significantly his Country?

One response to the 1776 Charter of Freedom was anticipated by Samuel Johnson (in his Taxation No Tyranny book of 1775), “How is it that we hear the loudest yelps for liberty among the drivers of negroes?” And in 1758 he had observed (Idler #11), “Slavery is now nowhere more patiently endured than in countries once inhabited by the zealots of liberty.” Many a slave in North America must have entertained similar sentiments from time to time.

We can be reminded of how “double standards” can be relied upon in such matters when we recall the racial discrimination routinely continued in this Country during the Second World War. Thus, our military forces could remain substantially segregated even as we sincerely condemned the deadly  racism of the Nazis. Thus, also, I do not recall, during my three years of service in the Air Corps, any concern expressed among us about this state of affairs (just as we, as flying personnel, were not inclined to question [or even to discuss] the Obliteration Bombing of enemy cities that had become routine by then for us and our British allies).

II.

                  Thomas Jefferson, it seems, did attempt to condemn, in a draft of the Declaration of Independence, the notorious international slave trade of his day. That is, one of the grievances against the British government offered by Jefferson recalled the royal veto of efforts to suppress that trade for North America. Thus, the text he offered read,

He [George III] has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain.

                  It could be suspected that that royal veto had been urged by British shipowners who profited from this trade. Similar suspicions could later be voiced in this Country about Northern complicity in Southern slavery. Thus, Abraham Lincoln, in his Second Inaugural Address, could recall that it had not been only Southerners who had profitted for decades from slavery.

The longer that importations of slaves were permitted, Jefferson and others argued, the harder it would be ever to implement a program of general emancipation in this Country. On the other hand, it can be suspected that a system of slavery could remind observers that liberty, with all its pitfalls, has much to be said for it. Masters recognized, of course, that constant efforts had to be made to keep their slaves subjugated, whatever may be said, by some apologists for the system, about slaves “really” being content with their productive servitude.

III.

                  A decade after the unsuccessful Jefferonian attempt to blame the King for American slavery the Constitutional Convention was held in Philadelphia. The delegates from South Carolina and Georgia insisted that Congress should be forbidden, by the Constitution that was being drafted, from interfering for twenty years with the importation of slaves into the United States. Thus, they were able to get into the proposed Constitution (I, 9) this provision:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

                  South Carolina and Georgia were not ashamed to act in 1787 as Jefferson had attempted in 1776 to blame the King for having acted. These two States, it seems, had lost a significant number of slaves during the Revolutionary War (perhaps because of British inducements). And, they seem to have believed, it would be far cheaper to replace their slaves by going to in West Africa than by buying the surplus slaves of, say, Jefferson’s Virginia.

That same summer (of 1787) the Articles of Confederation Congress, sitting in New York City, enacted the Northwest Ordinance, which permanently forbade the introduction of slavery into what was then the major territory of the United States. This prohibition, which Jefferson (who was then the American Minister in Paris) had evidently been advocating, can be recognized as a critical factor in the outcome of the Civil War of 1861-1865. Indeed, it can be argued, the manpower, wealth and leadership provided by the five States that had been developed in the Northwest Territory proved decisive in the outcome of that war.

IV.

                  South Carolina and Georgia were also leaders in the Secessionist movement of 1860-1861. They supplied as well, in John C. Calhoun and Alexander H. Stephen, the two leading intellectual champions of a Slavery-based way of life in the South. World opinion had by this time come to condemn the international slave trade, so much so that the 1861 Confederate Constitution could even include this unequivocal prohibition:

The importation of negroes of the African race from any foreign country other than the slaveholding States or Territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same.

                  But by then, of course, the American South could easily produce enough slaves for its “needs.” Indeed, it had by then become a pressing concern among Southerners that new territories be opened up into which slaves could be taken. The threat posed by the Republicans, as a Free Soil Party, was evidently decisive in the move toward Secession begun by South Carolina in December 1860, less than two months after the Presidential Election of November 1861.

Whatever hope there had been for an eventual general emancipation during the first quarter-century of the Country’s existence seems to have been more in the Upper South than further down. Indeed, Alexander Stephens in a remarkable Savannah, Georgia speech (of March 1861), could insist that slavery was the “Corner-stone” of the new Confederacy, so much so that he could explicitly repudiate the severe critiques of slavery (a half-century earlier) by Thomas Jefferson and others. He could even argue (as had Calhoun before him) that slavery had proved to be a “positive good,” at least in this country, for the African slaves as well as for their masters.

V.

                  We have recalled the slave-trade grievance that Jefferson wanted to include in 1776 among the charges against the King. Only the concluding sentence of that proposed grievance was retained, at least in part, in the final draft of the Declaration of Independence –the concluding Jeffersonian sentence which had read:

Determined to keep open a market where men should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want to no fact of distinguished die, he is now exciting those very people to rise in arms among  us, and to purchase that liberty of which he has deprived the, by murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.

Thus, the King is charged, in the Declaration of Independence, “He has excited domestic Insurrections among us…”

The King is condemned repeatedly in the Declaration of Independence as tyrannical. This was anticipated in numerous speeches, including the most famous of the day– that by Patrick Henry, in which there are included these sentiments:

Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God. I know not what course others may take, but as for me, give me liberty or give me death.

It may be wondered what Patrick Henry really thought of those who allowed themselves to be intimidated into remaining slaves generation after generation.

But then it may be wondered as well what Patrick Henry would have thought about the decade-long self-repressing measures, on a very large scale, resorted to among us today in response to attacks upon the United States by a band of suicidal renegades. Our voluntary regimen, too, can be seen as succumbing to “chains and slavery.” And perhaps even worse, it can encourage would-be tyrants to believe that they can succeed in their destructive villainy with remarkably little effort or support.

VI.

                  The thoughtful slave, upon encountering the grievances collected in the Declaration of Independence, could well have marvelled that his people’s masters could not hear what they were saying. One can be reminded here of the approach that Nathan the Prophet had found it prudent to take in challenging King David’s acquisition of Bathsheba. That is, the relevant standards can be apparent enough in the dubious career of another’s misconduct.

Dreadful memories could have been invoked among North American slaves upon hearing this grievance in the Declaration of Independence:

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the Executioners of their Friends and Brethren, or to fall themselves by their Hands.

That is, such constraining of captives for one’s service sounds much like what had happened to the multitudes shipped out of Africa. And, of course, the African kidnappings had extended across generations, not just for the decade complained about the British in the Declaration of Independence.

Perhaps even more astonishing could have been the most celebrated of the grievances collected in the Declaration of Independence, that of “imposing Taxes on us without our Consent.” But, the thoughtful slave might have wondered, is not such an appropriation of another’s property without his consent critical to the system of chattel slavery long taken for granted in North America? He might have wondered, that is, whether the venerated Signers of the Declaration of Independence had truly heard what they were saying.

VII.

                  Patriotic Americans today can be thankful about the timing of the break from Great Britain. Suppose the centuries-old union with the Motherland had continued well into the Nineteenth Century. The decisive break might have chanced to come, therefore, when the British Parliament undertook in the 1820s to eliminate slavery among its subjects in the Western Hemisphere.

The Declaration of Independence might then not only have had to do without any “created equal” language but have featured instead an insistence upon the right of the colonies to continue to permit African slavery. It might have sounded, therefore, very much like the Ordinances of Secession that were insisted on by one Slave-holding State after another in 1860-1861. This might even have included an insistence that Lord Mansfield’s 1772 Somerset characterization of slavery as “odious” had been uninformed, unaware as he must have been of the Positive Good that a proper system of slavery can provide for everyone involved.

Thus, such a Declaration of Independence could not have been celebrated for centuries thereafter as the 1776 version has been, however dubious the circumstances of some of its promulgators had once been. It should be remembered, that is, that we have heard, in the Twenty-first Century, the insistence by learned disciples of the Southern Last Cause that the American Civil War could not really have been (to any significant degree) about Slavery. It may be noticed, if only in passing, that striking differences in the dominant styles of Nineteenth Century abolitionists (and of politics?) in Britain and in the United States can be said to be illustrated by the profound differences in the careers of William Wilberforce and John Brown.

VIII.

                  Even so, it can be argued that the United States needed, in its abolitionist movement, something more cataclysmic than did Great Britain. Did not the Civil War even contribute to the deepening of the American soul? Perhaps such a deepening had already been provided the British during their traumatic crises of the Seventeenth Century which had included the execution of a King.

The United States can usefully be compared here to Canada and Mexico. Canada is much tamer than the United States and hence less “interesting,” however inherently more decent. And Mexico is much more volatile than the United States and hence more “interesting,” able to secure some much-needed relief by having significant numbers intermittently slip into the United States to work and to live.

How should the thoughtful descendant today of the sophisticated slave with whom we began this Essay regard the status and prospects of his People at this time? Indeed, it can be wondered, who are truly his People—those with whom he shares a still-distinctive color (and hence a troubling history) or those with whom he shares the spiritual and intellectual treasures of Western Civilization (and hence a truly liberating heritage)? Perhaps even more difficult to come to terms with are the descendants of those ruthlessly-dispossessed and consequently largely-demoralized peoples who could be characterized in the Declaration of Independence as “the merciless Indian Savages, whose known Rule of Warfare is an undistinguished Destruction, of all Ages, Sexes and Conditions.”

IX.

                  Little has been known, in the United States generally about the culture either of the native peoples who were systematically dispossessed by European immigrants or of the peoples from whom boatloads of Africans were secured for a deadly journey across the Atlantic. The cultures of the native peoples on this continent were far richer than such severe characterization of them as that found in the Declaration of Independence would lead one to expect. On the other hand, critical to the cultures of the Africans that made them suitable for a productive enslavement was evidently their familiarity with the discipline of agriculture.

One mystery generated by the African experience in the United States can be said to be that there were relatively few slave uprisings in this Country. Their white masters routinely anticipated and dreaded far more violence from them than they ever encountered. Perhaps they expected among their slaves the kind of anger they would have had if they had been enslaved in the way and to the degree that their Africans had been.

Indeed, it can be wondered whether there has been among generations of descendants of the slaves in this country a useful sensibleness about American prospects. Thus, Joe Louis can be remembered as having said, in order to justify his self-sacrificing patriotism during the Second World War, “There’s nothing wrong with America that Hitler can fix.” Such an exhibition of a generous sensibleness on his part makes even more shocking the callous way he was treated by the Government of the United States (thereby permanently crippling him financially) because he had not handled in a sophisticated fashion the massive charitable contributions he had made with the purses earned by his Armed Forces boxing exhibitions during the Second World War—a treatment which can usefully remind us of how those of African descent among us may not be properly recognized for their determined patriotism in the most trying circumstances.

[This talk of August 8, 2012 is the third of the three papers prepared for George Anastaplo’s Ad Hoc Seminars on the Constitution in Chicago, Illinois during the Summer of 2012. It should be incorporated in one of his ten Reflections volumes of “constitutional sonnets.”]

F. FREEDOM OF SPEECH AND THE AMERICAN CHARACTER

I.

                  There is on exhibit all around us the remarkable ability the people of this Country have to discuss public affairs. That goes on all the time among us. The matters thus discussed range from neighborhood issues to global matters (matters that our Chairman on this occasion, Professor Dick Simpson [whom I first knew as a Chicago Alderman] has long proved himself adept in dealing with).

Such discussions draw on centuries of experience in effective public discourse among the English-speaking peoples. A generally-understood language is presupposed, even when foreign phrases may be used to appeal to lingering ethnic allegiances among us. Common (indeed ancient) standards with respect to right and wrong, to good and evil, are also presupposed.

We can be reminded of the political immaturity of other peoples by the frenzies exhibited elsewhere. It can sometimes seem that others may be particularly eager to be provoked. The sensitivity thus exploited can even be suspected as a means for refusing to face up to deep-rooted communal defects.

II.

                  The ability to engage in productive public discourse is presupposed by what we know as “the freedom of speech.” Liberty of the press can be regarded as that variation of freedom of speech which applies to various forms of writing. Particularly relevant there are concerns about “prior restraint,” or censorship.

It may not be generally recognized what character is presupposed in a people entrusted with freedom of speech about public affairs. I was recently asked, by a political “activist” of the Left, to sign a petition against repression in this Country. I could wonder what repression he was talking about.

That is, I have seen, for some years now all around me, a remarkable laxity in the disciplining of our common discourse. Symptomatic here is the determinedly-vulgar language to which we have had to become accustomed in public. This can be even more offensive to the sensitive observer than the casualness with which stop-signs have long been treated by many motorists.

III.

                  A salutary discipline has come to be undermined by what the United States Supreme Court has presumed to say from time to time about the First Amendment. More serious, of course, was what that Court had said for a half-century, moved by the passions of the First World War and extending through the Cold War, that did endorse harmful political repression. Now, that Court has swung to the opposite extreme in “interpreting” the First Amendment.

Thus, there is the Phelps Case (2011) in which the Court invalidated efforts by communities to discourage protests at military funerals. Deliberately provocative demonstrations are conducted by a “church” which goes around the Country challenging in this fashion such developments as official accommodations to homosexuality in our military. No one claims that either the soldier being buried or his family had personally said or done anything to warrant deliberately disturbing his funeral in this manner much to the distress of his grieving survivors.

A New York Times editorial (of August 13, 2012) suggested that State and Federal limits on such protests may well violate the Constitution. My (unpublished) letter to the editor of that date (posted thereafter on anastaplo.wordpress) concluded with these observations:

The deliberately provocative demonstrators at military funerals these days should not be punished for their ideas but rather for the perversely unseemly mode of expressing them. This is a legitimate concern for any self-governing community that respects traditional proprieties. Current legal attempts to curb atrocious demonstrations are in lieu of the horsewhippings that would have once been obviously called for.

What the Court did in the Phelps case is even worse than what it has done since then (in the 2012 Stolen Valor Case) by invalidating an effort to forbid by law the deliberate effort by anyone to claim publicly an award to him of any high military decoration that he had not received.

IV.

                  Then there is the Citizens United Case (2010). Whatever restrictions the Supreme Court seemed to recognize there, its ruling has immediately meant in practice virtually unlimited funding, by citizens and by associations, of political campaigns in this Country. We now have the remarkably unbecoming spectacle of highly-publicized individuals making personal donations in the millions in their efforts to defeat politicians that they target.

Does the size of donations make a difference? Or does it merely reflect (in typical contests) how much support a candidate otherwise has? My last conversation with the late Senator Paul Simon (whom I knew from our time together as youngsters in Southern Illinois) had even him insisting, despite his considerable reputation as a public servant, that he had just had to decline to run for re-election because he simply had not felt up to raising the considerable money he believed he would need.

Whether or not the amount of money raised makes a difference (money which is largely spent, it seems, on television advertising), the huge sums we hear of do seem to have a cheapening effect on political discourse. Certainly, it must be harmful to political morale if it should be generally believed that important elections can be bought. However all this may be, it should not be regarded as a First Amendment issue when the amounts spent on elections in this Country are restricted by law in a non-partisan manner.

V.

                   A different kind of sanctioned vulgarity may be seen –that is, may be heard- in the very language that we have had to become accustomed to in public. Official loosening up on the traditional insistence on decorum in public discourse goes back to such cases, a generation ago, as Cohen v. California (1971). Involved there was a graphically offensive sentiment about the draft expressed on a tee shirt worn by a young man in a courthouse.

Changes since then,  intensified by the Internet and Globalization, make the expressions once generally deemed deeply offensive now seem almost trivial by comparison as we become accustomed to ever-coarsening public discourse. The degree of vulgarity to which we have been casually subjected is epitomized by what a prominent movie star evidently felt free to say on the stage of the Republican National Convention in August 2012. This was before a national television audience, with the Presidential Nominee of the Republican Party soon to appear.

The problem here is primarily about what is deemed appropriate for public display, a problem that is even troubling once again (as during the last days of Princess Diana) the champions today of British royalty. Abraham Lincoln and his intimates are said to have enjoyed evidently hilarious off-color stories, something that Lord Charnwood in his fine biography of our sixteenth President could be somewhat troubled by. But that such verbal escapades were conducted entirely in private testified to a recognition of what should be kept from public view (a concern which applied as well, for the young Lincoln in politics, to any unorthodox religious opinions he held).

VI.

                  The Supreme Court, I have suggested, is partly responsible for the lamentable misconceptions these days of our traditional “freedom of speech” guarantees. This is testimony to how much has been forgotten about the rights recognized by the First Amendment. It should be emphasized that these rights, like most of those enshrined in the Bill of Rights (of 1789-1791), were recognized, not created, at that time.

Such an emphasis should promote a prudent reading of our constitutional language generally. Thus, I had occasion, in the Military Funerals Letter to the Editor from which I have already quoted, to provide this recollection of what the First Amendment drew on:

Freedom of speech, as traditionally understood in the Anglo-American tradition, developed for the public at large from the immunity routinely recognized for Members of Parliament in order that they might be both encouraged and enabled to discuss vital public issues fully. This did not mean, however, that there could not be serious restrictions understood with respect to relevance, decorum and the like.

Indeed, old-fashioned freedom of speech (which should be distinguished from the now fashionable “freedom of expression”) is likely to be far less effective and useful if no rules routinely govern its exercise.

The First Amendment guaranty here was intended to assure citizens that they could continue, as before 1791, to discuss freely and openly public affairs. Such discussions had been critical, of course, to the movement toward Independence. How such discussions much be disciplined in order to be most effective was testified to, after Independence was secured, by the rules pursuant to which the Constitutional Convention conducted its remarkable deliberations during the Summer of 1787.

VII.

                  Various long-established rights of the English-speaking peoples had been drawn on it in the Declaration of Independence. It was in part due to chance which rights were relevant for the grievances that were collected in that document. Among the rights drawn on, of course, was that freedom of speech grandly displayed in the Declaration itself.

The justice of the Cause proclaimed in that document depended, in part, on the rights to which the Colonists (as British citizens) had long been accustomed. Various of those rights are thereafter recalled, and thus claimed, in the Bill of Rights added in 1791 to the Constitution. The language of the Ninth Amendment stands as a reminder that such rights were of long standing:

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

                  Implicit in various rights are standards which suggest duties as well as immunities. It is hardly prudent to regard as repression that discipline which a people imposes upon itself in order to make it more likely that its liberty remains productive and hence secure. Otherwise, the fate of a community may be dangerously dependent on chance events (including personalities), something made much harder to regulate properly when we are subjected to the worldwide electronic media I presume to deplore in my essay, “The Future of the First Amendment,” in my 2007 book, Reflections on Freedom of Speech and the First Amendment).

VIII.

                  Contemporary domestic repression among us, I have argued, is not a major concern. Far more serious is the laxity we have indulged in with respect to the shaping of the character of citizens among us. Particularly troubling, and insistently revealing, is the deterioration we have accepted (if not perversely “enjoyed”) in our everyday public language.

Even more serious is what we as a public have permitted in the conduct of our anti-terrorism policies abroad. What has become routine (with little public outcry) is the kind of action which warranted only a few lines in the New York Times’ September 1, 2012 “World Briefing” roundup (p. A8), under the title, “Yemen: Drone Kills Suspected Militants, Officials Say”:

Military officials said Friday that an airstrike hit a vehicle carrying passengers suspected of being militants who were traveling in eastern Yemen, killing eight. One Yemeni official said the attack, the third such strike this week, was carried out by a United States drone. Seven other people suspected of being militants have been killed in airstrikes in the area since Tuesday.                                               (AP)

Thus, routinely acquiesced in by the general public is the issuance by the President of the United States of warrants for the summary execution (by drones or otherwise) of men quite distant from any recognized battlefield.

Particularly dramatic was the execution of Osama bin Ladin in his home, in circumstances which would have permitted his conveyance alive to a place where he could have been subjected to a trial in the salutary Rule of Law tradition of the 1945-1946 Nuremburg Trial of leading Nazi leaders. Instead, he was (we are told) gunned down with our President, Vice President and Secretary of State “looking on” (so to speak). The encounter ended, we are told, with the pumping of bullets into a severely wounded “prisoner of war,” hardly an edifying spectacle in the pursuit of justice.

IX.

                  Something serious has happened to the community’s traditional sense of what is “fitting and proper.” Less dramatic than the issuance of death warrants for summary executions abroad is the kind of pervasive surveillance, in the name of security, that we have all become accustomed to (if we do not even welcome) at home. There is in this a perverse kind of fear-ridden self-indulgence, something I have commented on in some five hundred pages of running commentary on our responses to the September Eleventh atrocities (a commentary already published in law reviews and soon to be available in my wordpress website).

Another form of self-indulgence here may be seen in our curious willingness (for a decade now) to fight a series of “wars” with relatively little sacrifice called for from our people at large. Particularly unbecoming is that surprisingly little has been done to pay for the wars we have waged since September 2001, even as we (with less than one-twentieth of the world’s population) continue to rely upon forty percent of the world’s armaments. The only ones who immediately pay for all this, it can sometimes seem, are the families of those killed in action, who cannot even be assured that they can bury their dead with dignity.

The underlying defect in how we have responded to the September Eleventh atrocities is the unseemly lack of a sense of proportion in the measures to which we have routinely resorted. Many of our deeply questionable measures are exhibited in full view of the public. But relatively little has been said in protest by the public at large, not because of any fear of public penalties but (it seems) because we simply do not see that this is not the way we should be “protected” by our government, all of which suggests something troubling about the current national character.

[These remarks on freedom of speech and the American character were prepared for the September 17, 2012 (“Constitution Day”) celebrations at the University of Illinois (Chicago) (a celebration arranged by Professor Dick Simpson). They should be included in Volume VIII (Reflections on Crime, Character and the Constitution) of George Anastaplo’s ten volumes of “constitutional sonnets.”]

H. EPILOGUE

We can be reminded, especially by a determined system of chattel slavery, of Aristotle’s observation that all human actions aim at the Good. Such an aim may be revealed in how talented Southern spokesmen (such as John C. Calhoun and Alexander H. Stephens) could be moved to argue for the Positive Good (for slaves as well as for their masters) of the slavery system in the United States. Such an assessment can even be said to be taken for granted by the concluding item in the list of grievances in the Declaration of Independence, where the British are condemned for having promoted domestic insurrections.

It should be instructive to compare Southern chattel slavery with the extensive system of slavery evident in Ancient Greece and Rome, a system that usually relied much more than our Southern system ever did on prisoners of war. Did not our Southern system resemble much more the Spartan exploitation of a subject “race,” their Helots (who could be dealt with ruthlessly whenever their masters became fearful)? A system of slavery supplied primarily by prisoners of war seems to be rationalized by Hugo Grotius in his treatise.

A telling modern repudiation of thoughtful Southern advocates for African slavery in this Country during the Civil War period may be seen in the occasional insistence by some contemporary Southern intellectuals that the desire to perpetuate slavery had ­not­ been the primary cause for the 1860-1865 Secession. These Champions of the Lost Cause, moved in contemporary circumstances by an understandable desire to aim at the good as currently understood, are obliged to insist that their much-venerated forebears could not have really meant what they seemed to say about slavery in justifying their acts of Secession (as well as in acting as they had to promote the War of 1812). We can be reminded by such efforts, both past and contemporary, how much discipline is needed to avoid contrived interpretations of the documents that have shaped the remarkable constitutional system for this Nation.

[The remarks in the Epilogue were prepared for George Anastaplo’s October 1, 2012 Seminar on Xenophon and Edmund Burke in the Basic Program of Liberal Education for Adults, The University of Chicago. See, on desperate contemporary efforts to make “the Lost Cause” of Southern Secessionism more respectable, the concluding Essay in George Anastaplo, Reflections on Slavery and the Constitution (Lexington Books, 2012). See, also, George Anastaplo, “Slavery, the Civil War, and the Development (Spiritual as Well as Material) of the United States” (posted on anastaplo.wordpress 03/12/2012).]

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